Appeal No.	EAT/1214/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 July 1998

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR J R CROSBY
MR D A C LAMBERT

DR XION-JIAN WU	APPELLANT

LLOYDS REGISTER OF SHIPPING	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS MONAGHAN
(of Counsel)
Appearing under the ELAAS Scheme on behalf of the Appellant	

	MR JUSTICE KIRKWOOD:	This is the preliminary hearing of an appeal by Dr Wu from the decision of an Industrial Tribunal sitting at Stratford finding that the appellant was unfairly dismissed; dismissing his complaint of wrongful dismissal; dismissing his complaint of racial discrimination and finding that in respect of unfair dismissal the basic compensatory awards would be reduced to nil.

	The Industrial Tribunal heard this case over some 12 days between the end of July 1996 and the end of February 1997 and gave extended reasons for its decision, sent to the parties on 6th June 1997.

	Dr Wu was employed by Lloyds Register of Shipping from 2nd July 1990 until 16th June 1994. He was a specialist Senior Structural Engineer. On 31st May 1994 he was assigned to the Development Group in the Offshore Division. There he had responsibility for coding New Wave into the Platform Analysis Lloyds System, which was a computer software system. New wave, we understand to have been a project in the field of hydrodynamics which was the property of Shell Oil. 

	The terms of the contract of employment include provision at paragraph A12(i):

“You will devote the whole of your time, attention and skill during business hours to serving the interests of LR [Lloyds Register] and shall not at any time participate or be concerned in, either directly or indirectly, any kind of business which in the opinion of LR competes with, or is detrimental to, the business of LR. Nothing in this clause, however, shall prohibit you from holding shares or securities of any company by way of bona fide investment only.”

	The Development Group was managed by Mrs Bradley. Prior to and on 15th June 1994 Mrs Bradley became concerned that the appellant was, at least, involved in doing other work outside his own remit or that of the Development Group in breach of clause A12(i). 

	Mrs Bradley was going on leave from 16th June. On 15th June she reported her concerns to Mr Bainbridge, a Director of Lloyds Register, Offshore Division.  Mr Bainbridge held a disciplinary meeting that day, 15th June 1994, and dismissed Dr Wu summarily. An internal appeal was heard on 28th June and a final appeal on 31st August 1994. The appellant was unsuccessful throughout that process.

	On 15th September 1994 he applied to the Industrial Tribunal complaining of unfair dismissal, dismissal without notice, which the tribunal took to be wrongful dismissal, and racial discrimination.

	The Industrial Tribunal looked into the disciplinary processes very carefully and found the dismissal to have been procedurally unfair. It found that the procedural unfairness was not cured in the appeal process. Dr Wu was therefore entitled to succeed on the unfair dismissal case. 

	The Industrial Tribunal then considered the race discrimination aspect of the case. In it Dr Wu had complained that he was kept in a low level working position and had no chance for promotion. He complained of Mrs Bradley’s promotion to be leader of the Development Group and of his own removal from the Group at an earlier stage, saying that racial discrimination was the major reason for his removal. He complained of Mrs Bradley having used the words “Chinese Conspiracy”. He complained of Mrs Bradley making complaints about his work. He complained about white colleagues making longer private calls on the office telephones than he did and his use of the telephone was something that attracted attention in the disciplinary process. He complained generally of white colleagues spending time drinking and playing and chatting on the telephone without any hint of disciplinary process against them.  Also during the hearing before the tribunal Dr Wu raised the question of other employees doing private business at their place of work at Lloyds. 

	The Industrial Tribunal considered the question of racial discrimination in paragraphs 55 to 64 of the extended reasons. The tribunal noted that the complaint related to grading, training, transfer, promotion and discipline. They noted that the allegations made by the appellant were made for the very first time in his Originating Application. He had never used the grievance procedure and had never raised any of these questions before. None of these questions were raised in the appeal hearings. 

	Having noted those matters the tribunal went on to consider the allegations concerning two other employees doing private business at the Lloyd Register’s premises. 

