United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JAIN SWANN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. In this case Mr Ayovuare appeals against the decision of the Stratford Employment Tribunal, sitting on 2 April 2001, dismissing his complaint of unlawful racial discrimination brought against the Respondent, OCL Plastering (London) Ltd. That decision, with extended written reasons was promulgated on 9 May 2001.
2. His complaint arose out of the Respondent's failure to appoint him to the post of Senior Quantity Surveyor for which he had applied. He contended that the failure to appoint him, but instead to appoint a white applicant, Mr Greengrass, was less favourable treatment afforded to him on grounds of his race. He is of black African racial origin.
3. In short, the Employment Tribunal accepted the Respondent's evidential case that they had, in principle, identified Mr Greengrasss for the post, unexpectedly left vacant as a result of the resignation of their long-standing quantity surveyor, Mr James Wiskin, before receiving the Applicant's job application. They found that explanation for the Applicant's non-appointment to be an adequate and satisfactory explanation for the difference in treatment between the Applicant and Mr Greengrass. See King & Great Britain-China Centre [1991] IRLR 513, in particular the 4^th of Neill LJ's propositions at P518 of the report, as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 34, paragraphs 16-17, per Lord Browne-Wilkinson.
4. In this appeal Mr Ayovuare took two points. The first was that the Respondent ought not to have been allowed to amend their notice of appearance at the hearing. That point is no longer pursued by Miss Swann who appears on his behalf today under the ELAAS pro bono scheme. The second point is that he submits that the evidence given by Mr Occleshaw as to his holiday arrangement at the relevant time conflicted not only with the original notice of appearance but also the amended notice of appearance and that in view of that inconsistency the Employment Tribunal ought to have found that Mr Occleshaw was not a credible witness. The way this point is put by Miss Swann is to say that in view of those inconsistencies the Employment Tribunal's conclusion that Mr Occleshaw could be relied on as a witness of truth was illogical and we think that there is some resonance in the collection of epithets to be found in Mummery J's judgment in Stewart v Cleveland and Guest Engineering Ltd [1994] IRLR 440-443 where he refers to perversity in the Employment Tribunal's decision as including a decision which flies in the face of properly informed logic.
5. We must draw a careful distinction between that extreme to be found rarely in Employment Tribunal's decisions and an attempt by an Appellant simply to challenge findings of fact, those being for the Employment Tribunal and not for us on appeal. In our judgment the point made in this appeal is simply that; an attempt to challenge a finding of fact. We are told and have no doubt that the inconsistency to which we have referred was pursued by Mr Ayovuare in the course of cross-examining Mr Occleshaw. It was for the Employment Tribunal to decide, as the Tribunal fact, whether or not that inconsistency gave rise to a finding that Mr Occleshaw was other than a credible witness. They having seen him, decided that he was credible and that it seems to us is a matter for them. Accordingly, that being the only point pursued in this appeal, it must be dismissed.