United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS NEWTON (Representative) N E L C 73A Church Street Hartlepool TS24 7DN


 


JUDGE J HULL QC: In this case Mr George Coleman, a gentleman of 58, appeals against a decision of the Industrial Tribunal sitting at Middlesborough on 13 February 1998 chaired by Mr Barton with two Industrial Members.

The Appellant had complained to the Industrial Tribunal of disability discrimination. The short facts were that he obtained employment as a security officer with the Respondents, a firm called Seceurop (UK) Ltd at Billingham, on 19 May 1997 and the employment only lasted 24 hours. It was discovered, and certainly the employers can be criticised for not discovering this before they offered him employment, that his handwriting was quite illegible. That was apparently caused by his disability (we do not have any details of the disability or how it came to cause that) and so he complained that because his employment had been terminated by the employers after 24 hours, he had suffered discrimination.

The answer put in by the employers denied this discrimination but having thought about it and been advised the employers eventually admitted that they had discriminated against him. There was a hearing in front of the Tribunal on 13 February, as I say, where the admission was made of disability discrimination and the Tribunal found that Mr Coleman had suffered injury to his feelings and a loss of earnings.

With regard to the loss of earnings, they put the figure at eight weeks earnings and they gave their reasons for that rather short period during which they found he ought to be compensated. The facts were, they say in paragraph 4 of their decision:

"...that over a period of the last five years the applicant has been unemployed most of the time. His employment record over the longer period of ten years appears ..." so they had considered that. "The jobs he has had in the last five years have lasted for a matter of only a few days or at most two months interspersed by both periods of trading and periods of unemployment."

There was another material factor with regard to the period of compensation. They said in paragraph 9:

"The applicant was only able to tell the Tribunal of one job application made since he destroyed his computer records in December 1997 namely on 27 January 1998 and [he] has openly stated he had not gone to the Jobcentre because it was a waste of time."

That was a material matter for them to consider. Then in paragraph 10 another obviously material matter:

"The nature of the Security Industry as described to us by the respondent's witness and as known to us from our own knowledge is such that we accept that there is a very high turnover of staff and that the likelihood of the applicant remaining in position for long particularly bearing in mind not only this fact but also his own employment record is very small. We consider eight weeks as a fair assessment for the likelihood of his continuing in employment but for this discrimination."

That, as Mr Newton has pointed out to us, is an assessment based on imponderables. What is said by Mr Newton concerning it is that "it is so unreasonable as to be perverse." Something, in other words, which no reasonable Tribunal could arrive at.

It goes without saying that the Industrial Trbunal must have based that in part on the evidence which they heard, their impression of the Applicant's and of the Respondents' evidence and also their knowledge of employment locally and matters of that sort. They will know more about the job of the security officer certainly than some of us do. However that may be it is first and foremost a question of fact for them to make a reasonable assessment; the best assessment they can. We might have reached a different assessment; we cannot say about that. All we can say is that we do not consider that it is fairly arguable that that was a perverse assessment.

So they gave him £750 for his injured feelings and they gave him £1472.88 in respect of his loss of eight weeks earnings. They then considered an application for costs made by the employers and that was based on what is called a Calderbank letter. The employers had offered £6000 fairly shortly before the hearing and offered £6000 in a letter which was without prejudice, so far as the hearing was concerned, but would be shown to the Tribunal in the event of an application with regard to costs.

The Tribunal thought that that was a very generous offer and they thought that Mr Coleman had acted unreasonably in refusing it. Mr Newton says, "Well that is not so. He was entitled to a declaration from the Tribunal that he had been discriminated against in this unfair way and therefore it was reasonable for him to go on." Again we could say the Tribunal might very well have accepted that submission. If we had been sitting in the place of the Tribunal we might very well have accepted it, we might not have made an order for costs. We might have made, we think, a larger order for costs, we simply cannot say: we were not there and we cannot consider all that the Tribunal was able to consider. Again I emphasise we have not seen the witnesses.

We cannot say that the award of £500 costs is something which is outside all reason, outside the discretion of the Tribunal. The Tribunal must have had many matters in mind. They had to consider not merely their important duty of fairness to applicants but their equally important duty of fairness to respondents. They will have been able to form a better view than anybody else can about the right thing to do in the circumstances. It was within their jurisdiction to make such an award of costs, it may seem to an outsider hard on the Applicant that he should have to pay costs but then, on reflection, anybody considering an offer of £6000 might say he was acting unreasonably to refuse it. That is what the Tribunal did say and we think they were entitled to say that.

In the circumstances, therefore, we do not regard any of these matters which are raised as being fairly arguable points of law. They might be highly arguable as questions of fact but Parliament has said that we can consider only points of law thus narrowing our jurisdiction to a very remarkable and important extent. The appeal is in our list under our practice direction to see whether we can find any fairly arguable point law. Since none of us think that there is a fairly arguable point of law we have to say that the appeal must be dismissed at this stage and we so order.