United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KALU (In Person)


 


JUDGE PETER CLARK: The Appellant, Mr Kalu, commenced employment with the Respondent, London Borough of Hackney, on 1 October 1991 and in 1993 was appointed deputy superintendent of parking in the Parking Enforcement Section. He remains in that employment to this day. He is black and of African racial origin.

During the course of his employment he has presented three material Originating Applications to the Employment Tribunal as follows:

(1) First complaint, presented on 9 December 1996, alleged direct discrimination contrary to the Race Relations Act 1976 and the Sex Discrimination Act 1975 and the Health & Safety Act 1974.

(2) Second complaint, presented on 22 April 1997, alleged direct racial discrimination and victimisation contrary to the 1976 Act.

(3) Third complaint, presented on 7 March 1998, alleged direct racial discrimination, harassment and victimisation again contrary to the 1976 Act.

All three complaints were heard together by a full Employment Tribunal sitting at Stratford over nine days, in June and October 1998. By a reserved decision with Extended Reasons dated 13 November 1998 all three complaints were dismissed. Against that decision Mr Kalu now appeals. We should add that he tells us that on 1st July 1998 he presented a fourth complaint of racial discrimination and victimisation. The complaint was made between the two sets of hearings. He tells us that application was made in October 1998 on his behalf for the Tribunal to consider the fourth complaint along with the three complaints which it was already seized of. That application was rejected and we are told that the fourth complaint is to be the subject of a directions hearing to be held on an unspecified date in the future.

We say no more about that complaint, save that insofar as the Appellant complains in this appeal that the fourth complaint should have been heard with the first three complaints, we think it was a proper exercise of the Tribunal's discretion to continue to hear the original three complaints and to leave the fourth complaint for a later hearing.

The question for us at this ex parte preliminary hearing is whether the appeal raises any arguable point or points of law which ought to go to a full appeal hearing. For the purposes of this judgment it is unnecessary to repeat the factual history, carefully set out in the Employment Tribunal's reasons. We simply observe that where there was a factual issue, each issue was resolved in favour of the Respondent. The Tribunal, having seen and heard the witnesses over many days, found the Respondent's witnesses to be reliable. Not so the Appellant, whose evidence they found to be contradictory on a number of matters. It is convenient now to deal with one of the points raised in this appeal. In the course of their reasons, the Tribunal made an observation as to the Appellant's demeanour in the course of giving his evidence. A reference to him giggling and smiling and giving the appearance to the Tribunal that he was not taking the matter seriously. Mr Kalu tells us that this is a matter of the greatest importance to him and that the Tribunal have, as it were, misread the signals.

It seems to us that it must be a matter for the Tribunal below, which sees and hears the witnesses to form an impression of those witnesses. It is not for us to second guess the impression which they gained.

At the close of the Appellant's case Counsel for the Respondent made a submission of no case to answer. That submission failed, save to the limited extent that the second allegation contained in the third complaint was dismissed at that stage (see paragraph 11 of the Extended Reasons). Otherwise the Tribunal wanted to hear the Respondent's witnesses before deciding whether or not it would be right to draw an inference of discrimination in relation to the remaining complaints. We think that was an entirely properly approach. It would be rare for an Employment Tribunal to decide a discrimination case on the basis of one side's evidence only.

Having heard all the evidence the Tribunal concluded:

(1) that the Appellant did not receive less favourable treatment in relation to matters raised in the first complaint.

(2) as to the second complaint, the Tribunal accepted the Respondent's explanations for the treatment complained off as amounting to direct discrimination; as to the complaint of victimisation, although the Appellant had done a protected act, presenting the first complaint, he failed to show either less favourable treatment, or a causative link between the treatment complained of and the protected act.

(3) as to the third complaint, which related to an interview for the post of service manager parking on 16 March 1998 and his subsequent suspension, the Tribunal found on the facts that he was not less favourably treated than any comparator put forward and that no causative link was found between his interview and suspension.

In these circumstances the complaint failed.

In this appeal, Mr Kalu appears before us in person, although he has had the benefit of advice from leading Counsel under the ELAAS pro bono scheme, before presenting his submissions. He readily acknowledges the difficulty which he faces as a lay person in formulating any point of law on which this appeal can proceed. Of course, our jurisdiction is limited to correcting errors of law and we cannot retry the factual issues.

His main submission is that the Tribunal below made findings which were unsupported by evidence. However, when we examine that proposition with him, what we think he was submitting was that findings were being made, for example, that the grievance procedure which he instituted was not conducted by way of a sham, was a finding that depended on evidence given by the Respondent's witnesses and which Mr Kalu says was untrue evidence. The distinction has to be made between a submission that there was no evidence to support a finding and a submission that the evidence relied on by the Tribunal was false. The former gives rise to a point of law, the latter does not. We are quite clear that is it the latter point which the Appellant is making.

He makes a specific point about comparators by reference to paragraph 55 of the Tribunal's reasons. At first we understood him to be submitting that the Tribunal had failed to consider whether or not he received less favourable treatment compared with a hypothetical comparator. In fact, his submission was that he ought to have been compared with two named employees, Mark Wright and Mr Clunon and had those comparisons been made, the Tribunal would be bound to find that he had received less favourable treatment for the purpose of the Act. It seems to us that that argument was put on his behalf by Counsel below and the Tribunal rejected the comparison made with those named employees. That was a question of fact for them.

Looking at this appeal in the round, our conclusion is that it is an attempt to traverse factual issues which were heard and determined below over a considerable period of time. It is not our function, nor do we have jurisdiction, to reinvestigate those factual questions. In these circumstances we are quite satisfied that this appeal raises no arguable point of law and accordingly it must be dismissed.