How council got a shoeing as discrimination appeal kicked into touch

Published on Sunday 13 December 2009 20:13

THE great rugby commentator Bill McLaren had a favourite Hawick euphemism to describe the treatment accorded a hapless opponent who had dropped the ball and was defenceless on the ground as the pack swept mercilessly over him. "A shoeing" sounded somehow more decorous even if the bruising was no less painful.

The legal team representing Glasgow City Council in its dispute with former employee Clarence Bvunzai was well and truly shoed last week when Lord Reed, with the agreement of Lords Carloway and McEwan, delivered an extraordinary broadside from the bench.

"It's not too uncommon during an actual hearing for judges to indicate their irritation with one party or the other," says Iain Mitchell, QC, "but usually when the written judgment appears it is couched in more moderate terms."

Not in the case of Clarence Bvunzai v Glasgow City Council.

In his judgement Lord Reed let the council (the respondents) have both sets of studs. "Before considering the merits of the appeal, we feel constrained to remark on the grotesque length and complexity of these proceedings. Almost nine years have passed since the appellant submitted his application to the Employment Tribunal. Four years have passed since this court remitted what appeared to be a relatively straightforward question of computation of the appropriate compensation.

"The time and resources expended by the tribunal system and by the court, principally as a consequence of the position adopted by the respondents, are disproportionate to the amount which has in reality been at stake between the parties since the issue of discrimination was finally resolved in the appellant's favour.

"The respondents' undiminished appetite for further litigation was however apparent at the hearing of the present appeal. We have borne this in mind in our approach to the disposal of the appeal."

The case involved an allegation of racial discrimination against the council by Mr Bvunzai, who had worked for Glasgow Council social work department since 1977. He held various posts involved with residential care of the elderly and was depute unit manager of a care home in 2000 when he applied for a job as unit manager of another care home.

He was not appointed and submitted an Employment Tribunal application in January 2001 claiming that he had been the victim of racial discrimination. A tribunal found in his favour and awarded him 48,681 in compensation in November 2003.

Glasgow Council successfully took the case to the Employment Appeal Tribunal but Mr Bvunzai in turn won the subsequent appeal to the Court of Session in late 2005. Lord Reed was on that bench when it reviewed the facts of the case and even then was blunt in the terms of its determination that Mr Bvunzai was a victim of racial discrimination based on the conduct of council officials involved in the appointment process.

The Court of Session bench remitted the case back to the Employment Tribunal for what it intended to be a straightforward reassessment of damages that would deal with several technical errors the original tribunal had made in its calculations.

However, the City Council endeavoured through yet another Employment Appeal Tribunal to reopen the case and introduce new evidence and new legal issues. Clearly Lord Reed and his fellow judges were not amused to find a case that they thought had been settled on the facts and on the law in 2005 reappearing before them four years later.

They said the Employment Appeal Tribunal had been wrong to entertain the appeals and sent the case back to the employment tribunal to recalculate the damages due to Mr Bvunzai with no new evidence to be admitted and an exhortation just to get on with it.

Lord Reed also picked up on the fact that Mr Bvunzai had been representing himself in preparing his appeal and at various stages in earlier proceedings. However, late in the day he had been successful in an application to the Free Legal Services Unit (FLSU) of the Faculty of Advocates for pro bono representation in the shape of Iain Mitchell, QC.

Lord Reed acknowledged the effectiveness of Mr Mitchell's contribution. "The willingness of counsel and solicitors to provide their services reflects the best traditions of the legal profession, and was of great assistance to the court."

Mr Bvunzai is equally warm in his praise of the way in which Mr Mitchell transformed his case over the weekend before the hearing at the end of November. "I was prepared to go ahead with the appeal myself but looking back on it, the way Mr Mitchell handled the case was well beyond anything I could have managed. I was totally amazed at the way he got inside the case in such a short time. He amended the ground of appeal and killed the council argument for reopening the original decision flat."

Mr Bvunzai took early retirement from his job with Glasgow City Council and is in his third year of a law course at Strathclyde University. It was through the university's pro bono legal advice clinic that he was urged to apply to the FLSU.

Matters moved very quickly after that. Mr Mitchell says he heard on the Friday that instructions were on the way. He received the substantial files on Sunday. He rewrote the grounds of appeal and submitted them late on Monday night for a Tuesday hearing.

"It was largely a matter of clearing the undergrowth that was suffocating the case. I think their lordships were amenable to the logic of the argument."

While brushing aside comparisons with the arrival of the Seventh Cavalry in the last reel of a western Mr Mitchell has raised the profile of the FLSU with his intervention not only on behalf of Mr Bvunzai but also with his opinion for the Scottish Young Lawyers Association that clarified the basis of action for breach of contract when traineeships are withdrawn.

The FLSU has formalised since 2003 the previous word-of-mouth approach of the faculty to provision of free legal advice and/or representation. Mungo Bovey, QC, says the number of applications is relatively small at present while the FLSU establishes its profile but is aware of a substantial amount of unmet need for representation, specially in employment disputes where absence of legal aid encourages parties to start off unrepresented.

Because it provides its services for nothing, the FLSU is unable to apply for expenses from the other side when it wins. Mungo Bovey expects an approach to made to the Scottish Government to replicate the system in England where expenses can be claimed and paid into a pro bono trust fund. "There is a goodly number of cases with merit that at present cannot afford representation. The FLSU should offer a safety net."

Clarence Bvunzai sees it more simply. "All I did was apply for a job and then everything unravelled," he says. "The facts were clear but there was a danger the facts weren't going to be enough."