Appeal No. EAT/484/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20th October 1993

	Before

	HIS HONOUR JUDGE J BULL QC

	MR K M HACK JP

	MR S M SPRINGER MBE

MR L CHAUDHRY	APPELLANT

H E T S	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS S HARRISON
(Of Counsel)
Messrs Johns & Saggar
Solicitors
193-195 Kentish Town Road
London
NW5 2JU

	JUDGE J BULL QC:  This is a preliminary hearing of Mr Chaudhry's appeal to us against the decision of the Industrial Tribunal which sat at Leeds when it heard Mr Chaudhry's complaint of racial discrimination on the 13th April 1992.  The Full Reasons for that decision were sent to the parties on the 5th May 1992.  In addition Mr Chaudhry has written a number of letters both to Ms Veronica Selio, the Registrar of the EAT, and to his Solicitors concerning his dissatisfaction and including some matters by way of fresh evidence, all of which we have read and considered.

	Mr Chaudhry is a very experienced and highly qualified gentleman.  To much practical experience, gathered in well over 25 years in practice, he adds numerous qualifications.  Not only is he a graduate in highway engineering but he has also gained full membership of the Institute of Highway and Transportation Engineers.  He holds a post-graduate diploma in highway engineering from Surrey University in addition to many other qualifications.

	In March 1991 he answered an advertisement for the position of Materials Engineer for the Materials Laboratory at Ossett near Wakefield which he saw in the journal "New Civil Engineer".  On receipt of his application he was sent by his prospective employers a job description and application form which he duly filled in and returned to them.  This he filled in in some detail and with considerable skill.  In all, 12 applicants replied, from which a short-list of 4 was drawn up by the Assistant Director of Technical Services, Mr Sladdin, together with the Chief Laboratory Engineer, Mr Oliver.  Mr Chaudhry is aggrieved that his name was not included in that short-list and describes its omission from that list to racial prejudice.  This the Respondents completely reject.

	The case, the Industrial Tribunal found, falls to be decided under the Race Relations Act 1976, in particular, but not exclusively, under Sections 1(1)(a) and 4(1).  The Tribunal enquired into the facts and it is their duty and not our duty to arrive at the facts.  They heard evidence, except in the case of Mr Oliver, where they accepted a written statement, because they were told that, he was then, seriously ill.  Mr Chaudhry suggests now, and has repeatedly asserted, that his background, experience and qualifications are such as to ensure his inclusion in any short-list.

	In addition, Mr Chaudhry complains that the Tribunal wrongly admitted the evidence of Mr Oliver, asserting that it should have been served on him prior to the hearing as required by Rule 7(3) of the "Industrial Tribunals (Rules of Procedure) Regulations 1985" and that he was therefore deprived of the opportunity of cross-examining that witness.

	Last, Mr Chaudhry complains that the Industrial Tribunal made an error in the interpretation of the specialist qualifications.  He says that "soil mechanics" was the only suitable specialist qualification for a Materials Engineer on a highway and that such a qualification is internationally recognised as being appropriate and that Mr Sladdin was in error in failing to seek a person so qualified for the vacant post.

	As Mr Chaudhry himself points out the Industrial Tribunal did not accept his view and since it is their duty to decide the facts and not ours this is a determination by the Tribunal which is not open to review in the EAT.

	So far as the procedural point is concerned Mr Chaudhry wrote a letter on 13th January 1992 to Mr Rogerson, the Chief Legal Adviser to the Respondents, pointing out that it was true that he would be representing himself in his case, but he had engaged a firm of solicitors as his advisers only.  He had then added these sentences:
"You are quite welcome to send me any documents directly any time.  If, however, you choose to send them to my advisers, you may do so.  For the latter the address is as follows:"

then he sets out the name and address of his solicitors, together with their telephone and fax numbers.  It is unfortunate that the letter which was, is as conceded, served upon the solicitors attaching to it the proposed statement of Mr Oliver, well within the time limit, somehow did not reach Mr Chaudhry before the hearing at which he appeared before the Industrial Tribunal.  But we cannot, and do not, express any view upon any liability that there may be for that.

	Ms Harrison, who has conducted this matter with noteworthy ability in her presentation of the arguments for Mr Chaudhry, reminds us of the responsibility upon the Industrial Tribunal to require the employer to give an explanation of, not only why the Applicant was not selected, but also as a corollary, why others were so selected, and she does so in accordance with the decision in the case of King v. Great Britain-China Centre [1992] ICR 516.  In our view the Industrial Tribunal seems to have directed its mind to that point and looked at the criteria upon which those selected for the short-list were chosen.  We have looked with care at this point but it seems, in particular, having regard to the finding at paragraph 10 that they did so.  Paragraph 10 reads in this form:
"Having considered the evidence carefully the tribunal is quite satisfied that the respondent selected for the short-list purely on the basis of the information given on the application forms and what that application told them in relation to their specific needs as indicated above."

It may well be that the employers adopted the wrong criteria for their decision to select for this short-list and would have been better advised to adopt the qualifications for selection urged by Mr Chaudhry, but that is not a matter for us, nor indeed for the Industrial Tribunal.  Therefore we have to say, with reluctance, because Ms Harrison has put this case very fairly to us and with great courtesy, that we cannot allow this appeal to proceed because there is here no point of law, and it must therefore be dismissed.