United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS E LAING (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE NELSON

1. This is an ex parte preliminary hearing in which Dr Al-Azzawi seeks to have his appeal go to a full hearing of the Employment Appeal Tribunal. He brought three claims which were heard by the Employment Tribunal at London (North) over several days in November 1999. Those involved complaints that he had been racially discriminated against, alternatively or additionally victimised or unfairly dismissed.
2. In relation to first of those complaints it was found that he had been racially discriminated against and £8,000 in compensation was awarded together with interest. In the second of those complaints his allegation that in respect of redundancy he had been racially discriminated against, victimised and unfairly dismissed, was dismissed and in the third case the allegation that he was racially discriminated or victimised, again was dismissed.
3. The matters in relation to the second and third applications in respect of which he now seeks a full hearing, arose out of a redundancy situation which it is conceded had in fact arisen. The allegation was that the exercise which his employers involved themselves in was unfair and discriminatory and that there was a conspiracy to get rid of him because he had previously brought a complaint of racial discrimination before the Tribunal because of his Iraq Arabic ethnic origin.
4. The matters put before this Tribunal are substantial and indeed voluminous. What Dr Al-Azzawi has sought to do is complain that the Employment Tribunal has erred in respect of the following different paragraphs of its extended reasons which were given on 30 November 1999. Paragraphs 24, 25, 27, 28, 29, 30, 31, 32, 33 and 35. Many of these allegations are complaints about findings of fact which the Tribunal made. They do not reveal any error of law. There is also an allegation in general terms of bias, which looking at the papers before us is wholly unsustainable. There are however, specific matters arising out of those very general and lengthily expressed matters which we have given careful attention to.
5. Today Dr Al-Azzawi has had the assistance of Ms Laing of Counsel to present matters on his behalf. In addition he has also raised three further matters himself and it is upon those that the hearing has been asked to concentrate its attention today.
6. Firstly, it is said by draft amended grounds of appeal and the submissions made to us by Ms Laing, that Dr Al-Azzawi's claim that he had better qualifications, more experience and more expertise than the employees who were eventually appointed to the three posts was simply not properly considered by the Employment Tribunal. In paragraph 28 of its decision the Tribunal said

"Dr Al-Azzawi maintained that he was more highly qualified and had greater experience and expertise than the colleagues who were so appointed. However, this is not for us to say and it was management's responsibility to put in place the most suitable candidate."

7. Ms Laing submits that that is a failure on behalf of the Tribunal because they failed to make the finding of fact as to whether the contention put forward by Dr Al-Azzawi was correct in relation to his qualifications, experience and expertise. Thus, one of the primary factual bases have not been properly considered in relation to his complaint. If they had found that he was right in saying that his qualifications, experience and expertise were greater, then an inference might have been drawn from that, that the treatment he had received had was less favourable and he had been discriminated against. Whether such inference could or could not have been properly drawn would of course depend on the precise findings in the circumstances, but having not made the primary finding of fact the Tribunal deprived itself of the opportunity that it should have had of saying whether an inference should be drawn or should not be drawn. There is therefore a lacuna in the manner in which the Tribunal dealt with the matter which ought to be considered at a full hearing.
8. We are satisfied that there is merit in this contention. We think that whether or not the Tribunal ought to have made this primary finding of fact is arguable and that in failing to do so it is arguable that they erred and we think this is a matter that should go for full hearing.
9. Dr Al-Azzawi himself then added three additional grounds. Firstly, he said that the selection method when he applied for alternative jobs was not a level playing field in that he was chosen for interview face to face where the others were dealt with on paper and by proxy, not interview. Secondly, he alleges that he was given the lowest mark on all the tests and the Tribunal did not consider the reason why that occurred when on the face of it he was, on his evidence, the most qualified, the most experienced and the one with the most expertise. The Tribunal ought to have gone behind those marks and considered in their findings what was the basis of those marks, so as to properly assess the situation that he put forward. Thirdly, it is said that a performance pro-forma should have been available for him. He asked for it in order to examine it and see what its contents were, but was told that he was not entitled to have it. Another of the candidates was in fact given a performance pro-forma and the fact that he was not demonstrated different and discriminatory treatment. In those circumstances, he submits, it was wrong for the Tribunal to have dealt with it in that manner.
10. Miss Laing, in addition by way of intervention at the end of Dr Al-Azzawi's own submissions added that if one looks at paragraph 31 of the Decision of the Employment Tribunal they did not in fact make any finding on whether or not Miss Gassesshi had had her performance pro-forma. Indeed, in his submissions to this Tribunal, Dr Al-Azzawi says an envelope containing Miss Gassesshi's performance pro-forma was before them, but they declined to open it.
11. Dealing with those three submissions in turn we find as follows. Dr Al-Azzawi chose the interview route for himself, neither he nor the others were obliged to do so. We find no fault in the Tribunals approach to what Dr Al-Azzawi has described as the unlevel playing field. In relation to the lowest mark point, we do find that there is some substance worthy of argument at a full hearing on Dr Al-Azzawi's submission that the Tribunal did not deal properly with the basis of the marking system given his evidence that he was better qualified, more experienced and had more expertise.
12. In relation to the performance pro-forma point we also think that that justifies full argument in that it does appear on the evidence before the Tribunal that a Miss Gessesshi had had a performance pro-forma, and the Tribunal made no finding as to whether she had or not. That too is an interrelated matter which can be criticised by way of argument and should be considered at full hearing by the Tribunal. On those points (and we emphasise on those points alone) we give leave therefore for the matter to go to full hearing. We will also say to Dr Al-Azzawi that he has, as I am sure, he recognises and has recognised today had considerable assistance from Miss Laing in presenting the points which merited true concentration rather than those of a much more general and repetitive nature which he submitted in writing to the court. It would be of great assistance to him in order to see whether his case has the merit that he submits that he is given similar assistance from Ms Laing or someone else of her ability when the matter goes to full hearing.