United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Plettell (In person)


 


MR JUSTICE HOLLAND:

1. By an IT1 dated the 8 September 1997 Mr Plettell initiated this matter. The IT1 form reveals his age at that time to be 51 and it specified the complaint in these terms.

"whether I have been discriminated against contrary to the 1976 Race Relations Act and whether I have been victimised".

2. That complaint was developed in a document attached to the IT1 in these terms.

"I am of Indian ethnic origin. I recently applied to Rolls Royce in response to their advertisement for Trainee modellers, which appeared in the Evening Post – May 1997. I have worked for Rolls Royce for 29 years, 10 years as a Jig and Tool Draughtsman, and 15 years as a Mechanical Development Engineer and 4 years for an apprenticeship and therefore I have acquired considerable experience of working on Rolls Royce engines. I have also completed a course in Computer Aided Design – AUTOCAD in 2D and 3D. I received a letter from Mr J. R. Britton, dated 11/6/97, which informed me that my application had been unsuccessful, despite the fact hat I had the relevant qualifications and experience. I believe that I was not invited for an interview, due to the fact hat I had lodged 2 applications to the Industrial Tribunal between 1992 and 1993, in which I alleged Racial Discrimination – Victimisation – Unfair Selection for Redundancy. My first application, case No 47347/92 was withdrawn. My second application, was case No 433/6/93. In this case, the tribunal found in my favour. Since 1995, I have made several job applications to Rolls Royce, in the engineering field. Only on one occasion, I was invited for an interview at which I was unsuccessful. This was in October '96. I have also applied to Rolls Royce, Derby, since I was advised that vacancies existed there, but was given a refusal to process my application. I have also applied to Rolls Royce – BMW in Germany. I was invited for an interview and then subsequently informed I would not be called for an interview.

In early June '97, I spoke to Delia Holyfield, Asst. Personnel Officer at Bristol, to inquire about engineering vacancies advertised for the IEE, Engineering Recruitment Show. I was told that there was no point in applying since I had been interviewed previously in 1996".

3. The complaint came on for hearing before an Employment Tribunal held at Bristol on the 2 and 3 November 1998. The decision as sent to the parties together with extended reasons on the 25 November was in these terms.

"The decision of the Tribunal is therefore that the applicant's claims under Sections 1 and 2 of the Act are dismissed".

4. It is material to the subsequent procedure to note that by way of the last paragraph of those extended reasons, it was directed that the matter should be further listed for a costs hearing. That further costs hearing took place on the 30 March 1999 and resulted in a decision that Mr Plettell as applicant be ordered to pay to the respondent the sum of £400 in respect of costs incurred. By way of a letter that was dated the 26 March 1999 but seemingly was in fact sent on the 26 April 1999, Mr Plettell asked for a review. That required another decision of the Employment Tribunal and that decision was made on the 7 May 1999. It reads as follows.

"The application for a review made by the applicant in his letter dated 26 March 1999 (received at the Bristol office of the Employment Tribunals on 26 April 1999) is refused on the grounds that the application was not made within the time limit prescribed by rule 11(4) of the Rules of Procedure in the Industrial Tribunals (Constitutional Rules of Procedure) Regulations 1993.

REASONS

The applicant applies for a review of a decision of the Tribunal which was sent to the parties on 25 November 1998. In accordance with Rule 11(4) the application should have been made within 14 days. It is out of time".

5. We have before us as the Employment Appeal Tribunal two appeals mounted by Mr Plettell. It is convenient first to deal with the Appeal against that latter decision, that is, the decision of the 7 May 1999. Submits Mr Plettell, that was a decision that was in error. His application for a review had been within the 14 days of the costs order. He was entitled therefore to ask for a review of that and it was wrong not to give him such a review.
6. The problem for him is this. The letter seeking the review made absolutely no reference at all to the costs order when all it did was to raise points relevant to the initial decision, that is, the decision of the 25 November 1998. Mr Plettell accepts that that application for a review of the November decision, had to be out of time if it was submitted in April 1999, but he submits that implicit in that application, was an application for the Tribunal to review that which underpinned the fact of a costs order, that is an earlier finding against him. That is the way he puts the matter.
7. We have to say that in our judgement the Employment Tribunal was plainly and overwhelmingly correct. The application that was made in the letter dated the 26 March 1999 was in the plainest of terms an application for review of the November decision. As such it was long out of time. There was the interim decision within time, that is the costs decision but any review of the cost decision could not conceivably involve a review of the underpinning liability decision. That review could only be as to two issues.
8. First, whether there should be any costs made having regard to the circumstances of the Mr Plettell and if so then, second, in what sum? That was open to review but no such review was sought. The Tribunal is plainly quite correct in its position adopted on the 7 May 1999 and thus it is that the first of these appeals has to be dismissed.
9. We then go on to the main appeal and that is as to the decision of November 1998. Submits Mr Plettell that that decision involves one or more errors of law. As we explained to him, our concern this morning is to decide whether any such can be identified. If such can be identified then we will adjourn this matter so that it may come back to this Tribunal with Rolls Royce representing. If on the other hand we cannot find any point of law then it is plainly our duty to dismiss this appeal. That arises because the jurisdiction of this Tribunal is limited to points of law. We have no jurisdiction with respect to matters of fact. To understand the point made by Mr Plettell, it is necessary to note, first, that in the extended reasons by Paragraphs 8, 9 and 10, the Tribunal reviewed the earlier litigation between Mr Plettell and Rolls Royce, that is, the litigation that he himself referred to in his IT1 and it serves to indicate that there had been certainly on one occasion an application of complaint made against Rolls Royce that was upheld. All that had a history according to the extended reasons that went from 1991 to early 1997. But turning to the immediate matter the findings of the tribunal at Paragraph 11 serve to set the scene. There the Tribunal specified.

