Appeal No. EAT/0264/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 July 2001

Before
THE HONOURABLE MR JUSTICE DOUGLAS BROWN
MRS D M PALMER
MR R SANDERSON OBE

MR A THOMAS	APPELLANT

TINY OPUS COMPUTERS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N BOOTH
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR JUSTICE DOUGLAS BROWN

1.	This is an appeal by Mr A Thomas from a decision of the Employment Tribunal sitting at London Central (chaired by Mr D H Roose) with extended reasons given on 8 January 2001.  The Respondent to this appeal is Tiny Opus Computers Ltd.  The decision of the Tribunal was that the Respondent employer did not discriminate against the Appellant on racial grounds.

2.	The hearing had a history, in that the proceedings had been brought much earlier and there had been a hearing before a differently constituted Employment Tribunal, whose reasons were given in June 1999, when, in part, Mr Thomas’ complaint of unlawful racial discrimination was upheld.

3.	The matter went on appeal to the Employment Appeal Tribunal and on 15 June 2000 another constitution of this Appeal Tribunal, presided over by His Honour Judge Peter Clark, allowed the appeal, in part, and sent the matter back for a rehearing before a freshly constituted Tribunal.

4.	They did so on one of the grounds that remained at that hearing and that was, “was the Applicant a victim of race discrimination/harassment at the hands of his managers from 15 September 1998 onwards, as particularised by the Applicant.”  There had been, before the first Tribunal, an issue of fact as to whether in fact the Appellant was a victim of race discrimination because of the Respondent’s failure to promote him to the post of Senior Salesman, instead of which they had employed a white comparator, a Mr Evans, who was in fact junior to the Appellant.

5.	The first Tribunal found as a fact that Mr Evans had not been promoted to the post of Senior Salesman and there was no cross appeal on that finding.  So that first formulation of the first ground of appeal fell away.

6.	The background to this appeal can be shortly stated.  The Appellant was employed by the Respondent as a salesman at their premises in Ealing between April 1997 and December 1998.  Between May and August 1998 there were two salesmen working at the Ealing premises; the Appellant and Mr Evans.  There was no permanent manager but they were managed from time to time by a number of locum managers.  The Respondent Company at that time was undergoing a period of considerable growth but was very sparsely populated in its personnel department with only two or three people employed there.

7.	Ultimately a full time manager was appointed to the Ealing branch and he was very critical of the manner in which the business had been run and the failure of the Appellant and Mr Evans to adhere to laid down company procedures.  Both men were disappointed by this response, as they believed they were entitled to take credit for having done well in difficult circumstances.

8.	It is clear from the findings of the Tribunal, which have not been attacked before us, that between September and December serious differences arose between the Appellant and his managers.  At the end of November he presented an Originating Application complaining of unlawful racial discrimination and constructive dismissal.  It was those complaints which, in so far as they related to the conduct of the managers, were dismissed by the first Tribunal.

9.	In the autumn of 1998 the Respondent Company advertised the post of Senior Salesman position at Ealing.  Both the Appellant and Mr Evans interested themselves in this appointment.  The Appellant for approximately a fortnight, between 30 September and 12 October was away from work on sick leave and one of his complaints was that Mr Evans, who remained on the premises throughout, had an opportunity to be interviewed and assessed on a larger basis than the Appellant himself.  Mr Evans is white and the Appellant is black.

10.	The Appellant’s case was that, even though Mr Evans in the end was not appointed, Mr Evans was favourably regarded by the management and the Appellant was unfavourably treated compared to Mr Evans.

11.	There were two central witnesses for the Respondent Company; a Mr Richards who was a manager brought in as a trouble-shooter, and a Mr Baigrie who was the Area Manager.  Both of them assessed the Appellant and assessed him in not unfavourable terms.  Mr Richards in particular thought the Appellant, who had fallen well behind the company standards, had made a very considerable improvement.

12.	The question for the Tribunal, applying as they did the legal principles in relation to discrimination correctly, was whether, as apparently, the Appellant had been treated differently to Mr Evans, there was any objective grounds for one to be preferred or approved rather than the other.

13.	In the course of a 2-day hearing the Tribunal considered carefully the evidence, not only of the Appellant, but also of Mr Baigrie and Mr Richards.  They formed the wholly favourable view of both Mr Baigrie and Mr Richards and they came to the conclusion that the assessments that they had made were genuine and that they were entirely work based and there was no element of discrimination on the grounds of race.

14.	The final remarks of the Chairman in the extended reasons was that this appeared to be common ground.  Mr Baigrie had identified him as a leading salesman and was at a loss to understand why he was leaving.  At the end of the day the Tribunal came to findings of fact which, in our view, cannot be criticised, certainly to the extent of the criticism being elevated into an error of law.

15.	Mr Booth, who has represented the Appellant under the auspices of the Employment Law Appeal Advisory Service, has amplified and put into easily understandable terms, the grounds of appeal which the Appellant puts forward.

16.	Those grounds are that the Appellant was not permitted by the Chairman to refer to crucial, relevant sections of the Respondent’s witness statements; for example Ms Gravenor who gave evidence as to the equal opportunities policy.  Also questions were not permitted, both of Mr Baigrie and of Mr Richards, in relation to one aspect of the case which involved the police investigation into potential fraud not, of course, anything to do with either this Appellant or Mr Evans, but the zeal with which they were enquiring themselves into this formed or was going to form part of the evidence if the Appellant was successful in pressing the Chairman with his questioning.

17.	The other area where Mr Booth submits that the Tribunal wrongly prevented him from carrying out questioning of Mr Gravenor was in relation to the equal opportunities policy which, the Tribunal found, existed, it was ready for use, not lying dormant in a manual and they employed persons from ethnic minorities at various levels in the organisation. Mr Booth informed us that this was contrary to a finding of fact made by the first Tribunal and that was a sufficiently unusual circumstance as to permit extensive cross-examination on this issue.

18.	Those are the two matters, which Mr Booth submits make these findings so flawed that they amount to an error of law, which would compel this Appeal Tribunal to send the matter back for a rehearing.  Of course Mr Booth does not have to go as far as to say that that would definitely happen, he has to raise an arguable case for this matter to proceed to a full hearing inter parties.  We regret to say that he has failed to persuade us that that could happen.

19.	The two matters were two parts of the evidential fabric which the Tribunal had to consider.  It is clear that they had a large quantity of evidence which they had to consider and did and the reasons, which we have attempted to summarise, show the that the Tribunal had a good grasp of the evidential issues before them.

20.	The Chairman of an Employment Tribunal has a difficult task when there is a large volume of evidence and one party wishes to introduce even more evidence, either by cross-examination or by oral or written evidence.  The Chairman of a Tribunal must exercise powers of management to control the length of a hearing and to decide what evidence is relevant, whether enough evidence has been heard on any particular topic and here the Chairman has obviously exercised those management powers.  It is not obvious to us that he has done so in so unfair a way as to render his decision not to permit further cross-examination an error of law which would arguably vitiate the hearing.

21.	Similarly in relation to the equal opportunities point, it is by no means uncommon for one Tribunal to arrive at a factual conclusion and for the matter to be reheard and for another Tribunal or court to arrive at a different verdict or decision.

22.	We have anxiously considered Mr Booth’s submissions and we have of course considered all the material that has been put before us.  But at the end of the day we are not persuaded that there is here any arguable ground to proceed to a full hearing and this appeal is dismissed.