	They heard the appellant’s allegations. They rejected his evidence in respect of both of those matters.

	The tribunal considered the “Chinese Conspiracy” remarks by Mrs Bradley. They looked into the circumstances of those remarks. They found that such remarks did amount to racial harassment. They made that finding having heard evidence that Mrs Bradley admitted having made them, explained that she had said that in a joking manner and apologised if any offence had been caused. The tribunal credited Mrs Bradley for her frankness in that regard, but did find that the remarks amounted to racial harassment. The tribunal continued:

“62 ... However, no such remark was made on 16 June 1994, as Mrs Bradley was not at work on that day, and no specific date is attributed to any of the five occasions complained of. Therefore the Applicant is out of time for complaining of those occasions, and we do not find it just and equitable to consider the complaint in respect of those remarks under Section 68(6) of the Race Relations Act.”

	The tribunal having in mind the other points about grading, transfer, promotion and discipline and having looked at the evidence that there was on the subject of race discrimination found this:

“64    Apart from the admitted remarks of Mrs Bradley, we find no evidence whatsoever of racial discrimination against the Applicant by the Respondents or any of the Respondents’ employees.”

The tribunal dismissed the complaint of racial discrimination.

	The Industrial Tribunal then considered the wrongful dismissal claim. They considered it in detail in paragraphs 71 through to 81 of their extended reasons, and in the course of that they not only found that the appellant’s conduct amounted to a serious breach of trust, but they also found that the behaviour they found to have occurred was consistent with furtiveness and they preferred the evidence of two witnesses for the respondent to that of the appellant. It was in those circumstances that the tribunal considered that any basic and compensatory awards would be reduced to nil.

	The appellant made a lengthy application for a review of the Industrial Tribunal’s decision covering a great many points and indeed asking the tribunal to consider new evidence. The application for review was rejected by a letter dated 27th August 1997 (which is at pages 47 and 48 in the bundle). 

	Dr Wu lodged his own Notice of Appeal against really all the findings of the Industrial Tribunal and as drafted it amounts in essence to a challenge to findings of fact by the Industrial Tribunal.

	Dr Wu will understand that an appeal lies to the Employment Appeal Tribunal only on a point of law. It is no part of the function of the Employment Appeal Tribunal to reconsider or re-weigh factual findings in any sense, unless they have themselves been reached by error of law. That is to say findings of fact based on no evidence at all or findings of fact which no reasonable tribunal could possibly have come to on the evidence that the tribunal in fact had before it.

	Dr Wu has been represented by Ms Monaghan who has put before us amended grounds of appeal.

	The first ground relied upon is that the Industrial Tribunal made no findings on some of the appellant’s complaints of discrimination on the ground of race. In the absence of any findings the reason for dismissing the complaints was inadequate.

	In looking at the extended reasons, as a whole, it is plain first of all that the tribunal had the grounds of complaint in mind. Secondly, that the dismissal itself apart, everything was out of time, and that is dealt with in paragraph 56. As indeed is the circumstance that there had not been a whisper of a complaint by Dr Wu prior to his Originating Application to the Industrial Tribunal. Furthermore, the Industrial Tribunal found that there was no evidence whatsoever of racial discrimination against the appellant by the respondents or any of the respondents’ employees. It is clear that the Industrial Tribunal looked for evidence, they found none, and in our judgment the way in which the Industrial Tribunal dealt with that aspect of the case does not lend itself to an arguable ground for appeal.

	The second ground of appeal in the amended grounds is that the tribunal erred in law in failing to provide adequate reasons for concluding that it would not be just and equitable to extend time in respect of their finding of racial harassment as set out at paragraph 62 of their decision. 

	That was the paragraph in which the tribunal dealt with the remarks about a “Chinese Conspiracy” made by Mrs Bradley and they simply say:

“... we do not find it just equitable to consider the complaint in respect of those remarks under Section 68(6) of the Race Relations Act.”