"As to the primary cause of the applicant's present complaint to the Tribunal, namely his failure to be invited for interview for the position of Trainee Engineering Modeller, the facts can be shortly summarised. The respondents decided, during 1996, to recruit 10 Trainee Engineering Modellers to start training in September 1997. The jobs were advertised in the Bristol Evening Post on 15 May 1997 and some 137 applications were received. The advertisement provided, inter alia, that applications should "either be a recent graduate with an engineering degree or have relevant engineering experience in a high technology field". Reference was also made in the advertisement to the Trainee Programme as being "just the first step to an exciting and rewarding career". The applications were split between two Line Mangers, Mr Dibble and Mr Clack, for their consideration. Neither Manager knew the applicant nor that he had previously taken proceedings against the company in the Tribunal. Neither could remember dealing specifically with his application. In the event the applicant was not called for interview on ground that he did not measure up to the company profile as they were looking for young graduates with career prospects. The application was aged 51 and did not have recent or the relevant engineering experience required. Out of the 137 applications, 88 were from white people, the remainder being from many different ethnic origins of which six were Indian. Some 47 were, in fact, interviewed and the evidence of Mr Clack is that they came from different ethnic backgrounds. Their ages ranged from 20 to 32".

10. In the period leading up to the hearing, Rolls Royce had responded to a questionnaire submitted in accordance with section 65, Race Relation Act 1976 and the Tribunal found in Paragraph 12.

"In responding to the questionnaire the respondents admit that the application did not fail to meet the criteria but that they regarded him as "over qualified" for the job".

11. That expression 'over qualified' is a matter of further finding by the Tribunal in paragraph 16 where it finds as follows.

" There are discrepancies between some of the responses in the questionnaire compared to the evidence given at the hearing. The summary in the questionnaire of the criteria professed to have been used is somewhat incomplete when one examines the evidence of Mr Dibble and Mr Clack. The references to the applicant being "over qualified" needs to be looked at in the context of the applicant's past experience being not relevant for the job advertised. The Tribunal do not think that any differences in emphasis between the questionnaire and the evidence are of any great consequence. Reading the responses of the respondents as a whole it is clear what criteria Messrs Dibble and Clack had in mind when interviewing applicants for the job".

12. Thereafter, the Tribunal reviewed the issues and made their findings culminating in the decision to dismiss the complaint. Before us, Mr Plettell has rightly submitted that if a decision of a Tribunal can be attacked as being perverse that is, as a decision that no reasonable tribunal could have arrived at on the evidence presented to it, then a point of law arguably arises. We say that he is correct in that submission of law but we emphasise the use of the word 'perverse'. It is a high burden upon him because it has to be to the effect that a finding is so wrong, so out of step as to call in question the whole process by which the Tribunal proceeded as a fact finding body.
13. Turning from that submission, and our response to the way in which Mr Plettell has put the matter to us, it is in great substance to the effect that the Tribunal in making those findings in Paragraph 16 was perverse, and that its findings were findings that no reasonable Tribunal could have arrived at.
14. In order to develop that point he invited us to read, and we did read, the relevant passages in the statements of Mr Clack and Mr Dibble. He invites us to find that a perusal of those statements provides an arguable point as to perversity. We have to say that on a proper reading of the full content of those statements, we find no such intermation of perversity at all, quite the reverse.
15. We find there ample material upon which the Tribunal if it was so minded, having heard all the other evidence, could arrive at that which is challenged namely the findings in Paragraph 16. The point simply does not begin to get off the ground; the arguments that he is advancing to us are arguments for the Employment Tribunal below that being the Tribunal that had the fact finding exercise. We have listened carefully to what he has had to say because it is vital to ensure (he being unrepresented) that points are not overlooked which an experienced Counsel would take. But in the event we are quite unable to find anything in this at all.
16. We shall add for sake the completeness that he did raise a concern about a further finding which is in Paragraph 22 in these terms.

"We draw no inferences from the fact that BMW Rolls Royce did not progress his application in November 1996. He failed to let them know he was still interested in what was an amended job specification. Had he done so, he would have been interviewed. There is no evidence to show that in rejecting his application he had in any way been victimised""

17. Mr Plettell's point is true it was that he delayed in letting BMW Rolls Royce know that he was still interested but, putting the matter rhetorically 'so what'? Well that plainly is a submission that was open to him when the matter was before the Employment Tribunal because what he is inviting is an assessment as to fact. That is their function, it is not the function of this Tribunal. Thus it is we can discern no arguable point of law, thus it is we have to dismiss this second appeal.