Appeal No. EAT/413/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 28th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR T S BATHO

	MR D O GLADWIN CBE JP

MR K C EKE	APPELLANT

(1) J E ROSE	RESPONDENTS
(2) W I HERON
(3) THE COMMISSIONERS OF CUSTOMS & EXCISE

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR K C EKE
(In Person)

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal by Mr Kyrian Eke against a decision of the Industrial Tribunal sitting at London (South) on the 12th, 13th and 14th January and 2nd February 1993.

	The Tribunal unanimously decided that Mr Eke's claim of racial discrimination was not made out. It was dismissed.  The complaint of racial discrimination was made against Mr Eke's employers, the Commissioners of Customs & Excise, and two of his colleagues Mr Rose, a line manager, and Mr Heron, his immediate superior and a Higher Executive Officer.  

	Mr Eke was dissatisfied with the decision which was contained in Full Reasons notified to the parties on the 6th April 1993.  He decided to appeal. His Notice of Appeal, dated 14th May 1993 sets out many points on which disputes the decision of the Tribunal.  The Notice of Appeal runs to 23 pages and, close to this hearing, it was supplemented by further particulars in support of his Notice of Appeal, dated 8th February 1994, which run to another 11 pages.  

	Mr Eke appeared "in person" before this Tribunal in order to explain the grounds upon which he was dissatisfied with the decision.  He made helpful submissions to the Tribunal in support of his appeal.

	Before I turn to the facts there are two important points to emphasise.  First, this is not the industrial tribunal, which hears cases of complaints of racial discrimination, sex discrimination and unfair dismissal and investigates the facts in depth, listening to witnesses, examining the evidence, and hearing submissions and argument.  This Tribunal is the Employment Appeal Tribunal. It hears appeals from industrial tribunals' decisions.  All it can do under the Act of Parliament which set it up is to hear appeals on an error of law on the part of the industrial tribunal.  I emphasise that this Tribunal, as an Appeal Tribunal, has no power to conduct a re-hearing of the facts and come to a different decision because it takes a different view of the facts than the industrial tribunal.  This Tribunal looks at the relevant Act of Parliament, in this case the Race Relations Act 1976, at the relevant principles of law and procedure and decides whether there was an error of law in the way that the industrial tribunal conducted the hearing and reached its decision.

	The second point, is that this hearing is a preliminary hearing.  The purpose of a preliminary hearing is to decide whether or not the person who is appealing, in this case Mr Eke, has an arguable point of law.  If he has not, then there is no point in having a full hearing attended by the Respondents, because there is nothing that can be usefully argued at the full hearing.  If there no arguable point of law then the appeal must be dismissed at this stage.  

	With those comments in mind we look at the background to this dispute.  Mr Eke, who is of African background, joined the Customs & Excise in June 1972 as an Executive Officer.  In recent years he has been engaged in the disposal of seized goods held in warehouses and related matters.  On the 12th February 1992 he made a complaint to the Industrial Tribunal that he had been discriminated against and disadvantaged as a result of Mr Rose and Mr Heron allowing their judgment of his performance to be impaired by discriminatory and victimising actions of the personnel directorate against him.  The basis of the complaint is set out in the Application.  The summary of the complaint is this:  that Mr Eke was transferred to the CDE4 which deals with the management and disposal of seized goods and that once he had arrived reports were to be made assessing his efficiency.  On the 20th April 1990, his immediate supervisor made a first mini-appraisal;  on the 30th October 1990, he made a second mini-appraisal and on the 15th November 1990, Mr Rose, the line manager, made a staff report covering the period from 26th July 1990.  Various comments were made in that report which led Mr Eke to bring his complaint.

	The Tribunal heard the defence of the Commissioners of Customs & Excise and Mr Rose and Mr Heron.  The basis of the defence was that it was denied that there had been any racial discrimination.  Mr Eke appeared "in person" and the Respondents were represented by Counsel.

	The Reasons for the decision set out the claim of racial discrimination.  The Tribunal dealt with an application at the beginning of the proceedings from Mr Eke in relation to his intention to go into the whole history of his employment with the Respondents.  They mentioned that there had been certain applications in the past and decisions had been given on allegations of racial discrimination.  The Tribunal took the view that those matters had been litigated and could not now be re-opened.  Their decision, investigations and conclusions in the present complaint were confined solely to the events surrounding the preparation of the staff report.  One of the points taken by Mr Eke is that discloses an error of law on the part of the Tribunal.  He makes the point that the Tribunal should have allowed him to go into the earlier history of the matter, because earlier reports on him would have demonstrated, or might demonstrate, continuous discrimination by the Respondents.

	In our judgment, there is no point of law.  It was for the Tribunal to decide what was relevant to the particular complaint that was made.  The particular complaint was race discrimination in respect of this staff report.  It was not necessary in dealing with that complaint to go into different allegations of racial discrimination made at earlier dates.  The Tribunal rightly held that it only had to consider the complaint which Mr Eke was actually making.  There was no error of law in the sense of contravening the rules of natural justice or depriving Mr Eke of a proper opportunity to present his case on all the relevant material.  Certainly he was not able to put before the Tribunal work submissions, documents, personnel directorate documents and so on which related to earlier events.  But there is no error of law in drawing a line between what is relevant to the immediate complaint and matters of history.