	Counsel has helpfully referred us to an unreported decision of the President in the case of  Miss Wade v West York Police and others EAT/899/96 and EAT/900/96, that decision contains this short passage:

“We also accept that the Industrial Tribunal should have dealt with the time limit point more fully and carefully than it did. Balancing the injustices between allowing the incidents to form part of her case and disallowing them was what was required under the “just and equitable” provision contained in section 76(5) of the Act. Simply to say that:
“We do not take the view that it would be just equitable to extend the time limit”
is to assert the conclusion without the reasons leading to it. The appellant is entitled to a reasoned decision.”

	Having regard to that passage in that decision of the President, we have reached the conclusion, albeit with some considerable hesitation, that there is a point of law, just arguable, under 2 of the amended grounds of appeal.

	The third of the amended grounds of appeal is that the tribunal erred in concluding that the appellant’s basic and compensatory awards should be reduced to nil, in circumstances that the tribunal failed to provide the appellant with an opportunity to address the tribunal before reaching their decision; and that the tribunal failed to identify the conduct relied on in support of their decision.

	In its reasons for rejecting the application for review the Industrial Tribunal said this:

“Much more detail was known of the factors which may lead to a reduction of an award or to not making an award on the grounds that it would not be just and equitable, than is frequently the case. It is inconceivable that there is any other matter which could affect the decision. It is accepted that the Tribunal was not addressed on the question of the reduction of the award or what was just and equitable. However, all matters which could possibly have formed the basis of such an address were ventilated fully. Mere repetitions of submissions, which failed to find favour under one guise, will not make them more successful under another. The very serious view the Tribunal took, of matters which went to the justice and equity of making an award, and matters which would go to a reduction of an award, is clear form the decision.”

	However that may be, we find that it is arguable that the decision as to the award is flawed by the recognised failure to give the appellant an opportunity to address the tribunal on that aspect before its decision was made. Accordingly, we would allow paragraph 3 of the amended grounds of appeal to go to a full hearing and with that argument there will be the associated argument for consideration on appeal that the tribunal failed to identify the conduct relied on specifically in support of that decision in its extended reasons.

	The fourth ground of appeal reiterates ground 6.1 in the grounds of appeal put in by the appellant himself. That is in essence a perversity argument. Ms Monaghan who today represents the appellant draws our attention to single matter. 

	The Industrial Tribunal found at paragraph 58 that though Dr Richards:

“... was a director of a company started by his wife, it did very little business, and we have no hesitation in finding, that he did not conduct a private business from the Lloyds Register office as alleged by the Applicant, or at all.”

The point drawn to our attention today is that the contract of employment contains this passage:

“During your employment as an exclusive Surveyor to LR you must not undertake any other employment or occupation whatsoever without express sanction from Head Office.”

	It is submitted, although there is no specific finding about it, that Dr Richard’s contract of employment was in precisely the same terms and that whether or not he did any private business at Lloyds Register’s premises, there is a finding that he was a director of his wife’s company. That, it is submitted, shows that the finding of the Industrial Tribunal at paragraph 58 of the extended reasons was perverse and that in turn it is said goes to the finding overall on the race discrimination case.

	So far as this aspect of the appeal is concerned, the Industrial Tribunal had before it the material documents, the material evidence, the material facts. What the Industrial Tribunal considered relevant and not relevant, what weight it attached to the various aspects of the evidence, and what inference was to be drawn one way or the other were all matters for the Industrial Tribunal as the tribunal fact or as it is sometimes called the “industrial jury”, and we do not find that there is an arguable case of perversity under this ground of appeal. 

	It follows that the appeal will be allowed to go to a full hearing on numbered paragraphs 2 and 3 of the amended grounds of appeal alone. We will give leave to amend the grounds of appeal in the form that Ms Monaghan has handed in today. The grounds of appeal set out in Dr Wu’s Notice of Appeal dated 27th July 1997 and in paragraphs 1 and 4 of the amended grounds will not go to a full hearing and will not be arguable hereafter.