United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 349_95_2510

Appeal No. EAT/349/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th October 1995

HIS HONOUR JUDGE P CLARK

MRS J M MATHIAS

MRS P M SMITH

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R S MAHTO          APPELLANT

(1) ROYAL UNITED HOSPITAL

(2) SOUTH WEST REGIONAL HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

THE APPELLANT IN PERSON


 


JUDGE CLARK: This is a preliminary hearing to assess whether or not a point of law is raised by Mr Mahto which merits his appeal going for a full hearing before this Employment Appeal Tribunal.

He seeks to appeal against a decision of the Bristol Industrial Tribunal chaired by Mr Brian Walton which sat on 6th, 7th and 8th February 1995 and after hearing three days of evidence concluded that Mr Mahto's complaint of racial discrimination against his employer the Royal United Hospital NHS Trust had not been made out and it was dismissed.

Mr Mahto has indicated to us today that he does not pursue any complaint against the second respondent, the South West Regional Health Authority.

The claim arose in this way. He sought an award for outstanding performance. His was one of nine names that were put before a committee. The committee decided that he did not reach the required level of performance.

In the Tribunal's decision at paragraph 27, the Industrial Tribunal say this:

"27 Mr Finlay, [who gave evidence on behalf of the first respondent] in our judgment summed the problem up in his evidence when he said that Mr Mahto demonstrated clinical competence but was difficult to say whether this amounted to clinical excellence. No one had any specific criticisms. He was obviously a perfectly good Associate Specialist and the only question was whether he was outstanding. The purpose of the Scheme was to reward performance beyond what would normally be expected."

And that, having listened to Mr Mahto, does seem to be the problem.

He has sought before us to re-argue all the points which it is plain to us were argued before the Industrial Tribunal. That of course is not the function of the Employment Appeal Tribunal. When asked and indeed pressed, to identify the error of law in this Industrial Tribunals decision, he said that the judgment was completely contrary to the evidence and the rules and regulations. I am afraid that that is not enough. This Industrial Tribunal, in our judgment, correctly applied the law. It appreciate that in these cases it is rare that there is direct evidence of discrimination. It had to consider whether inferences could be drawn, bearing in mind the onus lying on the applicant. For the reasons set out in the decision, it found that no such inference could be drawn, and in those circumstances found that there was no unlawful discrimination. We for ourselves can see no error of law in the approach of the Industrial Tribunal, and further, I am afraid, nothing which Mr Mahto has urged on us today has caused us to reach any different conclusion.

In those circumstances, we regret to say that we do not feel that this is a case which should go to a full hearing, and the appeal will be dismissed here and now.