United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MISS ELIZABETH GRAY (Solicitor) Legal Department British Telecommunications Plc 81 Newgate Street London EC1 7AJ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal of an interlocutory nature which is recorded in their letter dated 3 February 1998 and which was sent to the Appellant.

By that decision the Industrial Tribunal, having taken into account the submissions of the parties made in writing, refused to grant the Appellant witness orders in respect of three persons which he had been seeking.

The background to this appeal is that by an Originating Application dated 5 November 1996, Dr Abergaze, who is of African ethnic origin, complained against British Telecom Plc that he had been discriminated against on the grounds of his race by reason of their failure, following an interview, to offer him one of the three posts which were being filled within the "mobility area" of the Networks and Technology Centre at Martlesham Heath.

The Respondents deny that they discriminated against the Appellant and say this, in their IT3:

"Of the three vacancies within the "mobility area" ... the successful Applicants were of French, Greek and Bangladesh ethnic origin."

Dr Abegaze has a Ph.D degree and considers that he was well qualified for the positions on offer and asserts that the real reason why he was not offered the post was because of his ethnic origin and he wishes to serve a Witness Order on either all three of the successful candidates, whom he identifies, or alternatively, on any one of the three of them.

Dr Abegaze said in his letter, which he has amplified before me, that the reasons why he wants their evidence is firstly, to find out if, in truth, they were interviewed by BT and then offered employment. Secondly, if, indeed, they had the ethnic origin which the Respondents say they had. Thirdly, whether they had the qualifications and experience which the Respondents were asserting. Fourthly, the actual interview process might become relevant and he would wish to ask questions of the successful candidates to see if he could further his case of discrimination and finally, there may be other important evidence that he might be able to get from cross-examination.

The case in question is largely going to be concerned with the procedures and practice of British Telecom, in relation to the appointment process, and precisely what happened on this occasion and, whether it can be inferred that the reason why Dr Abegaze was not appointed was because of his ethnic origin. That is a task which is difficult for every Industrial Tribunal, but can be carried out by reference to the helpful guideline cases which will be familiar to them. They will, no doubt, bear in mind that it is no answer of itself to a complaint of discrimination on the grounds of race to assert that other people of a different racial origin have been recruited.

The Respondents have said that the essential task of the Tribunal will be to look at the selection criteria, together with the evidence of those making up the selection panel and any other relevant material. To a large extent, with an organisation of this size, it is to be expected that the documentation, which was generated in relation to this appointment, will be of crucial importance. For example, the application forms of the relevant persons, together with this curriculum vitae, any notes made by the selection panel and any scoring process which had been adopted, and any specified criteria, relating to the job or the person.

I am of the view that at this time there is no need for a witness order, as sought by Dr Abegaze. He is distrustful (and I say that without criticism of him) of British Telecom. He does not accept their statement that one of the three people who was recruited was of Bangladesh origin, nor does he accept that such a person was appointed as a result of the interview process. To some extent his concerns can be met both by the documentation which has already been provided, and by suggestions canvassed during the course of this hearing.

Miss Gray, on behalf of British Telecom, has indicated that there may be computer records which can be retrieved, which will show the dates when each of the three people, who have been identified as the successful candidates, were in fact appointed.

That will not entirely satisfy Dr Abegaze, but it should in my judgment, to some extent, help to resolve the sense of mistrust which he feels. I do not regard it, at this time, as being necessary for the fair determination of his complaint that these witnesses should attend to give evidence but if, of course, it becomes apparent during the course of the hearing that their evidence is required for one reason or another in the interests of justice, then I have no doubt that Dr Abegaze will be entitled to make a further application to the Industrial Tribunal, who will then be in a position to judge whether such an order should be made.

At the present time, it seems to me, that such an order is not necessary for the doing of justice between the parties. To a large extent the documentation, which has actually been provided and which is going to be provided, will deal with the points which Dr Abegaze has raised.

Accordingly, I dismiss the appeal.