Appeal No.	 EAT/465/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1999
Judgment delivered on 27 September 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MRS D M PALMER
MR N D WILLIS

MR B TCHOULA 	APPELLANT

ICTS (UK) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING	

Revised

APPEARANCES

For the Appellant	

IN PERSON	

	MR JUSTICE CHARLES:	This appeal comes before us by way of a preliminary hearing.  The purpose of this hearing is for us to consider whether or not the appeal raises any reasonably arguable points of law.

1	Mr Tchoula appeals against a decision of an Employment Tribunal sitting at London (South), the Extended Reasons for which were sent to the parties on 5 February 1999.  As appears from those Extended Reasons the case was heard over 21 days between November 1997 and August 1998 and this was followed by 5 days in Chambers during September and October 1998.  

2	Mr Tchoula represented himself before the Employment Tribunal and also represented himself before us.

3	In paragraph 1(x) of the Extended Reasons the Employment Tribunal record as follows:

“Although there have been exchanges which demonstrate that there is still considerable rancour between the parties, they have conducted themselves throughout a long hearing with a degree of dignity.”

4	Mr Tchoula made submissions to us for about four hours and we would like to record that he did so in an engaging and clear manner.  He is clearly an intelligent man with a pleasant sense of humour.

5	The unanimous decision of the Employment Tribunal was as follows:

“1.	Each of the Applicant’s complaints that the Respondent racially discriminated against him contrary to section 1(1)(a) and 1(1)(b) of the Race Relations Act 1975 fails; and they are dismissed.
2.	The Applicant’s complaints of racial discrimination by way of victimisation contrary to section 2 of the Race Relations Act 1975 succeeds in respect of:
(i)	Mr Dewane’s acts on 5 August 1997; and
(ii)	Mr Lewis’ conduct of the subsequent disciplinary hearing and his decision to dismiss the Applicant.
3.	The Applicant’s contractual claims succeed in the total sum of £909.32.
4.	The Applicant’s claim under section 44 of the Employment Rights Act 1996 fails and is dismissed.
5.	The Applicant’s claim for unfair dismissal is stayed pending the decision of the House of Lords in R. v Secretary of State ex parte Seymour-Smith.  Once that case has been determined, further directions will be given.
6	The remedy hearing in respect of the successful claims is to be heard on a date to be fixed.

6	As appears from that decision Mr Tchoula succeeded on some of his claims.  His appeal is against paragraph 1 of that decision, namely the dismissal of his claims that he was racially discriminated against contrary to sections (1)(1)(a) and (1)(1)(b) of the Race Relations Act 1976 and against the dismissal of his other complaints of discrimination by way of victimisation, contrary to section 2 of the Race Relations Act 1976.

7	Mr Tchoula’s Notice of Appeal runs to 24 pages (although not all of them are complete pages).  He also put in a skeleton argument of 13 pages.  These are documents in which he helpfully identifies each of the matters which form the subject of his appeal.  

8	In his skeleton argument and in opening his submissions before us Mr Tchoula paid tribute to the manner in which the Employment Tribunal conducted the lengthy hearing.  It is clear to us that that tribute is justified.  

9	In the remainder of this judgment we will be citing passages from the Extended Reasons.  It is not appropriate for us to cite all of the Extended Reasons, but selected citation does not do them justice and they should be read as a whole.

Overview and Overall Conclusion

10	The two main prongs of Mr Tchoula’s attack on the decisions of the Employment Tribunal that form the subject of his appeal are:

(a)	that in respect of them the Extended Reasons contain no reasoning or no proper reasoning, and
(b)	perversity or, as Mr Tchoula puts it, some of the conclusions are “beyond belief”.

11	The main thrust of Mr Tchoula’s attack based on allegations that the Extended Reasons do not contain proper reasoning is that although the Employment Tribunal refer to the cases of King v The Great Britain-China Centre [1991] IRLR 513, and Zafar v Glasgow City Council [1998] IRLR 36 and cite from them, the Extended Reasons do not properly apply the approach set out in King and approved in Zafar, or do not give adequate reasons as to why the Employment Tribunal did not infer discrimination.  

12	In making his points we accept that Mr Tchoula has identified a number of matters which might have led the Employment Tribunal to reach different conclusions.  We also acknowledge that he is convinced, on the basis of the arguments he has advanced to us and from his personal experience of the relevant events, that all his complaints of racial discrimination and victimisation were justified.  However, in our judgment, what Mr Tchoula is trying to do on this appeal is to reargue the facts.  His arguments relate to both (i) the primary facts found and the inferences made, and (ii) the additional primary facts and inferences which Mr Tchoula says the Employment Tribunal should have made and recorded in their Extended Reasons.

