United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CLAY (or Counsel) MS A OGUNDIMU 2 Livingstone Lodge Carlton Gate Harrow Road Maida Vale London W9 3RL
For the Respondent	MR R WHITE (of Counsel) The Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ


 


HIS HONOR JUDGE WILSON

1. We have been concerned today with the final hearing of full argument about that part of the appeal which at the preliminary hearing, another division of this Tribunal found should go forward for full argument in an amended form.
2. There were originally a number of grounds of appeal which are set out in a comprehensive document which was considered by the Tribunal at the preliminary hearing. Those grounds were dismissed at that stage except for part of ground four. Having dealt with the grounds of appeal raised in the Notice, His Honour Judge Hicks QC referred to the way in which the fourth ground was originally worded, saying that in that original form it was not arguable. The amendment to the ground was to provide that, insofar as the Tribunal gave reasons for the less favourable treatment they found proved, it erred in law in reaching its own judgment as to the Applicant's managerial potential.

Judge Hicks goes on at page 8 (F) of the judgment.

"It seems to us that the words in paragraph 18, having heard the Applicant give evidence …we can see that he has some way to go in acquiring them." makes clear that one of the reasons, although not the only reason for the Tribunal's conclusion was its own assessment of the Appellant not just as to the credibility of his testimony in the witness box, but also as to his personality and his aptitude for the managerial positions."

"That point is perhaps really two points (1) the question whether the Tribunal's assessment of that kind is properly to be taken into account at all. (2) whether even if it is the Tribunal does not betray that it is substituting its own judgment by the words "we can see he has some way to go in acquiring them" – both, it seems to us, raise arguable grounds of appeal. We do not of course reach any conclusion as to what the result of such an appeal showed be, but they are points which we consider the Appellant should be entitled to raise."

3. Those points had been raised compendiously by Mr Clay on behalf of the Appellant and set out in his grounds of appeal. They had been responded to by Mr White amplifying pithily the matter set out in his Notice of Appeal. It is a very narrow point. It seems plain to us, as it was to the other division of this Tribunal, that insofar as the Employment Tribunal made reference to its assessment of the Appellant, it was done in passing and was almost a "throw-away" assessment. Indeed, as Mr Clay himself agreed, the Tribunal could have expressed it very slightly differently and have given rise to no exception at all.
4. What concerns us is that, when regard is had to the totality of the decision and to way in which that decision is phrased, it is quite plain that the Tribunal having found discrimination, found at all points that the reason for the discrimination was not a racial reason. That finding is what is fatal to the Appellant's case. Accordingly we see no reason for disturbing the original decision and this appeal must fail.