Appeal No.	 EAT/137/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 April 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR J R RIVERS
MR N D WILLIS

MR EREN ARI	APPELLANT

PDA (TRAINING) LTD	RESPONDENTS

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 (PRESIDENT)

1	We have received a number of recent communications in this matter, which is a preliminary appeal on behalf of Mr Eren Ari in the matter Eren Ari –v- PDA (Training) Ltd and it is plain from those recent communications, and they are very recent, that Mr Ari is not proposing to attend today and he has put in front of us a whole series of papers which we have had time to look at and which we have sufficiently digested.  

2	The position is that on 3 July 1998 Mr Ari lodged an IT1 claiming victimisation in vocational training under the Sex Discrimination Act.  He had been admitted to a training course and in his IT1 he says “I was, except for a youngster, for a while the only male trainee among sometimes 14 others attending the same class.”

3	It is not all together clear what his complaint in the IT1 was but he does claim that the offer of training was withdrawn and that he was told that he would be sent a letter and that £5.20 in travel expenses, normally paid on the premises, would be forwarded to him.  He took advice; it seems, from the Equal Opportunities Commission.

4	The nature of the victimisation is not at all easy to spell out of his IT1 although it does ultimately emerge more clearly.  The training company put in its IT3 and they said that Mr Ari had attended an induction talk on 3 February 1998 and had commenced a pre-vocational course with the company on 9 March 1998.  Following assessment of his suitability for undertaking an Administration level 3 NVQ, he was informed, they said, that it was felt that he had not displayed the aptitude to continue with the training programme.  On 14 April 1998 they said that when he signed on as unemployed at Greenwich job centre, he had informed the job centre that he had left the course.  A little later they say.  “At no stage was Mr Ari subject to victimisation during his time with PDA (Training) Ltd.”

5	The IT1 and the IT3 are not the clearest of documents but they led to four days of hearing and one day of consideration by the Tribunal in Chambers spread over the period from March 1999 to August 1999.  On 27 October 1999 the decision was sent to the parties; it was the decision of Miss C Taylor sitting with Mrs M Stockley and Mr T Spellman at London (South).  It was unanimous and it was that the Respondent had not unlawfully discriminated against the Appellant by way of victimisation.

6	Looking at the decision, they say in their paragraph 5 that a directions hearing had been held on 10 November 1998 at which it was confirmed that the Appellant’s specific claim did not include direct or indirect discrimination.  The Appellant had stated that the complaint made in the Originating Application was limited to victimisation under the Sex Discrimination Act.

7	Accordingly that was the only subject that was ruled upon.  They said that the Appellant “claims that the victimisation was constituted by the termination of his studies and related action against him.  Therefore the issue was not whether in fact allegations of sexual harassment took place but whether a complaint was made about sexual harassment.”

In paragraph 12 the Tribunal says this:-

“In or about February 1998 the Applicant telephoned the Respondent in order to apply for a course of training leading to an NVQ level 3.  Ms Sewell happened to answer his telephone call.  She asked him about his qualifications and what course of training he was interested in taking.  The Applicant told Ms Sewell that he had extensive experience in the field of administration and that he had become unemployed for just over 6 months.  He informed Ms Sewell that he had obtained Level 2 NVQ in administration and would now like to achieve a higher grade of NVQ, in order to improve his chances of gaining employment.

13.	It was not until the Applicant attended the offices of PDA, on 17 February 1998, to complete his application form that it came to Ms Sewell’s attention that the Applicant had been continuously unemployed for 14 years and had obtained his NVQ Level 2 qualification, eight years earlier, in 1990…………

14.	The Applicant agreed to commence the training for work, pre-vocational course (R1/167).  He signed a ‘training for work, delegate contract’ (R1/155 – 158) and was issued with a training plan (R1/159 – 162a).  It was however, the Applicant’s settled intention to progress to Level 3 NVQ…………

It appears that the Applicant mistakenly believed that the pre-vocational course would lead automatically to him progressing to an NVQ Level 3.  This was a fundamental misunderstanding on the part of the Applicant.

15.	The Tribunal considered all of the documents produced by the Applicant and found that there was no documentary evidence to support the allegation the that [sic] Applicant’s contention was that he had been accepted by the Respondent to commence a Level 3 NVQ training course.

16.	An essential part of the pre-vocational training is to provide the trainee with training which will fit them for applying for jobs and trainees are required to look for work whilst attending the pre-vocational course.

