Appeal No.	 EAT/161/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MR D CHADWICK
LORD DAVIES OF COITY CBE

MR D TAMINA	APPELLANT

MARKS & SPENCER PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

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

	JUDGE HAROLD WILSON:	This is the preliminary hearing of the proposed appeal by the original applicant in the proceedings against the respondent Company. For the sake of clarity I shall refer to the parties as applicant and respondent.

1.	The applicant brought proceedings against the respondent Company alleging:

“(1) Racial discrimination and harassment (2) Breach of contract: (a) Unfair determination for exercise of statutory rights. (b) Failure to provide a written statement of reasons for termination or payment in lieu of notice. (3) Right to take time off for holidays as other employees or payment in lieu of holidays.”

2.	The matter came before the Employment Tribunal sitting at Leeds on Monday, 20th July 1998. The unanimous decision of the tribunal was that all the applicant’s claims should fail except that relating to unlawful deduction of wages, as to which the Employment Tribunal ordered the respondent to pay the applicant the sum £8.36 as compensation for unlawful deduction of wages.

3.	The unanimous decision of the tribunal was supported by extended reasons, which extended to eight pages of A4 typescript. In paragraph 5 it is stated that the tribunal found the evidence of the applicant unreliable because it was littered with inconsistencies and illogicalities. Although the tribunal had attempted to see if there was a benign explanation for them, they had been unable to find one. Therefore, the tribunal found unanimously that it was unable to rely on the applicant’s evidence.

4.	The facts found were that the applicant had been employed as a temporary seasonal member of the respondent Company’s staff. On failing to become a permanent member he decided to resign. He had stated that he had got the employment in the first place and having done so decided to resign from the National Health Service. However, evidence showed that that resignation had in fact happened 17 months before. There was a document allegedly sent by the respondents’ personnel department which the tribunal found not to have been a Marks & Spencer PLC document. 

5.	Having found that the facts on the evidence which they were able to accept, the unanimous decision of the tribunal in paragraph 8 was:

“… so far a the claim relating to direct discrimination under the Race Relations Act 1976 was concerned, the Tribunal was influenced greatly by its conclusion as to the applicant’s credibility as a witness, and also its conclusions relating to the reliability of the witnesses who gave evidence under witness order and on behalf of the respondent. …”

6.	In paragraph 9 the tribunal said this:

“The Tribunal unanimously accepted the evidence of the respondent’s witnesses that the applicant had been treated like all other temporary employees in relation to his seasonal assessment but his marks had not been high enough to justify appointment as a permanent employee, even if a vacancy had occurred. … The Tribunal accepted that Michelle Sadler and Nicola Hairyes were honest and genuine in scoring the applicant at the assessment but that his marks never at any time put him in a position where he could properly be considered for a permanent post.”

7.	The tribunal went on in paragraph 10 to say that they took into account the respondent’s equal opportunities policy. Thereafter the tribunal went on to deal with other matters of complaint.

8.	The applicant has submitted lengthy documents, some in manuscript and some in typescript, all of which we have considered. We have done this in the light of a document received on 20th July, dated 19th, in the applicant’s handwriting, inviting the Employment Appeal Tribunal to consider the appeal based on paper evidence. Therefore, we have had regard to all the documents he has submitted.

9.	We can find no matters which constitute matters of law or areas within which this tribunal’s jurisdiction to interfere can be said to exist. There are no errors of law that we can discern and, were this matter to proceed to a full hearing, it has no prospect of success. Accordingly it must be dismissed at this stage and we dismiss it.