United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1026_95_1006

Appeal No. EAT/1026/95

EAT/1107/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th June 1996

HIS HONOUR JUDGE PETER CLARK

MR A D SCOTT

MRS T MARSLAND

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MR R PLETTELL          APPELLANT

B P CHEMICALS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN

PERSON


 


JUDGE CLARK: We have before us two appeals by Mr Plettell. The first (EAT/1026/95) is against the decision of the Bristol Industrial Tribunal sitting on 21st July 1995 dismissing his complaint of race discrimination against BP Chemicals Ltd. The complaint related to his non-selection for employment. The second (EAT/1107/95) is against the Chairman, Mr Colin Sara's decision not to order a review of the original decision.

The appellant was previously employed by Rolls Royce PLC for some 25 years. Following termination of that employment he applied for a job with the respondent in response to an advertisement placed in a local newspaper for skilled production operators.

He was fully qualified for the job by both paper qualifications and experience gained with Rolls Royce. He performed well in a written test by the respondents.

He was then interviewed by two team leaders into whose teams he might be placed if his job application were successful. On one occasion, the respondent's evidence showed to the satisfaction of the Industrial Tribunal, he failed a comparatively simple practical test.

The respondents concluded that in addition to failing that practical test, the appellant was extremely loquacious, had poor listening skills and would be difficult to train. They rejected him as being unsuitable for employment as a production operator.

The Industrial Tribunal considered that explanation for his non-selection for employment and accepted it. They declined to draw the inference on race discrimination. Accordingly his complaint was dismissed. Extended reasons for the original decision are dated 4th August 1995.

Following receipt of the original decision, the appellant applied for a review under Rule 11(1)(d) and (e) of the 1993 Industrial Tribunal Rules of Procedure ["the Rules"]. He wished to adduce further evidence. In a decision with extended reasons dated 15th September 1995 the Chairman dismissed that application under Rule 11(5) of the Rules.

This is a preliminary hearing held to determine whether these appeals or either of them raise any arguable point or points of law to go to a full hearing before the Employment Appeal Tribunal.

Mr Plettell has appeared before us to advance oral submissions in support of both appeals. Having heard him we are quite satisfied that no arguable point of law arises in either appeal.

As to the first appeal, Mr Plettell begins with the proposition that a finding of fact by an Industrial Tribunal unsupported by evidence will give rise to an error of law. With that proposition we agree, subject to the finding being material to the Industrial Tribunal's decision; where we part company with Mr Plettell is in the examples which he relies upon.

We think that he has confused the question of findings of fact being unsupported by evidence, with findings of fact with which he disagrees. In each example which he gives it is clear that there was evidence from the respondent's witnesses which, if accepted, supported the relevant findings.

As to the second appeal, we remind ourselves that our powers to interfere with a Chairman's exercise of discretion under Rule 11(5) when deciding not to order a review are limited to cases of perversity; that is where the discretion has been exercised unjudicially or where it can be said that no reasonable Chairman properly directing himself could come to the conclusion to which this Chairman came.

The application for review focused on new evidence designed to show that the appellant had been demoted by his previous employers Rolls Royce. The respondent at the original hearing had contended that he had been demoted, and thus had misled the respondent in his job application form.

However, the Chairman on the review application took a line favourable to the appellant. He held that in the original decision no mention had been made of this contention because it had not in the view of the Industrial Tribunal, influenced the respondent's decision not to offer the appellant a job.

In these circumstances it was open to the Chairman to rule that such new evidence was not material to the original decision.

The second point related to cutting techniques. The appellant says that he had experience of general cutting techniques, although not in relation to asbestos cutting, which is what apparently concerned Mr Cattle of the respondent. See paragraph 7 of the original decision.

We can see not merit in this point, and therefore we are unable to find that the Chairman's refusal to allow a review is even arguably perverse.

For these reasons both appeals are dismissed.