23.	Mr Birkett, Miss Sewell and the Applicant met briefly on 6 April 1998 in the corridor outside his office.  During their conversation Mr Ari insisted that he had already completed the entire assignment and that he was already working at a level commensurate with a Level 3 NVQ.  He demanded that Mr Birkett mark the assignment in order that he could prove to him that he was meeting the standard of a Level 3 NVQ trainee.”

In paragraph 25 that assignment and its marking is dealt with as follows: -

25	The Applicant completes the assignment and submitted it to Mr Birkett for assessment.  On the afternoon of 9 April 1998, Mr Birkett read it in the presence of the Applicant.  Mr Birkett considered that this was one of the most poorly completed project that he had ever seen and he did not consider Mr Ari suitable to progress to NVQ Level or that he was presently working at that level.  They discussed the report and Mr Birkett told the Applicant that he could not progress to an NVQ Level 3.  After their meeting [one needs to draw attention to that] the Applicant sent a letter dated 9 April 1998 by which he informed the Respondent that he considered himself constructively dismissed from the course and claimed that he had been discriminated against on the grounds of his sex.  However, he did not give any details of his allegations, discrimination or harassment.”

In paragraph 26 the Tribunal says 

“Since the Applicant mistakenly believed that his training course was progressing to a Level 3 NVQ, it follows that he mistakenly accepted this letter as notice that he had been dismissed from the course he had been undertaking.”

That is a reference to a letter that Mr Birkett wrote on 14 April.

In paragraph 27 the Tribunal says this:-

“The Applicant wrote to the Respondent making detailed allegations of sexual discrimination, by two letters dated 15 April, after he received Mr Birkett’s letter (R86 to 87 and R88 to 89).

The Applicant did not return to complete his pre-vocational training.”

8	The Tribunal held- it might not have been necessary for them to do so but they did- that there had been no sexual harassment of the kind which Mr Ari had complained about but, more importantly for our immediate purposes, the Tribunal held that he had not made any complaint of sexual harassment or of any other complaint under the Sex Discrimination Act before the event, which he described as a constructive dismissal, which he complained of as the form of victimisation which he suffered.  On that subject the Tribunal said this:-

“We do not accept the Applicant’s evidence that he made a complaint about sexual harassment to Mr Birkett on 6 April 1999.  In arriving at this finding we bear in mind that the Applicant did not make any attempt to express his complaint in writing until after he had met with Mr Birkett on 9 April.  We find that the Applicant has failed to prove that he carried out an act protected by section 4 Sex Discrimination Act 1975.  Therefore the unanimous decision of the Employment Tribunal is that the Respondent did not unlawfully discriminate against the Applicant by way of victimisation.”

9	There is a brief Notice of Appeal of 8 December 1998 and we have been provided with an affidavit of Mr Ari declared or affirmed on 24 January 2000 amongst, as I mentioned at the outset, the papers that we received this morning.  Mr Ari unfortunately fails to recognise that all we can deal with are points of law.  A number of his allegations are manifestly not related to law but are related to fact.  For example, he says that the Tribunal did not attach due importance to his documentary evidence and did not attach due importance when confronted with documents to witnesses’ admissions.  He says Respondent’s third and last witness about the tutor’s evidence “and its contractee SOLOTEC letter”, was preferred to those of his.  Those allegations relating to the way in which the Tribunal made findings of fact do not disclose any error of law.  Of course, it is possible for a Tribunal’s handling of the fact to lead to error of law if, e.g., there is unchallenged evidence that could only have led to a given conclusion which nonetheless the Tribunal does not make.  That could represent an error of law.  Equally, if a Tribunal comes to a conclusion of fact as to which there was no evidence given whatsoever.  Again, that would represent an error of law, but it is a very difficult task to prove an error of law, out of a basic handling of fact and, doing the best we can with the papers which Mr Ari has put in front of us we do not find it possible to find an error of law.

10	The act of which he complains by way of victimisation is an act which he describes as constructive dismissal and he describes that as having taken place at a meeting of 9 April 1998.  But that cannot have been victimisation as a response to a complaint of his of sexual harassment, as that complaint was not made until after the meeting, which he says, was the constructive dismissal of which he complained.  That is plain from the Tribunals paragraph 25, an extract from which we earlier read.  There may be other difficulties in Mr Ari’s way; it is not at all easy to see how he would have been able to claim discrimination in a form that is prohibited by the Act in any case, but, simply limiting ourselves to the way in which the Tribunal dealt with it, we cannot find that there was any error of law in the Tribunal’s rejection of the case of victimisation under the Sex Discrimination Act.

11	We have done our best with the papers that Mr Ari has submitted to us but, finding no arguable error of law, then we must dismiss his appeal even at this interlocutory stage and so we do.