13	However, in our judgment, in respect of each of the matters that are the subject of this appeal Mr Tchoula has failed to demonstrate that the approach adopted by the Employment Tribunal was incorrect in law, or that the Employment Tribunal have failed to adequately explain themselves, or that any of the conclusions that they have reached can be classified as perverse.  

Authorities

14	Like the Employment Tribunal we have had regard to the decisions in the King case and Zafar case.

15	In respect of his assertion that the Extended Reasons contain no reasoning (and as we understand it also in respect of his submission that they do not contain proper reasoning) Mr Tchoula referred us to Alexander Machinery (Dudley) Ltd - v - Crabtree [1974] IRLR 56 and to his own earlier case before this Tribunal, Tchoula v Netto Food Stores Ltd.  In this respect we have also had regard to Meek v City of Birmingham City District Council [1987] IRLR 250; Martins v Marks & Spencer Plc [1998] IRLR 326 and to High Table Ltd v Horst [1997] IRLR 513.  These cases show (amongst other things):

(i)	that the parties are entitled to know from the Extended Reasons why they have won or lost and what the Employment Tribunal has concluded in relation to the principal important controversial points, 
(ii)	the Extended Reasons should contain a sufficient explanation as to why the Employment Tribunal has preferred the evidence of one party to another and why it has made or has refused to make inferences, but
(iii)	Extended Reasons should not be subjected to a close or linguistic analysis and should thus be read generously.

16	As to this Mr Tchoula attacks paragraph 1(xii) of the Extended Reasons which is in the following terms:

“1(xii)	In the factual findings that follow, we have indicated the race and, where relevant, religion, of the witnesses and other personnel.  We also need to make clear that we cannot embark on the exercise of resolving every disputed fact that has arisen in the course of a long hearing.  This is not our function.  We set out below the relevant factual findings in relation to those issues that the parties have raised.”

17	Mr Tchoula says that that paragraph indicates an error in approach, or sows the seed of doubt as to whether the Employment Tribunal have made all necessary findings and included all necessary explanations in their Extended Reasons.  We do not agree.  In our judgment this paragraph reflects the correct approach to be adopted.  This does not however mean that if the Extended Reasons leave out important factual findings, or do not adequately explain to the parties why they have won or lost, they would not be defective.

18	As to perversity Mr Tchoula referred us to British Telecommunications Plc v Sheridan [1990] IRLR 27 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440.  We have also had regard to Piggott Bros & Co Ltd v Jackson [1991] IRLR 309.  In the Stewart case Mummery J gathers together a number of the expressions used in other authorities to identify perversity.  He also points out (and this is also of relevance in respect of the attack based on lack of proper reasoning) that it is not appropriate, or fruitful, to subject the language of the decision of an Employment Tribunal to “meticulous criticism” or “detailed analysis” or to trawl through it with “a fine tooth comb”.  In connection with victimisation the Employment Tribunal correctly referred to the decision of the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73 and, in particular, cited paragraph 13 of the judgment of Peter Gibson LJ in that decision.  At the time the matter was before the Employment Tribunal the decision of the Court of Appeal in the Nagarajan case was binding both on the Employment Tribunal and this Tribunal.  As the Employment Tribunal point out that decision was to the effect that to establish discrimination by way of victimisation an Applicant had to show that the Respondent had a motive consciously connected with the Race Relations legislation and thus with the protected acts relied on by the Applicant.

19	Recently the House of Lords have decided that to establish victimisation it is not necessary for an applicant to show conscious motivation and have reached a conclusion that the approach taken in victimisation cases should essentially be the same as that taken in cases relating to racial discrimination under section 1 and thus to the approach taken in the King case as approved in the Zafar case.  

20	In making his oral submissions to us Mr Tchoula relied on the approach taken in the cases of King and Zafar in respect of what should be inferred in relation to his arguments relating to racial discrimination under section 1 and to victimisation.  In doing so he did not refer to the recent decision of the House of Lords in Nagarajan.  Equally, he did not argue that the Employment Tribunal erred in law in referring to, and applying, the Court of Appeal decision in Nagarajan, having regard to the later decision of the House of Lords in that case.

