United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE REID QC: This is an appeal by Mr Fowler against a decision of the Employment Tribunal sitting at Birmingham which rejected his claim against the Worcester City Council. At this stage it is an ex parte preliminary hearing to determine whether the appeal should go to a full hearing.

1. The facts, so far as they are not in dispute, are that Mr Fowler was engaged as a ground maintenance worker by the City Contracts Services Department of the Worcester City Council from 3rd August 1998 to 8th September 1998. He was dismissed on that day and he says that his dismissal was induced by remarks made by a Mr Redfern, the Parks Technical Assistant in the Leisure Services Department to Mr Martin, the Grounds Maintenance Manager, in the City Contracts Services Department. Mr Fowler says that the remarks were founded on racism and his dismissal was an act of direct race discrimination.
2. The Council's case is that Mr Fowler was engaged as a casual labourer. The amount of work needing to be done was reduced. As a result they had to lay off casual labourers. They in fact laid off two casual labourers. The reason that one of those was Mr Fowler was because it was a case of "last in, first out." The Council's case is that there were no racist remarks made by Mr Redfern to Mr Martin concerning Mr Fowler and, indeed, the finding of the tribunal is that at the time of the implementation of the instruction to reduce the number of casual operatives in line with the reduction of hours, Mr Burton and Mr Jennings, who were the people responsible for arriving at the decision which led their disposing of the services of Mr Fowler and another employee, had not spoken to Mr Martin or Mr Redfern; they had been under no pressure from either and that Mr Martin and Mr Redfern, who were unaware of the process of selection.
3. I should say that the basis on which Mr Fowler says that the racist remarks were made is this: he says that there was a difference of opinion as to whether he could use certain toilet facilities which were connected with a bowling green on some the Council's property; that as a result of that he went and spoke to a Miss Johnson, who was an employee of the Council, that she told him that there was no reason which she knew about why he, as a Council employee, should not, but that he gained the impression from her manner that she took against him because of his race, that she had then told her immediate superior, Mr Redfern, a pack of lies about Mr Fowler. Mr Redfern then passed on that pack of lies further up the line, so to speak, to Mr Martin, and that it was as a result of that that Mr Martin, according to Mr Fowler, caused Mr Fowler to be dismissed, though, according to Mr Fowler, because of Mr Martin's sensitivities, he gave an untrue reason to Mr Fowler for his dismissal, namely that there had been a reduction in work, when in fact the reason for dismissal was the untrue complaint made against him.
4. Those matters were all ventilated in a lengthy hearing before the Employment Tribunal. A hearing which took place over a total of four days, though Mr Fowler says that a great deal of time was wasted and in fact only about five hours worth of the hearing was devoted to matters which were really in issue and he further says that really there were very few witnesses of those called who had anything to say about the points in issue and the only people who could say anything relevant were Miss Johnson and Messrs Martin and Redfern.
5. The tribunal had to consider those matters and had also to consider Mr Fowler's belief that he was not just a casual labourer but was a temporary labourer and that he had a contract which should have lasted until December and that he was, in any event, entitled to a week's notice or a week's payment in lieu.
6. The tribunal's decision dealt with all those matters at some considerable length. The tribunal came to the conclusion, on the evidence (and there was evidence on which they could come to conclusion), that Mr Fowler was a casual employee, that he was dismissed because of a reduction in work, and that the decision that was made had nothing whatever to do with the fact that he is "coloured", as he describes himself, but was arrived at simply on normal practice of "last in, first out."
7. This Appeal Tribunal can deal only with points of law. It cannot retry a case, nor can it consider what might have been the case if the Employment Tribunal had had in front of it other evidence.
8. Mr Fowler took the view that the fact that the tribunal believed evidence, which according to him was a pack of lies, amounted itself to a mistake of law and that that gave rise to a point of law.
9. Unfortunately, that is not the position. The fact that a tribunal may have believed evidence which it should not have believed does not mean that the tribunal has made a mistake in law. It is not, for example, a case where the tribunal made findings of fact for which there was no evidence, there was evidence for all the findings of fact which the tribunal made and the tribunal were entitled to accept that evidence. No doubt Mr Fowler believes that the tribunal were profoundly wrong to believe that evidence. But that is not something which this Appeal Tribunal can determine. Here, there no question of there being no evidence, nor is there any question of there being, for example, a question of the proper meaning of some part of one of the relevant Acts of Parliament.
10. The end result, I am afraid, is that although Mr Fowler passionately believes that his dismissal arose from discrimination against him because of his colour, the findings of fact, which were made by the tribunal, were findings of fact which held that his dismissal had nothing whatever to do with his race, with colour, and was a dismissal based entirely on proper business considerations. Because there is no point of law, it follows that there is no basis on which this matter can go to a full appeal.
11. We entirely accept the genuineness of Mr Fowler's belief that he has been discriminated against because of his colour. We entirely accept Mr Fowler's assertions, as did the tribunal, that there had been many occasions in his life when he has been discriminated against because of his colour. But this Appeal Tribunal is a statutory tribunal with limited powers and those powers do not extend to substituting its own view of the facts for the view of the facts which were taken by the tribunal below. Because the Employment Appeal Tribunal cannot substitute its own view of the facts, its own view of the witnesses whom it has not seen, for those of the tribunal which has to decide the facts, namely the Employment Tribunal, and because there is nothing that the tribunal or lawyers generally would recognise as being a point of law, it follows it is not, in our view, a case which should go to a full hearing and the appeal must therefore be dismissed.