Appeal No. EAT/1257/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 May 2000

Before
HIS HONOUR JUDGE H WILSON
MR P DAWSON OBE
MRS GALLICO

MR D L NOE	APPELLANT

GRAMPIAN COUNTRY FOODS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR NOE
Appellant in Person	

HIS HONOR JUDGE WILSON

1	This has been the preliminary hearing of the proposed appeal by the Applicant in the original proceedings against the decision of the Employment Tribunal that his complaint of racial discrimination be dismissed and that his complaint of unfair dismissal should remain stayed.  He also claimed before the Employment Tribunal successfully for unpaid wages and was awarded compensation of £77.00 in that regard.

2	At the outset of the hearing, we enquired from the Appellant (who appeared on his own behalf) whether he understood that his claim that he was unfairly dismissed remained to be decided in due course once it was unstayed.  The Appellant had not realised that that was the case and we therefore have been confined today to his appeal against the complaint of racial discrimination.

3	He has submitted manuscript grounds of appeal and manuscript submissions to which we have had regard.  In particular his latest submission, which he handed in during the course of the hearing, was read aloud because it had not been copied.  

4	We have considered all of those submissions and the bulk of them do not assist us in the limited role which we have.  We are empowered to consider and examine matters of law.  Where matters of fact are concerned we are not allowed to interfere because matters of fact are entirely for the Tribunal which sees and hears the witnesses.  In that regard, and so far as the allegations concerning racial discrimination are concerned, the Tribunal’s findings are set out in paragraph 8 of their extended reasons as follows:-

“While there is no doubt that the respondent’s chicken factory was a tough place to work, where strong language was the common currency, and while we have no doubt that the applicant suffered some harassment and victimisation from the McRitchie family, we are satisfied beyond any doubt at all that this was not of a racial kind or based on the applicant’s nationality.  A much more likely explanation for the harassment meted out to him by the McRitchie family is the fact that at around Christmastime he had made a complaint against Barry McRitchie in relation to the incident of placing the letter on a chicken.  The fact that the respondent did not deal with this matter satisfactorily did not reflect well on them, but we are satisfied beyond doubt that any difficulties the applicant sustained were not borne of his racial origins.  In coming to that conclusion we took account of but discounted the evidence of Miss Elpick and Mr Pacheco and also the written statements of Messrs McCartney, Power and Andrew.  Miss Elpick was not an independent witness, having being the applicant’s girlfriend and still being a friend of his; moreover, she went a great deal further in her evidence to us than in the very short statement presented with the applicant’s documents.  She clearly felt sorry for the applicant and was determined to help him; we fear she may have exaggerated her account of events in the factory.  She considered that there had been racial harassment in the respondent’s factory during her employment there, particularly of Portuguese and others, who are unable to speak English.  This does not of course, apply to the applicant.  Mr Pacheco told us that he heard the expression “Yank bastards” being used toward the applicant and himself but he agreed in cross-examination that he would not find the word “Yank” offensive.  He told us that he had never heard any other racial abuse, for example of Indians or Portuguese.  In coming to our decision we considered the statements made by Mr Will Power and Mr McCartney.”

That is the paragraph in the decision dealing primarily with the complaint of racial discrimination and it has to be read in the context of what is set out in paragraph 3 of the extended reasons from which we also quote:-

“The extent to which we accepted the evidence given by the witnesses on behalf of the parties is apparent from our findings below.  Something which struck us forcefully however, is the manner in which the Applicant gave his evidence and the insight it gave us into his character.  We found the Applicant to be an articulate and forceful character who expressed himself in forthright terms.  On a number of occasions he interrupted Counsel and even members of the Tribunal.  We have no hesitation in finding that in any exchange or meeting with his employers he would express his views forcefully and clearly.  This is relevant to the extent that if at any time during his employment the Applicant had considered he was being discriminated against on the grounds of his race he would have said so in no uncertain terms.  He would certainly not have been inhibited by shyness or any reluctance to assert what he conceived to be his rights.”

5	While we are bound by those findings of fact in paragraph 8 so far as racial discrimination is concerned, when the Applicant’s case for unfair dismissal is heard he may find that those matters are relevant in assisting his case over that head of complaint.  That is entirely another matter for another day and so far as we are concerned we can see no reasonable prospect of success for this to go to full argument and the appeal so far as racial discrimination must be dismissed.