United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR REPRESENTED


 


JUDGE HICKS: Mr Iyan, the Appellant worked in the Clapton Park Comprehensive Estate Development project under the auspices of the Respondent, Hackney Borough Council. I express it in that way because as the Tribunal found, he was self-employed, although within the extended definition of employment under section 78 of the Race Relations Act 1976. The other reason for expressing his relationship with the Hackney Borough Council rather generally was that a very live issue among those canvassed before the Tribunal was who indeed were his employers, and also who took the decision to dismiss him.

1. As to that, to summarise matters very briefly, because Mr Iyan has not attended to prosecute this appeal, the finding of the Tribunal was that Mr Iyan was engaged by the Clapton Park Comprehensive Estate Development Committee, which was a body independent of Hackney Borough Council in important respects, and which was a Respondent to the Application in the sense that representative members of the Committee were joined. Secondly the Tribunal found as a fact that the dismissal was by that Committee and not either by Hackney Borough Council, whether directly or by way of any agency relationship, nor was it as they found by one of the individual Respondents, Ms Brownlee, who we think although serving the Committee was a staff member of the London Borough of Hackney, that being another of the routes by which Mr Iyan sought to make Hackney Borough Council liable.
2. The complaint was one of racial discrimination in Mr Iyan's dismissal and having found the facts which I have already stated as to who was the employer and who dismissed him the Tribunal went on to deal with the allegation that that dismissal amounted to racial discrimination and rejected it.
3. As I have said, Mr Iyan does not appear nor is he represented in this appeal but we must briefly consider his grounds of appeal as set out in his Notice of Appeal. The first is expressed as follows:

"Whether the requirement on Tribunals to make inferences of racial discrimination is mandatory or advisory"

That on the face of it is not a ground of appeal at all, it is simply a hypothetical and abstract question about the treatment by Tribunals of the power to make inferences. However, assuming in Mr Iyan's favour that what he really means by this ground of appeal is an allegation that the Tribunal wrongly treated the power to make inferences as only advisory whereas it was mandatory, and that they should therefore have made the inference, we find absolutely no error of law in the way in which the Tribunal deals with that point. In paragraph 11 of their reasons they set out succinctly but in our view accurately the law on the subject and in particular on the subject of drawing inferences from the facts and say:

"we direct ourselves that the drawing of the inference is permissive and not mandatory."

We see no error of law in that formulation of the position.

4. Grounds (ii), (iii) and (iv) all amount, as we understand them, to allegations of misconduct or bias on the part of the Tribunal and it is convenient to take them all together. They read:

(ii) Whether where such an inference as in (i) above is the only logical conclusion to a proceeding, the Tribunal has power to distort (in fact, deliberately misrepresent to the point of lying) the oral, documentary, and taped evidence produced in examination, and cross-examination in order to make such an inference redundant

(iii) Whether the Tribunal has power to create extraneous considerations in coming partly to its decision, in particular where these considerations are suspiciously informed by racial or cultural prejudice

(iv) Whether the Tribunal has power to allow the Respondents to cross-examine the applicant exhaustively on a point but deny same opportunity to the applicant by conspicuously signalling its impatience, and orally (several times) directing the applicant to rather raise the point in Submission"

5. Mr Iyan swore an affidavit in support of his Notice of Appeal which runs to five closely typed pages and which in the circumstances is not necessary for me to read in full in it but, he develops these allegations of misconduct on the part of the Tribunal, and the Chairman has commented on those allegations in a signed document which appears on pages 23 to 26 of our bundle. On those pages the Chairman answers Mr Iyan's allegations point by point. Again it is not necessary, in particular Mr Iyan not having appeared, to read that in full. It is only necessary to say that we have considered those comments carefully and, having done so, we are of the clear conclusion that there is no arguable ground of appeal under any of the allegations made there. The result is that there is no arguable ground of appeal and the appeal is dismissed.