Appeal No.	EAT/1425/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 April 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
LORD  DAVIES OF COITY  CBE
MR J A SCOULLER

MR I P DAN IYAN	APPELLANT

FIRM SECURITY GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

	MR JUSTICE LINDSAY:	We have as a Preliminary Hearing before us the Appeal of Mr I P Dan Iyan in the matter Dan Iyan -v- Firm Security Group Ltd.  Mr Dan Iyan has not attended before us today but has submitted written submissions and a written skeleton argument.

	On 14th May 1998, Mr Dan Iyan lodged his IT.1.  Originally, it had annexed to it an Appendix A.  We have not seen that original Appendix A, but it did claim racial discrimination.  On 3rd June 1998, the Appendix A was amended and the form which thereafter existed consists of some two close pages of typing.  It is very difficult to discern details of any allegation of racial discrimination from that Appendix A in the amended version.  Although, in the box that the IT.1 provides, racial discrimination is mentioned, in the body of complaint the terms “discrimination” or “harassment” or “victimisation” are not even mentioned, although it is quite clear the complaint is certainly not that of an uneducated person.

	On 10th August 1998, there was a hearing before the Employment Tribunal and on 1st October 1998 what seemed to us to be long, well reasoned and thoughtful reasons were promulgated by the Employment Tribunal.  The unanimous decision was that Mr Dan Iyan’s claim for unlawful racial discrimination failed and was dismissed.  The matter had proceeded before the Chairman, Ms V K Gay and two members, Mr C C Goldwater and Mr C James, and had begun with a careful attempt by the Chairman and her panel to find out quite what the true complaint was.

	In para 2 of their decision they say this:

“At the start of the hearing in the usual way the Tribunal set out to identify with the parties the precise issues of allegations of racial discrimination so that the parties would know the issues with which the Tribunal was concerned and the Tribunal would be able to ensure that it received all relevant evidence and could exclude irrelevant evidence.”

	The Employment Tribunal then considered a complaint of indirect racial discrimination and the question for it there was whether it was fair to allow it to be run at the late stage at which it emerged.  In their para 3.2.B on our page 8, they say:

“In the absence of the parties the Tribunal considered whether the Applicant should be allowed to pursue this allegation of indirect racial discrimination which was not mentioned or recognised in the Originating Application and determined that it was not a claim which it was appropriate to permit to continue and they gave 6 reasons for that.”

	They turned then to the question of victimisation and on that they held, in their sub-paragraph D:

“The Tribunal determined the Applicant should not be allowed to make or pursue at this Hearing a claim for victimisation.”

	And reasons were given for that decision, which included this:

“We are satisfied that the proposed victimisation is either a matter about which he did not intend to complain or is a matter which is intended to spring upon the Respondent as a surprise.  In either event, we are unanimously and firmly of the opinion that we cannot today consonant with the interests of justice either permit an amendment or permit the claim to be pursued without pleaded or particularised we will not hear evidence relevant to the victimisation unless the same is said to be relevant to matters from which we should draw inferences.”

	Having dealt with those matters which they felt they could not further pursue they then followed up with detailed findings of fact.  At various stages in those findings of fact the evidence on the Respondent Employer’s side is preferred to that given on behalf of Mr Dan Iyan; that can be seen at para 6(xv), (xxi), (xxii).  There are passages there indicating a preference for the evidence of the Employer rather than that of Mr Dan Iyan.

	Then in para 7, the Employment Tribunal dealt with 5 different identifiable admissible and argued complaints and they dealt with each separately.  We do not think it is necessary to set out in full what the conclusion was on each subject but, under the heading “Tight and uncomfortable trousers” the Tribunal considered that the Applicant was entirely to blame for the series of events which caused him to spend one working day in tight trousers.  Had he followed the instructions that he should try them on to ensure they fitted whilst at the training site, the Respondent would have been able punctually to remedy matters.

	Under the heading “Treatment of the Applicant by Mr Schuter” they held: 

“On the basis of the findings of fact as set out above the Tribunal does not consider that the Applicant has established that he was treated less favourably by Mr Schuter than a white or non-African/Caribbean was or would have been.  In consequence, there is no place for any inference of race discrimination”.

	Under the heading “Telephone conversation with Mr Tidd” they held:

“Once again, on the basis of the findings of fact as set out above the Tribunal determines that it is not satisfied that Mr Tidd treated or spoke to the Applicant in a manner which was less favourable than he used or would have used to a white or non-African/Caribbean person.  It follows that there could be no finding of race discrimination.”

	Under the heading “Telephone conversation with Uniform Department” they held:

“It does not appear to us at all obvious that the chuckle was in any way connected with the Applicant’s name.  It may have been or it may not have been.  We are simply not satisfied that it was and we recognise that the burden of proof in this respect is on the Applicant.  Even if the chuckle was associated with the Applicant’s name, we do not feel able to conclude that this was in any way less favourable treatment of the Applicant than the way in which an Occidental man who had complained about the tight fit of his trousers would have been treated.  We make no finding of race discrimination here.”

	Finally as for quotations, under “7.5  Outstanding matters” they said:

“We do not consider that this is a matter which in any way is or could be said to be related to race discrimination.”

	This was a complaint that Mr Bonham had made an investigation into the matter but had not indicated the result of his investigation to Mr Dan Iyan.  It was simply, said the Employment Tribunal, a management misjudgment and it considered it was a genuine one which Mr Bonham would have made in respect of any other complaint that he was investigating.  These quotations will have given something of the flavour of the decision of the Employment Tribunal.

	On 5th November, Mr Dan Iyan put in a Notice of Appeal but as he has later put in written submissions and a written skeleton argument, it is more convenient to look at the written submissions and the written skeleton rather than the Notice of Appeal, which to that extent, has been overtaken by events.  

