A1/2000/2552

Neutral Citation Number: [2001] EWCA Civ 220
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

	Royal Courts of Justice
	Strand
	London WC2

	Tuesday, 13th February 2001

B e f o r e :

LORD JUSTICE HENRY

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SIDNEY XAVIER	Appellant/Applicant

-v-

THE HIGHWAYS AGENCY	Respondent

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Mr Xavier appeared in person and was represented by a McKenzie Friend, Mr Singarayer.

Mr M Bishop (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

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J U D G M E N T
1.	LORD JUSTICE HENRY:The applicant brings this application for permission to appeal from the decision of the Employment Appeal Tribunal, made at a preliminary hearing, to dismiss the appeal from the Employment Tribunal decision dated 17th September 1999. 
2.	The issue before the Employment Appeal Tribunal at the preliminary hearing was twofold: who employed the applicant, and whether it made any difference. The Employment Tribunal had decided, amongst other things, that the claim only related to actions and failures within the Highways Agency. But before the Employment Appeal Tribunal the applicant argued that the Crown was his employer, not the Highways Agency. It is said that there were two consequences of that: first, there was a difference of approach depending on whether section 32 or section 75 of the Race Relations Act 1976 was used; and second, the scope of the evidence would have been wider if the applicant had been found to be employed by the Crown. That is the first point taken on behalf of the applicant at this hearing.
3.	The Employment Appeal Tribunal decided that whether he was employed by the Crown or by the Highways Agency made no difference to the application of section 32 or section 75. They decided that in any event it made no difference because the Employment Tribunal had admitted and considered evidence of events that had occurred before he was working for the Highways Agency, when he was working for the Property Services Agency. In particular, they had considered the question of racism through the whole period at both the Property Services Agency and the Highways Agency, and so consequently the case would not have developed in any different way because all the evidence was in fact adduced. In my judgment the Employment Appeal Tribunal were entirely right to reach those conclusions.
4.	There are two further and linked points. The appeal here lies on a ground of law only. In order, in what was essentially a factual inquiry, to translate it into a ground of law it is submitted that the Employment Tribunal were perverse. I have listened to the reasons that are set out for that. I am not persuaded. This was a long and careful judgment by the Employment Appeal Tribunal. They carefully considered the allegations of racism that were made in all of this. They concluded as a matter of fact that the failure to promote the applicant was not based on racism but was based on doubt as to whether he was of managerial material. That was a conclusion they were entitled to reach on the material before them. 
5.	The test for the granting of permission is whether the appeal appears to have a real prospect of success or whether there is some other compelling reason why it should be heard. I am satisfied that these requirements are not made out in this case and therefore, for those reasons, this application must be dismissed. 
Order: application dismissed.
(Order does not form part of the approved Judgment)