United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R DE MELLO (of Counsel) Messrs Eddowes Perry & Osborne Solicitors 46 High Street Sutton Coldfield West Midlands B72 1UL


 


RECORDER LANGSTAFF:

1. This is a case which comes before us by way of preliminary hearing in a proposed appeal. The appeal is against a decision of the Employment Tribunal sitting in Birmingham which gave extended reasons on 2 October 2001. By those reasons it dismissed the Appellants claim that he had been discriminated against on the grounds of his race. The Tribunal had earlier on 23 June 1999 made a similar decision. In respect of that decision the Appellant had appealed to this Tribunal. The judgment of this Tribunal presided over by Mr Recorder Jeffrey Burke QC was that the matter should be remitted on one narrow ground to the Employment Tribunal.
2. That narrow ground was to determine whether or not the circumstances of the Appellant's case were or were not properly comparable with those of two possible comparators, Mr Mason and Mr Jones.
3. When the matter returned to the Tribunal it addressed the issue of the comparisons as it should have done on the occasion when the matter was first before the Tribunal. It found in paragraph 3(g) of its decision that there were three factors which in its view distinguished the case of the Appellant from those of Mr Jones and Mr Mason.
4. Those three factors are that the property which each was alleged to have stolen was of very different value. The Appellant was involved with some £10,000 whereas in the case of Mr Jones there was a three figure sum and Mr Mason a two figure sum. Secondly, there was a difference because the £10,000 was the property of customers whereas the property in respect of Mr Jones and Mr Mason was the property of the Respondent itself. Thirdly, was an evidential point. The quality of the evidence was such that in effect the defaults of Mr Mason and Mr Jones were much more easily uncovered, indeed might be said to be obvious, given that in Mr Jones' case he admitted the alleged borrowing of £700, and could not easily be concealed given that in Mr Mason's case he was filmed on video. By contrast the Tribunal held the cash and the cheques, the theft of which it was alleged the Appellant was involved in were never recovered and guilt was not admitted. The question that arose was whether those three factors were capable of amounting to a distinction between the case of the Appellant and the case Mr Mason and Mr Jones. The Tribunal decided they were.
5. Mr de Mello in realistic helpful and focused submissions on behalf of the Appellant has argued, rightly in our view, that he has to demonstrate that the decision is perverse if there is to be any arguable point in this appeal. He accepts that of the three distinctions made he has to show that each of them arguably has no value as a point of distinction. He accepts that the decision as to what are material factors for comparison is one for the Employment Tribunal itself to make. The only qualifying matter in respect of that is whether or not the Employment Tribunal then reached a decision which no reasonable Tribunal could reach. That would be a decision which might be met with the observer commenting, "My goodness that is certainly wrong." It would have to be a decision which was in the often repeated words of this court and the court of appeal, "wholly impermissible."
6. The question which this Tribunal would have to address if this matter were to go forward to a full hearing, would be whether or not it could ever be in the position not simply of approving or disapproving of the result, which is not its function, but of saying that the Tribunal was simply not entitled and could not be entitled, did not have the material to reach the decision it did. We do not think this Tribunal could go that far. It follows that we can see no arguable point in this appeal and grateful as we are to Mr de Mello for his submissions, we have to decline them. This appeal must therefore be dismissed. It is for that reason that on this preliminary hearing we have set out our reasons in full.