	The Tribunal went on, in a very full decision, to set out the background of the transfer of Mr Eke to the CDE4 Department and of the mini-appraisals made on the 23rd August and the 30th October 1990.  They came to the staff report, which was analysed in detail by the Tribunal, referring to various aspects of Mr Eke's work performance, including one of the particular matters namely oral communication.  On the final page of the report comes the matter which gives rise to one of the grievances of Mr Eke.  Mr Heron marked Mr Eke as "not fitted" for promotion to HEO and wrote underneath:
		"Needs to improve communication skills before he can manage others.  Must also display a greater ability to delegate work.

		Must show more initiative and less reliance upon written instructions . ."

The Tribunal, having completed its review of the staff report, stated that it heard evidence from Mr Eke in support of his claim for racial discrimination.  It also heard evidence from Mr Heron and Mr Rose.  The Tribunal, in paragraph 15, stated its conclusions of fact.  The Tribunal decided as a fact that there was no racial discrimination.  It stated its view that Messrs Heron and Rose had conscientiously addressed themselves to the task of how they should manage Mr Eke, who had been sent to them on a Formal Inefficiency Report, and that they did not either, when compiling the mini-appraisals or in the way that they completed the staff report, discriminate against him in any way, let alone on racial grounds.  The Tribunal went out of its way to state that Messrs Heron and Rose had addressed themselves to the task, had honestly and fairly reported on the capabilities and performance of Mr Eke and neither of them was in any way concerned to do otherwise than report, conscientiously and impartially, making helpful and constructive suggestions.  Mr Eke had received nothing but encouragement from his two colleagues.  The Tribunal stated that, as regards the comments on Mr Eke's accent, neither Mr Heron or Mr Rose intended to discriminate against him in any way because of his African background or of the way in which he speaks English.  They viewed the various remarks that were made and concluded that none of them showed that there was racial discrimination.  They were comments simply on the way an accent is possessed by Mr Eke.  These comments could have been made whatever colour or racial origins of the person before them.  They therefore stated:
		"We cannot find that Messrs Rose and Heron have in any way discriminated against the Applicant either generally or on racial grounds."

The Tribunal made various comments as to their hope Mr Eke would regard this as an unjustified grievance, put things behind him and settle down to endeavouring to get the tasks done satisfactorily in his work.  The application was dismissed.

	In his Notice of Appeal Mr Eke makes many complaints.  I have already mentioned and dealt with one of them, that is the Tribunal's ruling that it was not relevant to consider the earlier history of alleged acts of discrimination.  As to the other items we are satisfied that there is no point of law.  The Tribunal dealt with the matter of the comment on oral communications as discrimination.  It found as a fact there was no discrimination by Mr Heron and Mr Rose.  They would not have treated a person of a different ethnic origin any differently in making such comments relevant to promotion.  Mr Eke has set out, in great detail in the Notice of Appeal, many points under heading of natural justice or mistakes of law on the part of the Tribunal.  In our judgment, they do not reveal any error of law in the application of the relevant sections of the Race Discrimination Act 1976 to which he has drawn attention in the main ground of his appeal.  Those sections are mentioned on page 2 of his appeal as Sections 1(1)(a), 2, 3, 32 and 33, read together with Section 4.  The position comes to this.  Taking into account all the individual points mentioned in his oral arguments and in his written Notice of Appeal, Mr Eke has two main submissions:  the first is that the Tribunal failed to deal with or ignored the central issue of discrimination of the case;  the second is that, in so far as it did deal with it, its decision was perverse and against the weight of the evidence.

	We are satisfied that there is not an arguable point of law either in relation to the central issues in the case.  The Tribunal did address itself to the central issues of the case. It made findings of fact and in consequence of those findings of fact it was inevitable that the application would be dismissed.

	 As to the allegation that the decision was perverse, this is not arguable.  There was ample material before the Tribunal in the form of the documents and the evidence from Mr Heron and Mr Rose on which a Tribunal could come to its decision.  It is not enough to show that this Tribunal, or another industrial tribunal, might have come to a different decision, that is, one in his favour.  The question is, whether this particular Tribunal came to a decision which was irrational, or contrary to all the evidence.  That is not arguable.  In those circumstances Mr Eke has failed to make out the error of law.

	Mr Eke obviously feels aggrieved, both by the way in which he feels he has been treated at work, and at the way he feels his complaint has been dealt with by the Industrial Tribunal.  If he does feel aggrieved, we feel then some sympathy towards him as an aggrieved person.  As an Appeal Tribunal concerned only with errors of law, there is nothing that we can do if there is no arguable error. 

	For the reasons stated there is no arguable error.  This matter cannot proceed further, and will therefore be dismissed.