United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 879_93_1103

Appeal No. EAT/879/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R JACKSON

MRS M E SUNDERLAND JP

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(1) MR A DOBSON

(2) FINSERV          APPELLANTS

MR E S BHOGAL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR A DOBSON

(In Person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Dobson, who practises as an Accountant in Leeds under the name A D Finserv. The appeal is against the decision of the Industrial Tribunal held at Leeds on the 28th July 1993.

For reasons notified to the parties on 5th August 1993 the Industrial Tribunal unanimously decided that Mr Dobson had committed an act of racial discrimination against Mr Bhogal and ordered him to pay the sum of £3,500.

Mr Dobson was dissatisfied with the decision and appealed to this Tribunal on the 17th September 1993. The appeal came on for hearing today. Mr Dobson has not been represented. He has put his case forward "in person" and has done so very clearly.

Under the relevant legislation the Appeal Tribunal only has jurisdiction to hear appeals from an industrial tribunal on a question of law. That includes questions arising in proceedings under the Race Relations Act 1976. The jurisdiction is conferred by Section 136 of the Employment Protection (Consolidation) Act 1978. As the Tribunal only has jurisdiction to hear appeals on questions of law, it has no jurisdiction to hear disputes of fact or appeals which seek to question the findings of fact by the tribunal, unless it can be shown that a tribunal has erred in law in a finding of fact. I state that because the immediate problem in Mr Dobson's appeal is where to find a point of law.

In order to understand the problem we need to refer to the circumstances in which the dispute arose. The complaint presented to the Tribunal on the 12th February 1993 by Mr Bhogal was of discrimination contrary to the Race Relations Act 1976. Section 1(1)(a) of the 1976 Act provides:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons"

Under Section 54 of the Act jurisdiction is given to industrial tribunals to hear:

"A complaint by any person ("the complainant") that another person ("the respondent")

(a) has committed an act of discrimination . ."

The act of discrimination complained of in this case is set out in Mr Bhogal's complaint. "I am of Asian origin and on 13 November 1993, I visited the Job Centre at Fairfax House, Leeds, at 2.30 pm. I saw a vacancy being advertised for a computer operator at Finserv in Leeds and I approached an assistant, Ms Sarah Lyons, and explained that I have the necessary experience for the position. Ms Lyons telephoned the Company and spoke to a Mr Dobson who was initially keen to interview me. However, as soon as he was informed of my name he then refused to see me in connection with the vacancy. At the end of the conversation Ms Lyons reported the incident to a senior member of staff who asked Ms Lyons to take a note of all the details of the incident.

I was then referred to a senior member of staff who explained the procedures for raising a complaint of racial discrimination to an Industrial Tribunal and then telephoned Mr Dobson at Finserv. Mr Dobson again refused to interview me for the post of computer operator and proceeded to hurl abuse about my colour to the senior assistant and was also swearing at her. The senior assistant eventually had to put the `phone down as the language was getting too much for her.

I consider that this treatment may have been unlawful because I believe I have been treated less favourably than other applicants for this post and I believe the reason for this treatment was my racial origin.

I am consulting the Commission for Racial Equality . . ."

Mr Dobson put in a Notice of Appearance dated 23rd February 1993 stating this:

"I believe the Industrial Tribunal has no right to hear this case as the Applicant Bhogal has already made an application to the Commission for Racial Equality about the self same matter. I enclose for your attention the letter received from the Commission together with copies of my reply and enclosures."

Mr Dobson said he wrote that as a result of advice he had received about the effect of the intervention of the Commission for Racial Equality. Attached to that was the correspondence, including a letter from Mr Dobson to the Commission for Racial Equality in which he set out certain comments. He stated that:

"I am an accountant of 20 years standing and there is no way that I would ever swear or shout abuse down a telephone.

I have already given your London Office [of the Commission] details about the particular vacancy and have nothing further to add."

The case came on for hearing on the 28th July 1993. Mr Bhogal was represented. Mr Dobson was not. Mr Dobson told us that when he turned up at the hearing he realised that it was going to last a long time. When oral evidence started to be given by the first of a number of witnesses it took a long time for the Chairman to write down in long-hand notes of the answers. Mr Dobson was surprised at this procedure. He was concerned that the matter would go on all day. He was busy, he had other things to attend to attend to and wished to get back to his office. He could not afford to wait all day at the hearing of the Tribunal. He was particularly concerned that he would spend a long time at the Tribunal while evidence was being given of facts which he did not dispute. He has told us a number of times that he agreed with the evidence given of the matters alleged against him. He simply did not understand why it was all going to take so long. He did not ask for an adjournment. It was never indicated to him by the Chairman of the Tribunal that he could apply for an adjournment if he was in difficulties. What happened is then described in paragraph 5 of the Tribunal's decision.

