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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sheng v EDI Electronic Engineering Ltd [1996] UKEAT 953_95_1201 (12 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/953_95_1201.html
Cite as: [1996] UKEAT 953_95_1201
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At the Tribunal
HIS HONOUR JUDGE SMITH QC
MR K M HACK JP
MR S M SPRINGER MBE
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
JUDGE SMITH QC: This is an ex-parte application by Mr Sheng, the employee, for leave to proceed to a full hearing of this appeal against the decision of an Industrial Tribunal sitting at Bury St Edmunds on 22 August 1995. The Tribunal decided that the Appellant's claims under the Wages Act, for racial discrimination, and unfair dismissal, all failed and should be dismissed. We have reminded ourselves that if the Appellant can establish that there is an arguable point of law before us today, then he is entitled for the matter to proceed to a full hearing by way of appeal. Before I can come on to the submissions that have been very politely and effectively made to us by Mr Sheng who has appeared before us today in person, I will state the background to the matter quite shortly. I am relying to considerable extent on the decision of the Industrial Tribunal and the matters contained therein in the extended reasons.
The Appellant is a citizen of the Republic of China. He was employed by the Respondents EDI Electronic Engineering Ltd from 1989 until his dismissal on 19 June 1995. For the majority of the time he was employed by the Respondent he was subject to work permits issued by the relevant authorities, but as we understand the matter he has now achieved permanent residence status in the United Kingdom. He was originally employed as an electronics engineer at a salary according to the Respondents of £1,000 per month; according to the Appellant at £15,000 per annum.
Stating the background briefly, in April 1992 he was given four weeks notice on the grounds of redundancy. What happened thereafter was that he was paid only £200 per month in the months of June and July, according to the Respondents, in accordance with an agreement that had been reached as recorded in the Respondents' letter dated 28 April 1992. Whereas it was the Appellant's case before the Industrial Tribunal that despite having been made redundant, he was required to stay on, although made redundant, and was then unilaterally paid £200 for two months by dictat, so to speak, of the Respondent and then it is common ground that he was re-employed by them as a technician in August 1992 at £1,000 per month, in circumstances where it was the Appellant's case before the Tribunal that the Respondent took cynical advantage of an opportunity to discriminate against him, and treat him as cheap labour, by paying him as a technician while requiring him to carry on work as an engineer. This allegation was vigorously denied before the Tribunal by the witnesses called on behalf of the Respondent at the hearing before the Tribunal. From some time about the middle of 1992, it is common ground that the Appellant was working on the Armstrong Pumps project. It was the Respondents case before the Tribunal, disputed strongly by the Appellant, that the Appellant's work on this project was seriously incompetent and caused substantial losses to the Respondents, and that it was the failure of the Appellant, despite repeatedly being called upon to do so, to give any explanation by way of answer to the allegations of incompetence made against him, which led ultimately to his dismissal in June 1995.
It was the Appellant's case before the Tribunal that Mr Rae, Director of the Respondents responsible, had reneged upon an agreement made with him [the Appellant], under which the Appellant's case was that he had agreed to allow him to carry over his holiday entitlement in order to enable him to return to Beijing between about December 1994 and about February 1995. Then, finding that the Appellant had taken the Respondents to the Industrial Tribunal making a claim under the Wages Act, it was the Appellant's case that the Respondents then set upon a campaign to get rid of him, in response to his asserting his employment rights under the Wages Act. It was the Appellant's case before the Tribunal that this campaign involved high-handed and malicious action against him by Mr Rae and Mr Smith of the Respondents, who were actuated at one and the same time by determination to terminate his employment and also to discriminate against him on the grounds of race by withholding work from him, refusing over-time to him, treating him unfavourably in comparison with the other engineers and employees and bringing up false allegations of incompetence against him and treating him in a brutal and humiliating manner requiring him to answer trumped up allegations of incompetence.
The Respondents' account presented to the Tribunal was in every respect different. We do not propose to rehearse their account of the matter in detail here, since it is set out in full in the Tribunal's decision and, as we set out below, was accepted by the Industrial Tribunal on their findings of fact, as being the account which they preferred.
It is clear in our judgment from a reading of the Industrial Tribunal's decision that they had to decide, as we interpret the matter, between two totally conflicting accounts of what had taken place between the Appellant and the Respondent. The Industrial Tribunal on the evidence before them, accepted the Respondents' case and rejected the Appellant's case on the facts. It is clear from their decision, that they expressly found that there had been no discrimination on the grounds of race, see particularly paragraphs 4 and 22-24 of the extended reasons. Next, that the agreement relied upon by the Appellant in relation to holiday pay had not in fact been made. They preferred the evidence of Mr Rae on that, having considered the matter. (See paragraph 10 of the decision.) That there was no campaign or hidden agenda to oust the Appellant from his employment, resulting from his action in taking the Respondent to the Industrial Tribunal in respect of the holiday pay claim. (See paragraph 26 of the reasons.) Finally, the Industrial Tribunal held that in all the circumstances the Respondents had acted reasonably in dismissing the Appellant for misconduct comprising what they found to be his wholly unjustifiable failure to give an explanation to the Respondents by way of answer to the allegations of incompetence laid against him. (See particularly paragraphs 13-21 of the extended reasons.)
We have noted particularly that the Industrial Tribunal were critical of the terms in which the Respondents' letter to the Appellant was written in February 1995. Also that they considered, in our judgment with care, at paragraphs 15-18 of their decision, the procedural shortcomings of the Respondents in relation to the dismissal. We have had to consider particularly carefully whether the findings of the Industrial Tribunal relating to the procedural aspects of this dismissal were right, or whether it is arguable that they erred in law in relation to those procedural shortcomings. Having looked at that matter with care and considered everything the Appellant has to say about the matter, in our judgment we have concluded that the Industrial Tribunal correctly directed itself as to the law in this regard in paragraph 16 of its decision, and were entitled to reach the conclusion it did on the evidence in paragraphs 16-18 of its decision, to the effect that the procedural defects, although serious, had not in fact worked any unfairness whatsoever against the Appellant in relation to his dismissal.
I should make quite clear that all of us have considered very carefully everything that has been so helpfully said to us by the Appellant in his Skeleton Argument, and in all the other documents which he has presented to us. We have concluded however, on close examination of that material, that the reality is that what the Appellant is seeking to persuade us to do is, in effect, to order a re-hearing of his case before another Tribunal on the basis and on the footing that the Industrial Tribunal should have accepted his version of events, rather than that of the Respondents' witnesses. In our judgment that must be a matter for the Industrial Tribunal to decide. The mere fact that we ourselves might have reached different conclusions on the facts, or that another Tribunal, if the matter had been presented in a different way, might have arrived at a different conclusion on the facts, does not in any way, in our judgment, amount to the raising of any question of law or any perversity in the findings of fact made by this Tribunal. Accordingly, for the reasons that I have stated, we have reached the conclusion that there is no arguable point of law upon which we can allow this matter to proceed to a full hearing. Accordingly we must dismiss this application.