United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J DONOVAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J R REID QC:

1. This is an application on behalf of Mr Khan by Mr Donovan, the ELAAS representative, for an adjournment of Captain Khan's appeal against a decision of an Employment Tribunal held at Cardiff in March 2001.
2. Mr Donovan realistically accepts that the only ground of appeal at present advanced has no prospect whatever of success. Indeed, on the face of it, it is clearly hopeless, but he submits that Captain Khan should be given the opportunity of attending in case something else can be dug up out of the decision and out of what went before the decision, which might give a ground of appeal not hitherto hinted at. We have read the decision which is clearly a careful one and is one which gives rise to no identifiable point of law.
3. Captain Khan's application for this hearing to be adjourned was made by fax to the Employment Appeal Tribunal on 17 October. He says:

"I would like to inform you that I am on the ship and unable to attend the hearing which will commence on 19 October 2001. Please cancel the hearing and give me another date.

I am waiting for your favourable reply. An early favourable reply will be highly appreciated."

4. It will be observed that he does not indicate where the ship is or why it was impossible for him to apply for his adjournment before, given that by the time he made this application he had been aware of the hearing date for over three months. The only information that Mr Donovan has is that Captain Khan is now working on a basis of two months on, one month off. He has not vouchsafed to Mr Donovan where he is, who he is working for or what route. The latest information that we have is that in March Captain Khan was working for P & O Ferries in Dover. At that stage it was week on, week off.
5. In our judgment it would be wholly inappropriate to adjourn this matter. Captain Khan has shown no regard for the Tribunal in not making his application earlier. There is no indication that an adjournment would be of the slightest service to him and it is in the public interest that the Tribunal's lists do not remain cluttered up with unmeritorious appeals put off from time to time at the whim of the Appellant. The application to adjourn will be dismissed.
6. Dealing now with the substantive appeal, this was a claim by Captain Khan for racial discrimination. The decision was given on 28 March 2001 following a hearing which had lasted over three days.
7. The Respondent is the Cardiff County Council and the dispute arises out of the development of Cardiff Bay. As a result of the development a harbour was created where the rivers Taff and Ely run into the sea by the construction of a barrage. That harbour having been created there was a recruiting campaign to recruit, amongst others, a Senior Locks Manager, a Harbour Master and a Boatmaster. Captain Khan applied for each of those three positions. He did not get any of them. So far as the post of Senior Locks Manager was concerned, he failed to attend for an interview. He says that this was the fault of the Cardiff County Council: that was rejected as a matter of fact by the Tribunal which held on the balance of probabilities it was Captain Khan who muddled the date of the interview.
8. So far as the position of Harbour Master was concerned, he was not even short-listed, which was the next post that was dealt with. There was no evidence from the interview or from the application form that he had researched the job that he was applying for or showed any real knowledge of the Bay, despite the fact he had lived not far from it. The Tribunal observed it would have been wise for him to fill some of the gaps in his knowledge. It was not evident to the interviewing panels that he had done so.
9. The position at the end of the day was that, although he was interviewed, another person, Captain Corcoran who did have the appropriate experience was appointed. The Tribunal found that there was no evidence which would support any suggestion that Captain Khan's rejection in favour of Captain Corcoran had anything whatever to do with race.
10. Thirdly, there was the position of Boatmaster for which he was not short-listed and, as a matter of fact, the Tribunal were satisfied that out of the 122 applications for that job it was appropriate not to short-list Captain Khan. The Tribunal dealt with the way in which the applications were sifted by Captain Corcoran and then checked by a Mr Howell, the Operations Manager. The Applicant's written application on this occasion showed no substantial evidence of any experience in navigating small craft which was one of the main criteria.
11. The Tribunal were critical of the way in which Captain Khan had made his application and the lack of proper information being given. They therefore held there was nothing to suggest any racial element in the decision not to short-list him. Those three were all decisions of fact.
12. The Notice of Appeal which was put in and received by this Tribunal on 18 June was, so far as the grounds were concerned, in these terms:

"6 The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that it failed to consider properly or at all the Appellant's contention that it was a legal requirement that the person appointed to the post of harbour master holds a seafaring qualification which the person appointed to post did not have."

13. Even assuming that the appointors made an error as to the qualifications of Captain Corcoran and, even assuming that such a qualification was a legal prerequisite of the job as Captain Khan contents, it does not follow that Captain Khan was discriminated against on the grounds of race. We should make it clear that there is nothing in the bundle to suggest either that Captain Corcoran did not have a seafaring qualification (whatever that might mean in Captain Khan's terms) or that such qualification was necessary for the post.
14. In the event it is plain that the Notice of Appeal, as presently drafted, does not raise any point on which Captain Khan could possibly succeed in upsetting the decision of the Tribunal below and in those circumstances the appropriate course is to dismiss this appeal at this stage.