"The applicant has been represented by Mr Javaid from the Commission for Racial Equality. Mr Dobson has throughout represented both respondents and he came to the tribunal to conduct his own case. Unfortunately shortly after the applicant commenced giving evidence for reasons of his own Mr Dobson decided he did not want to participate in the proceedings any further and he simply walked out from the tribunal. We therefore have not had the benefit of listening to such explanations as Mr Dobson would have been able to have given to us."

The Tribunal made detailed findings of fact set out in the decision. The main findings of fact are set out in paragraph 2. The most important findings of fact, for the purposes of this appeal, are in paragraph 2(a). The Tribunal stated this:

"On a date in November 1992 Mr Dobson was looking to increase his workforce by recruiting a computer operator and to that end he contacted the local jobcentre and asked them to advertise that position. The advertisement that was subsequently displayed indicated that it was for the job of computer operator/book-keeper, that it would attract a wage of between £92 and £175 per week depending upon the skills and experience of the successful candidate and the advertisement also gave a fairly detailed description of the experience and qualifications that were being sought."

The Tribunal then went on to find other facts in relation to Mr Bhogal's complaint. It concluded:

"that there has been an overt act of racial discrimination pursuant to section 4 sub-section (1)(a) and (c) of the Race Relations Act."

The Tribunal dealt with the assessment of compensation, including compensation for injury to feelings. On the basis of the arguments set out in paragraphs 5 to 8 of the decision, the Tribunal concluded that the sum of £3,500 was the proper sum to award.

I now come to the grounds of Mr Dobson's appeal:

"that the Tribunal's decision that Mr Bhogal was discriminated against for a loss of a job opportunity was made without taking into account that the particular job as advertised by the Jobcentre was of their own making and did not exist. I refer to my letter of 9th September copy attached."

In the letter of the 9th September, written by Mr Dobson on Finserv notepaper to this Tribunal, he stated he wished to lodge an appeal. He states:

"My reasons for the appeal are that the decision was taken in the absence of evidence of matters on which it was based"

According to Mr Dobson, the job of computer operator, as described by the Jobcentre, never existed.

He states that the Jobcentre refused to accept any further advertisements from him. He placed an advertisement in a local paper and was able to recruit a Mrs Linda Redmond for the post advertised.

Mr Dobson emphasised in his oral submissions that that was the ground of his appeal He submitted that it was a ground of law because the Tribunal's decision was made in the absence of evidence of matters upon which it was based.

We do not agree with that submission. There is a clear finding of fact by the Tribunal that Mr Dobson had sought to recruit a computer operator and had asked the local Jobcentre, when he contacted them, to advertise that position with details that were given. Mr Dobson is now seeking to contradict that finding of fact in his assertion that the job never existed but was made up by the Jobcentre. He may feel aggrieved that we are not able to entertain the appeal on this ground. We are not able to do so because he is seeking to disturb the findings of fact. This situation has been brought about, on Mr Dobson's account by a mixture of his having received erroneous advice when he filled in the Notice of Appearance and as a result of his having taken the unfortunate course of leaving the Tribunal hearing without giving evidence. He may regret that now. There is nothing that we can do about it. There is no question of law arising from these matters. If Mr Dobson received wrong advice he may have grounds for complaint against the person who gave him the wrong advice. We express no view about that. We do not know all the circumstances in which the advice was sought or given. Mr Dobson may have a sense of grievance about the way in which the Industrial Tribunal conducted its hearing, but it is not based on any error of law on the part of the Tribunal. It was right for the Chairman to take careful notes of the oral evidence, as it was given. The fact that the proceedings would last all day was almost inevitable from the nature of the complaint, made. If Mr Dobson did not wish to remain he should have either asked for an adjournment, explaining the grounds on which it was impossible for him to remain, or he should have arranged for representation so that someone could deal with the case for those times when he was unable to be there. There was no mistake of law on the part of the Tribunal in failing to give advice to Mr Dobson that he could ask for an adjournment.

We have taken into account all the points which Mr Dobson mentioned in his arguments and in his correspondence. There is no question of law in this case. The appeal will be dismissed.