Appeal No. EAT/288/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 July 1992

	Before

	THE HONOURABLE MR JUSTICE HUTCHISON

	MRS M E SUNDERLAND JP

	MRS P TURNER OBE

MR J C E MOORE	APPELLANT

MARCONI COMMUNICATION SYSTEMS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	P R E L I M I N A R Y   H E A R I N G

Revised

	APPEARANCES

For the Appellant	MS M MALIK
	(OF COUNSEL)
Robin Thompson & Partners
Solicitors
Wentworth House
Eastern Avenue
Gants Hill
Ilford 
Essex 1G2 6NH

	

	MR JUSTICE HUTCHISON:  This matter comes before us by way of preliminary hearing, that is to say on the basis that it is a case which it is thought discloses no arguable ground of appeal, on appeal from a decision of the Bury St Edmunds Industrial Tribunal of the 18 February 1991, following a hearing on 1 February 1991, when they unanimously decided that the applicant had not been discriminated against by reason of his sex.

	We propose to deal with this case quite shortly because it is in our judgement absolutely hopeless and discloses no conceivably arguable ground of appeal.  The grounds which are advanced are said to be two, and we are indebted to Miss Malik for her helpful skeleton argument:
(i)The Tribunal erred in making a finding on the application of the Sex Discrimination Act 1975 in that it heard no evidence from either the Respondent or the Appellant relating to the matter with which the Tribunal was concerned and to support its findings of fact.

(ii)The Tribunal admitted as evidence from the Respondent a document (7) which the appellant had been precluded from challenging by the failure of the pre-hearing assessment hearing to order discovery of the background information documents, specifically document number 3, requested by the appellant on 7 June 1989."
	We can dispose straight away of the question of discovery.  There seem to have been two forays in relation to discovery one of which when discovery was refused went to this court and the appeal against the refusal of discovery was dismissed by the President Mr Justice Wood MC on 17 July 1989.  It seems that there was then a further application for discovery in December 1990, when discovery was again refused.  That order could have been but was not appealed and there plainly is nothing in complaints in relation to discovery.  The point revolves around the importance of a document dated 8 September 1981, a letter from Marconi International Marine Co Ltd, not the same company but a company in the same group as the respondents to this appeal, in which it is clear that they were, on 8 September 1981, dismissing the applicant from his post.  The relevance of that letter, quite unequivocable in its terms, will become apparent in the course of a few sentences.

	As to the first point the simple fact here is that there was not a scrap of evidence before the industrial tribunal on which they could have begun to find that there was discrimination in the matter of employment under Section 1 of the 1975 Act against the applicant, Mr Moore.  He complains about being denied a second interview in relation to a job opportunity which was advertised in September 1988 and for which he attended an interview on 11 October 1988.  It was an interview for among others test engineers and technicians, which is a job falling within the area of his expertise but he was declined a further interview.

	We do not propose to recite at any length the Industrial Tribunal's full and careful reasons but what emerges with perfect clarity is this as they say in paragraph 10:-
"The applicant has been quite unable to adduce in evidence to the Tribunal any direct evidence that the female comparator, to which he alludes in his argument, exists."
 - and that is quite simply the position.  The only material to which the applicant could point was the fact that he had applied for this post and had been refused a second interview.  There was not a scintilla of evidence to raise the supposition that there was here any discrimination on sex grounds.  Indeed, we do not even know and nor did the tribunal know who was employed for that post.  Miss Malik, however, submits that there was some evidence in front of the tribunal from which they could draw an inference.  She points to the fact that in paragraph 10 they correctly direct themselves that it is open to them in an appropriate case to draw an inference from the refusal of the respondents to complete questionnaires about their policy in relation to employment and matters of that sort.  Of course, it is well known that that is the position and the fact is, apparently, that in this case they did not answer the questionnaire.  The ability to draw inferences of that sort, and inferences from the fact that apparently numerous letters were sent by the applicant to the respondents seeking details of their recruitment policy, is something which exists in a case where there is, as it were, some factual basis for the supposition that discriminatory policies exist and were put into practice:  here there were simply none.

	Indeed, the Industrial Tribunal in their finding and in reliance upon the disputed letter of 8 September, were able to reach the conclusion that there was a perfectly good explanation for the fact that the respondents were unwilling to employ the applicant.  That letter showed that he had been dismissed and, putting it compendiously, it is plain that in the light of previous relations between associated companies of the respondents and the applicant, they were likely to be reluctant to consider employing him again.

	The truth of the matter is he complains because they did not give him a job and he dresses up that complaint as an assertion of discrimination on grounds of sex.  There is not and was not before the tribunal any of evidence which could legitimately support that and Miss Malik was really driven to accept, or almost to accept, that if it is open to this applicant to invite the court to draw inferences favourable to his case from the failure to complete the questionnaire, it would be open to any disappointed job applicant who failed to obtain engagement to embark on some sort of inquisitorial exercise against the would-be employers and if they failed to co-operate to invite the tribunal to conclude that he had proved a case of discrimination on sex grounds.  That is not the law: it is not how the Act is administered.  The fact is that there was here no evidence on which this claim could be supported.  The tribunal's decision was plainly right: this appeal is hopeless and must be dismissed.