Appeal No. EAT/161/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR I EZEKIEL
MR D A C LAMBERT

DR MARK EVANS	APPELLANT

THE POST OFFICE
	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MRS JUSTICE SMITH:	This is the second preliminary hearing of an appeal against the dismissal by an Industrial Tribunal sitting in Manchester  of the Appellant’s complaints of unfair dismissal and racial discrimination.

	A hearing took place in late November 1995.  The Appellant gave evidence for two and a half days.  He was then, as here, unrepresented.  After the luncheon adjournment on the third day, it is common ground that the Chairman expressed a preliminary view that the Appellant’s claim was unlikely to succeed.  

	There is a dispute as to whether the Chairman gave any reasons for having formed that view and whether he explained the consequences of the course which the Appellant then took, which was to withdraw his claim.  The Chairman duly dismissed the applications.

	In this appeal the Appellant claims that he was overborne by the Chairman’s remarks; that his understanding of his position was very limited and that he was put under intolerable pressure to withdraw his claim.  He seeks the opportunity to take this case back to an Industrial Tribunal for a full hearing.  

	This appeal came before another division of the Employment Appeal Tribunal for a preliminary hearing in May.  That Tribunal, after listening to some argument from the Appellant, adjourned the matter so that the court could have the opportunity to call for the observations of the Chairman and Members of the Industrial Tribunal upon the allegations which were being made by the Appellant.  We now have those observations.

	The Chairman, broadly supported by the Members, declares that he gave a careful explanation to the Appellant of his preliminary view that the Appellant’s case was unlikely to succeed.  He claims that he stressed that it was a matter for the Appellant to decide what to do and that he was entirely free to go on with the claim.  No decisions could be made by the Tribunal until all the evidence had been heard.  He says that he explained the legal consequences of withdrawal of the claim.  All this the Appellant flatly denies.

	It is not possible for us to resolve these serious factual disputes.  However, we have had the benefit of hearing the Appellant for approximately an hour today and we have unanimously formed the impression that he is not a man easily to be overridden.  He has demonstrated, in the course of his submissions, that he is well able to stand up for himself in argument.  We say that to his credit.  He has conducted this hearing sensibly, fearlessly and courteously.  In particular we have formed the clearest view that, whatever the Chairman said or did not say, the Appellant fully well understood the implications of withdrawing his claim.  We do not doubt that he understood his entitlement to continue and the consequences of withdrawal.  

	It seems to us in those circumstances that this appeal has no prospect of success.  However, we have given careful consideration to the question of whether there really was an arguable case on either of his claims before the Tribunal below.  We have examined the merits of his case, as well as we can, on the basis of his own version of events.  In order to explain our conclusions in this regard we shall describe the facts of the case very briefly and will gratefully adopt the exposition set out by Mr Justice Butterfield in the previous decision of the Employment Appeal Tribunal.  Mr Justice Butterfield said this:

“The appellant himself is white and of British origin, his wife however is Afro-Caribbean in origin.  He had been employed by the respondents, the Post Office since 1987.  From at least 1992 onwards the appellant complained that he had been subject to racial harassment at work from two of his fellow employees.  He complained to the management about their treatment of him, they in turn complained to the management about his treatment of them.  There was a running battle between the three men with accusations and counter-accusations forming an almost daily diet of their employment.  Eventually all three employees were found by the respondents to be harassing each other and all three were compulsorily transferred to other offices within the respondents control.
The appellant launched an internal appeal but was unsuccessful.  He was on sick leave from the time when the disciplinary finding against him was made.  At the end of November 1994 he notified the respondents that he was fit for work but was not prepared to move to the new offices to which he had been directed to attend.  On 12th December 1994 he was required to resume work at the new offices and notified that failure to attend would be regarded as unauthorised absence.  He was given further notification that continued failure to attend might result in his dismissal.  The appellant did fail to attend and was dismissed on 21st January 1995.”

	Today he accepted, quite freely, that he had been instructed to report for work at the Chorlton depot instead of the Stretford depot where he had normally worked and that he had refused to do so.  He said that he knew he could be dismissed for that refusal but that he had wanted to make the point that he thought he should not have been transferred.  Therefore, he decided to wait to see whether the employers would in fact dismiss him.  We are unanimously of the view that, even on his own version of events, he could not possibly have succeeded in his claim for unfair dismissal.  

	As to his allegation that the Respondents’ employers had discriminated against him on the ground of race, his complaints were that general racial abuse such as, for example, being called a “Kunta Kinty lazy bastard” and a “Cochice Indian bastard” had been levelled against him.  Also he claims that his colleagues had sung songs with plain racial overtones in his presence and directed towards him.  The employers took the view, rightly as it would seem to us, that that kind of conduct would amount to industrial misconduct in the context of a work place, but we do not see how it would be possible for a white man to complain that such abuse amounted to discrimination within Section 4 of the Race Relations Act 1976.
	
	We are unanimously of the view that a claim under the Race Relations Act, would, even put at its highest, have been hopeless.

	Accordingly, on both grounds, because we are satisfied that the Appellant understood what he was doing when he withdrew his case and also because we are satisfied that even on his own evidence his claims were hopeless, we have come to the conclusion that this appeal must be dismissed at this preliminary stage.