	We must remind ourselves that we are concerned only with points of law.  The Employment Tribunal is entrusted with the task of finding the facts.  Of course, if the Employment Tribunal comes to a conclusion of fact as to which there was no support whatsoever in the evidence or within the permitted range of inference, then the Employment Tribunal’s error would become one of law but one has to recognise that it is a very difficult case to make out on an Appellant’s behalf because it does not suffice merely to show that the Employment Tribunal need not have concluded as it did or that this Employment Appeal Tribunal would not have concluded on the facts as the Employment Tribunal had done.  What needs to be shown is that no Employment Tribunal properly instructing itself could have concluded the facts as the particular Employment Tribunal did.  

	With that in mind, we need to look at Mr Dan Iyan’s submissions.  We find in them no point of law.  True it is that the names of various authorities are peppered over the text but that is not in itself, the raising of a point of law.  Time and again, the submissions amount to no more than allegations of mis-findings of fact.  Thus, for example, at 2.A.3 the written submissions say:

“The real  issue is that Mr Schuter had contradicted himself on how he described the colour of the trousers to Wellingborough Control on March 4, 1998 and the contradiction was admitted by Mr Bonham.  Why had Mr Schuter contradicted himself?  Mr Schuter’s contradiction was a lie to cover-up an initial lie.  The question is: why did he lie in the first place?  Mr Schuter lied to prejudice the minds of persons at Wellingborough Control against myself.”

	But then the Employment Tribunal had carefully dealt with that very point and what they said in their para (xv) on page 13 was that: 
“The Applicant understood from Head Office that Graham Schuter told them that the Applicant was wearing white trousers.  The Applicant challenged Mr Schuter about this in the tape recorded conversation and understood that Mr Schuter agreed that he had reported that the trousers were white.  This is a matter which is in dispute because Mr Schuter later said, in another recorded conversation, that he had said that the trousers were beige.  We have listened to the tape of the first conversation between the Applicant and Mr Schuter and we cannot hear that Mr Schuter agrees that he said that the trousers were white.  We listened to it three time in an attempt to hear and the words are simply not there.  At least two of the Tribunal thought that it might be “light” rather than “white” and the third member of the Tribunal could make nothing of it at all.  We are not satisfied that Mr Schuter ever reported that the Applicant was wearing white trousers.”  

	So there, quite simply, is the point raised by Mr Dan Iyan which transpires to be a point of fact fully dealt with by the Employment Tribunal and that of course, provides no error of law.

	Another example is in para 2.B of the written submissions.  What Mr Dan Iyan says is:

“I have presented oral evidence of Mr Bob Tidd’s hostility towards me.  As testified I could not produce tape recorded evidence of my conversation because my telephone rang while I was entering my flat and I had to pick it up immediately and had neither a forewarning of who was calling nor prepared to tape record any conversation.  Nevertheless my oral testimony was not undermined by Mr Bonham’s cross-examination.  To a reasonable mind, Mr Tidd’s hostility defies reason.” 

	But, again, that was dealt with carefully by the Employment Tribunal, what they said was, as quoted earlier in this Judgment:

“Once again, on the findings of fact as set out above, the Tribunal determines that it is not satisfied that Mr Tidd treated or spoke to the Applicant in a manner which was less favourable ......”.

and so on.

	Again, all that the written submissions do is raise a point of fact which is not our province and which, in any event, was held by the Employment Tribunal in a sense contrary to Mr Dan Iyan.  

	In para 2.C of his written submissions, he deals with the derision that he alleged arose during his call to the Respondent’s Uniform Section.  He goes on to say: 

“The tape recording spoke for itself as a chuckle followed right immediately the mention of my surname”

	But, in the passage we have already cited, the Employment Tribunal dealt with this allegation of fact and they said:

“Even if the chuckle was associated with the Applicant’s name, we do not feel able to conclude that this was any less favourable treatment of the Applicant than the way in which an Occidental man who had complained about the tight fit of his trousers would have been treated.”

	In 2.D Mr Dan Iyan says that he testified that Mr Schuter was a recognised racist amongst Africans who had worked with him but that they were afraid to complain for fear of losing their jobs.  This was dealt with by the Employment Tribunal in the passage we have already cited, saying the Tribunal does not consider that the Applicant had established that he was treated less favourably by Mr Schuter than a white or non-African/Caribbean person was or would have been.  Again, therefore, all one has is what transpires on examination to be a mere complaint of fact.

	We have mentioned earlier the investigation by Mr Bonham and as to that, in his written submissions, Mr Dan Iyan says:

“I do not believe that any investigation was conducted because, if it were, the Respondent would have not written to me the letter of July 21st 1998, which Mr Bonham referred to at the Hearing.”

	But that point also was dealt with by the Employment Tribunal.  They held, in their (xxvi):

“Mr Bonham undertook to investigate the Applicant’s complaints and to report back to the Applicant if anything came out of his investigations.  He also undertook to arrange for the Applicant to work at the new site”.

	Thereafter, he did investigate and the Tribunal then described what he did.  It cannot be said that the conclusions to which the Employment Tribunal arrived were conclusions at which no Employment Tribunal properly instructing himself could have arrived.  

	We have also considered not only the submissions to which we have been referring but the later skeleton argument, much more recently received, which, again, adds nothing by way of identification of any point of law that has any arguable prospect of success.  We have not been able to detect, in all Mr Dan Iyan’s writings, any error of law in the Employment Tribunal’s reasoning.  We go back to the position with which we started, namely that the Employment Tribunal seems to have dealt with this matter very fully, conscientiously and logically and, finding no arguable error of law, we must dismiss this Appeal.