United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr G H Zakeri Dehvasati In Person 93 Regent Walk ABERDEEN AB24 1SX
For the Respondents	Mrs A Mollison, Solicitor Of- Aberdeen City Council Legal Services Town House Broad Street ABERDEEN AB10 1AQ

SUMMARY
RACE DISCRIMINATION

Race Discrimination – issues of fact


 


LORD JOHNSTON:

1. In this appeal the appellant takes issue with the finding of the Employment Tribunal in relation to a job application he submitted to the respondents, that such was not submitted timeously, and, was, therefore, not considered by the respondents. The appellant's basic position was that this amounted to racial discrimination against him since he is an Iranian. The simple answer put forward on behalf of the respondents is that they treated everybody the same way and the time limit was an absolute one.
2. Before the Tribunal and again raised by the appellant before us, the fundamental issue was a question of fact.
3. The position of the appellant is as stated by the Tribunal as follows:-

"Mr Zakeri received the application form from the Council on Saturday 28 September and he completed it over the weekend (R1). He claimed that on Monday 30 September 2002 he went to the Job Centre at 9am and copied the relevant documentation. He claimed that he then went to the Council's Personnel Department on the 13^th Floor of St. Nicholas House, Broad Street, Aberdeen. He claimed that he went there, no later than 11am. He claimed that he handed in the completed application form, in a sealed envelope, addressed to Mr Richard Parker, the Corporate Director of the Personnel and Organisational Development Department. He claimed that he handed it over at the reception to Lee McNicol whom he recognised."

4. On the other hand, the position of the Council was as follows:-

"The Council's position, therefore, was that as the application form had not been lodged timeously, in accordance with its normal practice, it would not be considered. The Council's position was that while it accepted that the applicant had handed in the application form, personally, on 30 September 2002, it had not been handed in by him until well after the 12 noon deadline, at around 3.45 pm."

5. Against that background the decision of the Tribunal was as follows:-

"The issue in this case was clear. It was whether Mr Zakeri had handed in his application form for the Technical Officer post timeously, as he claimed, or whether it had been handed in late, as the Council claimed. If he had handed it in on time, then we would have to consider what inferences could be drawn from the Council's refusal to consider it; if not it seemed that the Council had followed its normal practice when dealing with late applications.

Mr Zakeri claimed that there was a "conspiracy" against him by the Council and that its witnesses, Mrs Smith, Mrs Sullivan and Mr McNicol were all part of that conspiracy. He also claimed that the Council was part of a larger conspiracy against him over a number of years. We had no difficulty whatsoever rejecting this allegation, for which there was no evidence on which it could be founded. There was no motive for the Council's witnesses "conspiring" against Mr Zakeri and giving false evidence, as he alleged. As we recorded above, we were of the view that the respondent's witnesses, Mrs Smith and Mrs Sullivan, were entirely credible and reliable. They were in no doubt that the application form was handed in by Mr Zakeri around 3.45pm on Monday 30 September 2002 which was after the 12 noon closing time that day. While only in Affidavit form and therefore of lesser value, their oral evidence was corroborated by that of Lee McNicol. We were also in no doubt that Mr Zakeri was aware that the application form had to be handed in by 12 noon that day.

Our only concern was that Mr McNicol did not tell Mr Zakeri at the time that his application was late. He claimed in his Affidavit that the reason for this was that: "Once before sometime ago I witnessed Mr Zakeri corner another member of staff and he was a bit pushy. Normally I would tell someone that they are late but I didn't feel up to telling Mr Zakeri." Mrs Sullivan was also asked about this when she gave evidence and she thought that Mr McNicol had not told him: "As he didn't want a confrontation". In our view this was a plausible explanation and in no way undermined the evidence which we heard from Mrs Smith and Mrs Sullivan, in particular.

The only other matter of relevance which Mr Zakeri. raised was that the envelope with his application form was addressed to the Director, Mr Richard Parker and he suggested that Mr McNicol did not have authority to open it. However, we accepted Mrs Smith's clear evidence that all letters are opened unless they are marked "Private and Confidential", or that they are "to be opened by the addressee only", which was not the case with Mr Zakeri's application. Further, there was the clear evidence from both of the Council's witnesses and from Mr McNicol that he opened the envelope immediately and showed the application form to Mrs Sullivan.

We decided, therefore, without difficulty, that Mr Zakeri handed in his application around 3.45pm on Monday 30 September 2002. This was after the closing time of 12 noon which Mr Zakeri was aware of. The Council then followed its standard procedure by writing to Mr Zakeri to advise him that his application could not be considered as it had been received after the closing date (A2). Having made these findings we had no difficulty in arriving at the view that Mr Zakeri had not been treated differently from any other applicant who submits a late application. It was clear, therefore, that he was not discriminated against because of his race. His application is dismissed."

6. Before us the appellant submitted two letters which he asked to be treated as his written submissions, dated respectively, 9 and 20 August 2004 and we were happy to do so. It has to be noted that within those letters many issues, far beyond the one focussed on by the Tribunal, are raised by the appellant including suggestions of conspiracy and fabrication together with abuse of process by the Employment Tribunal. Upon those matters we make no further comment.
7. Before us, however, in the course of his submissions, the appellant did reiterate precisely what he had said to the Tribunal, as we have just recorded.
8. Mrs Mollison, appearing on behalf of the respondents, also submitted a short written submission which she simply, at our suggestion, adopted. It was substantively to the effect that this Tribunal, as an appeal body, cannot review questions of fact which are legitimately determined by the Tribunal below.
9. That is precisely the case in the present case. On the face of the decision, and, despite certain allegations made by the appellant, we see no reason to interfere with the findings of fact made by the Tribunal, particularly with regards to the credibility of the relevant witnesses. It is therefore not open to this Tribunal to review or reconsider the matter.
10. We recognise that the appellant has deep-seated feelings of grievance both in relation to the respondents and of wider issues, but, while sympathising, there is nothing we can do in that respect.
11. In these circumstances the appeal is refused