Appeal No.	 EAT/33/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D G DAVIES CBE
MISS A MACKIE OBE

MR K BADAMCHI-ZADEH	APPELLANT

SHEPHERD CONSTRUCTION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR K BADAMCHI-ZADEH
Appellant in Person	

	JUDGE PETER CLARK:	This appeal came before a differently constituted division of the Employment Appeal Tribunal on which I sat for a preliminary hearing on 1 July 1998.  The Appellant did not appear on that occasion, and a telephone enquiry as to his whereabouts proved fruitless.  In those circumstances, the Respondent being present to observe, we proceeded to consider the appeal on the papers and dismiss it for the reasons given in a judgment which I delivered on that day.  I refer to that judgment for the background to this case.

	On 12 July the Appellant wrote to the Registrar asking for reconsideration of his appeal.  It transpired that he had written to the EAT by a letter dated 24 June requesting an adjournment on the basis that he was attending a family funeral.  That letter was not put before us on the last occasion.

	In these circumstances I directed that a review take place under Rule 33 of the EAT Rules and the case be restored to the list to allow the Appellant to make representations in support of his appeal.

	He has submitted a skeleton argument, supplemented by his oral submissions before us today.  The thrust of his case is that the Tribunal chaired by Mr J M Q Hepworth which heard his complaint of unfair dismissal ought simply not to have “preferred” the evidence of the Respondent’s witnesses.  It should have decided the case on the facts as he puts it.  Further, it was wrong to conclude that proper consultation would have made no difference to the outcome in circumstances where a second Tribunal, chaired by Mr C T Grazin, which heard the Appellant’s complaint of racial discrimination arising out of his dismissal by the Respondent, found that inadequate attempts were made to find him alternative employment within the Shepherd Group of Companies.

	As the Court of Appeal made clear in Kent County Council v Gilham (1985) ICR 233, the fact that two Tribunals reached different conclusions on the same or similar facts does not mean that one or other has made an error of law.  It is plain that these two Tribunals took different views of the facts.  It is their prime function to find the facts on the evidence before them.  In our view both approaches were equally permissible.

	Dealing with the decision under appeal, the Hepworth Tribunal accepted the Respondent’s witnesses’ evidence that the Appellant had been properly selected for redundancy and that reasonable attempts had been made to find him alternative employment.  On those findings the Tribunal was entitled to conclude that proper consultation would have made no difference to the result in accordance with the Polkey principle.  We cannot revisit the evidential basis for those findings.  In these circumstances we have concluded that this appeal raises no arguable point of law and accordingly, it must be dismissed at this ex parte preliminary hearing stage.