United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 82_93_2004

Appeal No. EAT/82/93, EAT/83/93, EAT/155/93, EAT/210/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 April 1993

Before

HIS HONOUR JUDGE J PEPPITT QC

MRS T MARSLAND

MRS M SUNDERLAND JP

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MR D C D'SOUZA          APPELLANT

LONDON BOROUGH OF LAMBETH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE J PEPPITT QC: Mr D'Souza we have come to the conclusion that of your five appeals, the fifth, that being numbered EAT/266/92 should proceed to a full hearing. We think there are matters connected with that appeal which you are entitled to ventilate at a full hearing but we think that the first four of your appeals for reasons which I shall give shortly, should be dismissed.

The first, that numbered EAT/155/93, was from a decision of the South London Industrial Tribunal on 9th and 10th December 1992. That hearing resulted in Mr D'Souza succeeding in his complaint under the Race Relations Act with the result that he was awarded damages including aggravated damages of £3,000. Three grounds of appeal are raised. The first that the Chairman refused Mr D'Souza's written request for wide-ranging discovery in relation to that and other complaints which were to come before this Tribunal. The Chairman refused the application on the ground that it was too wide ranging. That refusal was within the ambit of the Tribunal's discretion. It was an exercise of that discretion with which we do not interfere because matters of discovery are very much matters for the Tribunal entertaining the application.

The second ground which is raised is that there was no reference in the written decision to a finding of direct racial discrimination which we were told the Chairman orally announced that the Tribunal had made. We think that this ground stems simply from a misunderstanding on Mr D'Souza's part; for in the penultimate paragraph of the Decision there appear the words:

"We are reinforced in that view by the Applicant's evidence concerning events both before and after this incident, which indicate that in other respects the Respondent was guilty of direct racial discrimination and/or victimisation."

There, in the Decision itself, was a clear finding of a fact which Mr D'Souza contended the Tribunal had omitted to make.

The third ground of appeal somewhat surprisingly is that the compensation which the Tribunal awarded, that is £3,000, was inadequate in the circumstances. Mr D'Souza makes two points in relation to compensation. Firstly he says it was too low and secondly he says that he was not given adequate opportunity to address the Tribunal on the subject of compensation.

As to the suggestion that the compensation was too low, this is a matter entirely within the purview of the Tribunal and there is nothing about this award which we consider would entitle us to interfere.

As to the suggestion that Mr D'Souza was not allowed to address the Tribunal on the subject of compensation, the position as Mr D'Souza explained it to us, was this. He had a number of cases before this Tribunal and when in the first of the cases he sought to address the Tribunal on compensation, he was told that the Tribunal would permit him to address them on all the cases after they had been concluded. At the conclusion of the four cases Mr D'Souza asked to make representations on compensation in each of the cases, was given the opportunity to do so by the Chairman. But in the absence of all the documentation that he proposed to rely on, was able to address the Chairman only in general terms. He was not however stopped, and he no doubt said what he was able to say on the occasion when the matter of compensation in the four cases was raised. We do not think that that is a matter which affects the Tribunal's decision, particularly having regard to the fact that he was awarded £3,000 for the matters of which he complained.

Accordingly in relation to the first of the four cases we think that the appeal should be dismissed.

The second case numbered EAT/83/93 was heard on 10 November 1992 immediately following the first. By that complaint Mr D'Souza challenged the Respondents' failure to go through the proper procedure for the appointment of their head of computer services. "Instead" said Mr D'Souza, "they brought someone in from outside". The complaint resulted in a finding in Mr D'Souza's favour and an award of £500 by way of compensation. Mr D'Souza appeals against that finding on three grounds. First of all he says that there was in the Decision, no express finding of victimisation being a finding which the Chairman orally indicated that the Tribunal had made. Secondly, he raises the same point about the Chairman's refusal to afford him full discovery and thirdly he makes the same points about compensation.

We have already dealt with the topics of discovery and compensation which raise the same issues as those raised in the first appeal. So far as the suggestion that there was no reference in the Decision to a finding of victimisation, again we think that Mr D'Souza has simply misunderstood precisely what the Tribunal said because on the third page of its decision, in the penultimate paragraph, there appear the words:

"He [that is Mr D'Souza] is convinced that the failure to shortlist him in the instant case was racial discrimination and/or victimisation. Our finding on the balance of probabilities is that it amounted to victimisation within the meaning of the Race Relations Act 1976, section 2(1)(a) and (d) respectively."

Accordingly we think that there is nothing in the second appeal which we must therefore dismiss.

The third appeal is that numbered EAT/82/93. That appeal was from a decision of the same Industrial Tribunal holding that the Respondents did not discriminate against Mr D'Souza by failing to appoint him as their head of computer services. In that matter Mr D'Souza raises two grounds of appeal. Firstly a failure to afford discovery with which we have already dealt. Secondly, a refusal by the Chairman to delay the start of the hearing for an hour to enable him to consider and make notes upon documents which he had received from the Respondents only the day before. We were told that the Chairman's reaction to an application for an hour's adjournment was that Mr D'Souza had had four years to prepare for the case and that he ought accordingly to be ready. Matters such as this are within the discretion of the Industrial Tribunal. We can only interfere if that discretion is one which no reasonable Tribunal acting judicially could have exercised in the way that this Tribunal did. We do not consider that this is such a case and accordingly we reject that ground of appeal too. The result is that the third of Mr D'Souza's appeals must also be dismissed.

The fourth appeal is that numbered EAT/210/93. The same Industrial Tribunal upheld a complaint by Mr D'Souza of racial discrimination in connection with the Respondents' requiring him to go on special leave with a view to his dismissal and found that this requirement constituted victimisation of Mr D'Souza within the meaning of section 2 of the Race Relations Act. The Tribunal awarded Mr D'Souza compensation of £3,000.

Three grounds of appeal are raised in relation to that decision. First of all Mr D'Souza says that he was inhibited in his conduct of the case by the fact that he was sent home at lunch time to get the documents which he needed to enable him to prosecute the complaint. The hearing was on 11 November 1992 and followed on immediately after the third of the hearings with which we have been concerned. Mr D'Souza told us that he had anticipated that it would not be necessary to have the documents until the following day. He got the documents and proceeded with the complaint. We do not think there is anything in that ground at all.

The other two matters relate to the application for discovery and to the assessment of compensation. We have dealt with both of those matters and we think that there is nothing in them. Accordingly that fourth appeal is also dismissed.

This leaves the fifth of Mr D'Souza's appeals - that numbered EAT/266/92 - which as we have already indicated should proceed to a full hearing.