United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 206_95_0610

Appeal No. EAT/206/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 1995

Before

THE HONOURABLE MR JUSTICE MAURICE KAY

MR J A SCOULLER

MR A D TUFFIN CBE

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MR A H ALOUI          APPELLANT

KENSINGTON & CHELSEA COLLEGE & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR V J JESUTHASAN

(W.Rep)


 


MR JUSTICE MAURICE KAY: This Appellant, Mr Aloui, made a complaint to the Industrial Tribunal of racial discrimination. The Respondents to his complaint were the Kensington & Chelsea College, Elaine Green and Michael Barber.

The background to the case is that Mr Aloui is a graduate in mathematics from an Algerian University. His application and the findings of the Tribunal refer to him as an Arab. The college, Kensington and Chelsea College, is a college which works in the Adult or Further Education field and the decision of the Tribunal relates that in 1990, it had 50 full time lecturers, 400 part-time lecturers and some substitute lecturers.

The Appellant worked at the college as a substitute lecturer on various occasions between January 1992 and June 1993. His complaint was that he was then dropped from the list of substitute lecturers and that that was the result of racial discrimination. When his case was considered by the Industrial Tribunal on 30 January this year, the unanimous decision of the Tribunal was that the complaint of racial discrimination failed and it was dismissed.

It is against that decision that Mr Aloui now appeals by a Notice of Appeal dated 24 February 1995. That document contains a number of assertions. A significant number of them are assertions that evidence given by one person or another called by the Respondents at the Tribunal, which evidence was accepted by the Tribunal, was in fact untrue.

A second assertion is that the Tribunal itself acted partially and in a one-sided manner. At the end of the Notice of Appeal, there are set out (as is accepted on behalf of Mr Aloui) the two real grounds that he sought to put forward. Firstly, that he had been directly discriminated against by being moved from the substitute lecturers' list without being so informed and secondly, that the college had required him to take a further course before being considered for further employment; that it was suggested, was an act of indirect discrimination.

So far as those assertions are concerned, it is quite clear, having listened to the submissions made on behalf of Mr Aloui, that he feels aggrieved that the Tribunal accepted the evidence of others in preference to his own evidence. We have been anxious to explain to him and to Mr Jesuthasan, who represents him, that that in itself would not begin to found an appeal to this Tribunal, to which appeals only lie on points of law. We shall return in a moment to those points of law.

Before we do so, it is as well if we say something about the assertion that the Tribunal was partial and one-sided. There is no evidence or material before us to sustain that assertion. It is well established that if such an assertion is made, it has to be particularised in detail and not just put forward in general terms, and it also has to be supported by affidavit evidence and material from the Tribunal. No such material is before us and to the extent that this appeal is based on an assertion of partiality and one-sidedness, it has no prospect of success.

Turning then to the question of whether the other grounds raise any point of law, let alone any point of law with any prospect of success, we have the following observations to make.

The assertion that direct discrimination took place when Mr Aloui was removed from the list of substitute lecturers, was dealt with extensively in the decision of the Industrial Tribunal, and particularly in paragraph 20. It is obvious from that paragraph that the Industrial Tribunal had some sympathy with Mr Aloui, so far as communication was concerned. They concluded:

"20 .... the arrangements were sloppy. We are certain that the Respondent's view of the employment relationship was in law the correct one but we can understand that the Applicant felt that he was not treated very fairly in that he was not told that he was not going to be used as a substitute teacher even when that decision had been made. ...."

That is some evidence of sloppiness and unfairness. The question though, as the Tribunal was quick then to point out, is whether any such unfairness was in any way racial based, and applying the correct test, having previously stated the law at length and with accuracy, the Tribunal took the view that it was not racially based.

The Tribunal concluded that Mr Aloui was not treated differently in any way by Miss Green or Miss Barber, both of whom the Tribunal found have excellent backgrounds in ethnic awareness.

The assertion that there was indirect discrimination when Mr Aloui was told that he would only be considered for the substitute lectureship list in future, if he took a further course, was considered by the Tribunal (paragraph 21 of its decision). It is there treated by the Tribunal with some care.

The background to the matter is that Mr Aloui had his mathematics degree from Algeria and had obtained a City and Guilds qualification in initial teaching skills in this country. In the course of his work as a substitute lecturer, the Tribunal found as a fact, that he had been the subject of a number of complaints. Again, on behalf of Mr Aloui, it is submitted that that finding does not accord with reality, but we have considered the decision and its terms. It is clear that the matter was considered with some care by the Tribunal and it is again clear that on that matter, or aspects of it, the Tribunal preferred the evidence of the Respondents' witnesses to that of Mr Aloui.

The course that it was suggested he should go on is an ACSET Course. He did not think that appropriate and preferred to embark on the Post Graduate Certificate in Education. Indeed, he has now done that and is, as we understand it, half-way through his course.

The question the Tribunal had to consider was, whether the requirements that he should take the ACSET Course was an act of indirect discrimination. Not everybody was asked to go on an ACSET Course. The Tribunal investigated this matter and its findings in paragraph 21 are in these terms:

"21 .... This was not a universal condition. It was applied in respect of this Applicant therefore does not fulfil the terms of Section 1(1)(b) of the Race Relations Act 1976. It was not imposed for a racially motivated reason. It was a sensible suggestion which was proposed by the College. We know that it was proposed to Kevin Hamilton. We know also that it was proposed in the summer of 1992 to Malcolm Widdowson who was dropped from being a part-time maths lecturer until he had taken his ACSET course. When he passed his course he was allowed back to teaching. Malcolm Widdowson was white British subject [as indeed was Mr Hamilton]. ... We are wholly satisfied that the Applicant would have been able to pass this ACSET course easily and in fact he has demonstrated it by going significantly further in taking a full year of the PGCE course and continuing on to the second year."

At this stage the Industrial Tribunal also observed that one of the recently utilised substitutes at the college, in the department, was another man with an ACSET qualification who was of Iranian origin.

As we have indicated, it is our view that the Industrial Tribunal in this case investigated the matter with considerable thoroughness and care. It was for them to state and apply the law and they did so without any semblance of an error. It was for them to find the facts upon the evidence before them and they did that, again as a result of careful investigation.

This is not a case where it could possibly be said in this Tribunal that the findings of fact on the part of the Tribunal were plainly and obviously wrong. There is no semblance of evidence of perversity or irrational findings. There is, in our judgment, no point of law arising out of those findings of fact and, in all the circumstances, this appeal must be dismissed.