Appeal No.	 EAT/377/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 11 September 2001

Before
MR RECORDER LANGSTAFF QC
LORD  DAVIES OF COITY  CBE
MRS R A VICKERS

MR M P JABBAL	APPELLANT

CONSIGNIA PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

MR RECORDER LANGSTAFF QC:

1	This is a preliminary hearing in an appeal from the Employment Tribunal sitting at Leicester, whose reasons were delivered on 9 February 2001.

2	Mr Jabbal has filed a Notice of Appeal on 21 March 2001 against that decision.  It is signed on his behalf by Legal Assistance.  He had been represented at the Employment Tribunal by a Mr M. Johnstone from Legal Assistance.

3	We have been told that Legal Assistance were written to to provide them with notice of the time, date and place of this hearing.  The letter was returned.  Legal Assistance were no longer at the address they had given.  Accordingly, the Appellant was written to direct to tell him of the date and time of this hearing.  It appears, however, that he was not told where the hearing would take place and may well have assumed that it was at Audit House, Victoria Embankment, whereas this case is being heard and determined in Court 70 of the Royal Courts of Justice.

4	A matter of some days ago a phone call was received, purportedly from a group or body or firm called Employment Law Services, telling the Office of the Employment Appeal Tribunal that Employment Law Services were now acting on behalf of the Appellant.  They were asked to provide confirmation in writing.  This did not arrive.

5	This morning no-one has appeared to pursue the appeal.  Enquiries have been made at Audit House.  It appears no-one has arrived there in the mistaken belief that the case was due to be heard there.  We are told that a phone call has been made seeking the number of Employment Law Services.  Each of the two numbers provided by directory enquiries is, apparently, dead.  It follows that Employment Law Services cannot be contacted.  

6	Mr Jabbal’s home number was not answered by anyone capable of understanding the enquiry made, it was a young child apparently who answered.  We are told that a phone call was then made to Mr Jabbal’s work.  The information given by the person to whom the Registrar spoke indicated that Mr Jabbal had been at work until some 30 minutes before the phone call, which was made at about half past 10 this morning, but had then left site.  Since he works in Staffordshire it is improbable to think that he had intended to be here in this Court, or for that matter in Audit House, Victoria Embankment, to pursue his appeal this morning.  Accordingly, we have determined that we should hear and determine this appeal in his absence.

The Claim 

7	Mr Jabbal claimed that he had been racially discriminated against by his employer, the Post Office.  The claim was that he had been victimised by not being short-listed for appointment as Processing Engineer at the Leicester Sorting Office.  The claim was under section 2 of the Race Relations Act 1976.  He said that he had been victimised because he had made an application in 1999.  He had been short-listed, he had been unsuccessful, and he had claimed that he had been racially discriminated against in the conduct of the interview, which he then attended.  That claim was heard in November 1999 and was dismissed on 1 December 1999.  The Post Office had, however, advertised again in November 1999 and again the Appellant applied for the advertised post.  

The Findings

8	Three persons were engaged in short-listing the applicants.  The Employment Tribunal found that they were engaged independently in that task.  They also accepted evidence that there was no identifying mark on the face of the application to show any information from which the racial origin of the Applicant might be deduced.  That did not, however, apply to one of the sifting interviewers, a Mr Smith, because he had been engaged in the earlier interview at which the Applicant was rejected.

9	The Employment Tribunal at paragraph 6(l) held, rather found, that Mr Smith rejected the Applicant because, although his application looked strong so far as his qualifications were concerned, Mr Smith knew that at his previous interview the Applicant had displayed little experience outside an environment where he was merely required to test equipment and had demonstrated a lack of interpersonal communication skills which were vital for the job.

10	The Employment Tribunal found at paragraph 6(m) that the second of those engaged in the short-listing process did not short-list the Applicant because he had little experience outside a testing environment.  The third would have placed the Applicant on the short-list.  However, because one only out of three would have done so, the Applicant was not short-listed.  On the basis of those facts the Tribunal held (at paragraph 7(c)) as follows:

“In the sense that the applicant was not selected for the shortlist whereas others who had not done a protected act were, the applicant can be regarded as having been treated less favourably.  However, any less favourable treatment arising from his not being selected was not because the applicant had done a protected act.  He was not selected because, although he had good academic qualifications and although he had had experience in a testing environment, he had not demonstrated on his application form his ability to cope with the job the Post Office wanted him to do.”

They proceeded, therefore, to dismiss the claim that the Appellant had been victimised in that he had been discriminated against on the ground of his race.

The Appeal

11	The ground upon which the appeal is brought is that the Employment Tribunal is said to have erred in law in failing to apply the ruling in the case of Nagarajan v London Regional Transport [1999] ICR 877.  It is said that the Employment Tribunal, in its findings, concerned itself with the motivation of the Respondent and the fairness or otherwise of the mechanics of the selection procedure.

12	It is suggested that thereby the Employment Tribunal considered conscious motivation and did not consider the question posed in Nagarajan which, in essence, is that the question which the Employment Tribunal is concerned with, in dealing with a claim of purported victimisation, is whether or not it can be said that the act said to constitute victimisation was caused by the complainant having done a protected act.  The relationship is one of cause and effect, not one of intention and result.

13	We have carefully considered what the Employment Tribunal have said, and how they approached their task.  We do not see in those Extended Reasons any rejection of the claim upon the basis that the Respondent did not intend to discriminate against the Appellant.  

14	We think that had the Employment Tribunal specifically addressed itself to the Nagarajan case, it would have concluded no differently.  There is, in this case, no question of any difference in the result whether one applied the test of motivation, which was applied by many Tribunals in error prior to Nagarajan, or whether one took the causative approach enjoined by that case.

15	Accordingly, we see no error of law in the Employment Tribunal’s decision, nor do we see any reasonable argument that there might have been such an error.

16	Accordingly, this appeal fails.