21	In our judgment the change in approach to cases of victimisation resulting from the decision of the House of Lords in Nagarajan does not give rise to points of law that are reasonably arguable in this case.  We are of this view for the following reasons:

(a)	in applying the approach set out by the Court of Appeal the Employment Tribunal were applying authority that was binding upon them at the time, and
(b)	it would be wrong for us to allow an argument based on the decision of the House of Lords in Nagarajan to be raised for the first time on this appeal, because we cannot be satisfied beyond doubt that this Tribunal would have before it all the facts bearing upon the point that a claim to victimisation can now be based upon subconscious motivation (see RSC Order 59/10/10 and the cases referred to therein and also  Jones v Governing Body of Burdett Couttes School [1998] IRLR 521).

22	Further, and in any event, in this case the distinction between conscious and subconscious motivation in respect of the claims of victimisation made by Mr Tchoula is less important than in others, particularly when it is remembered that the Employment Tribunal inferred conscious motivation and thus victimisation in respect of Mr Dewane’s acts on 5 August 1997, and Mr Lewis’ conduct of the subsequent disciplinary hearing and his decision to dismiss Mr Tchoula (see paragraphs 39 (16)(ii) and see also paragraph 39(17)(iv)), and in contrast they were not prepared to infer conscious motivation and thus victimisation in respect of the incident on 24 June 1997 and the subsequent hearings relating to it (see paragraph 39 (12) (ii) and (iii), and see also paragraphs 39(13) and (15)).  The arguments in respect of both claims to victimisation were in effect, as Mr Tchoula put it to us, that the individuals acting for the Respondent company “had it in for him” in respect of both incidents.

23	In respect of both incidents the issue was therefore a stark one relating to the conscious motivation of the Respondent company and the refusal of the Employment Tribunal in respect of the earlier incident to infer that the reason why, or a significant reason or influence on why, Mr Dewane, Mr Meirav and Mr Lewis acted as they did was because Mr Tchoula had made complaints of racial discrimination involves a conclusion that they were motivated by other reasons, and such conclusion would also be a factor against inferring that the individuals were subconsciously motivated by the protected acts.  We would add that, notwithstanding the reference to Mr Tchoula’s assertion in paragraph 39 (12)(i) that Mr Dewane pursued him “solely because he had brought the proceedings” on our reading of the Extended Reasons the approach of the Employment Tribunal in respect of both incidents was to ask themselves the correct statutory questions namely did the Respondent company treat Mr Tchoula less favourably by reason of the protected acts (see in particular the end of paragraph 37, and paragraphs 39 (12), (13), (15), (16)(ii), and (17(iv)).

The Points Raised by Mr Tchoula

24	We shall deal with these under headings.  The lettered points follow the lettering given to them by Mr Tchoula in his skeleton argument prepared on green paper for the preliminary hearing.

25	Point A:  Incident of 24 June 1997 (an alleged victimisation by Mr James Dewane)  
	Point G:  Mr Lewis’ conduct of the appeal and the decision arrived at (an alleged act of victimisation).
	Point F:  The Additional Point raised by Mr Tchoula in his skeleton: The issue regarding Shai Meirav chairing my meeting (while I have made allegations of discrimination against him) finding me guilty of putting my feet on the table and giving me a final written warning for it.
As to Point G in the body of his skeleton argument Mr Tchoula relies on this incident as being a complaint of victimisation and direct discrimination, but in the original headings to his skeleton and in his Notice of Appeal he refers to it only as being a complaint of victimisation.  As we understand it, the Notice of Appeal sets out the correct position.  This is how the point is dealt with in paragraph 39(15) of the Extended Reasons, which accords with paragraph 15 of annex A to the Extended Reasons.

26	The Employment Tribunal make its main findings of fact in respect of these matters in paragraphs 16 to 21 of the Extended Reasons and their conclusions are in paragraphs 39(12) to (15) of their conclusions.

27	Mr Tchoula says that the conclusion of the Employment Tribunal that this incident and the way it was dealt with do not constitute victimisation is unbelievable and perverse, when compared with the findings made in respect of the later  incident on 5 August and how that was dealt with by the Respondents.  

28	Whilst we agree that it would have been open to the Employment Tribunal to find that the June incident, and the way it was dealt with, amounted to victimisation and to support that finding by reference to the later incident, in our judgment it cannot be said that their findings in respect of the earlier incident, and the way it was dealt with, were perverse.  In our judgment the Extended Reasons show that the Employment Tribunal carefully considered the rival contentions in respect of this earlier incident, and the way it was dealt with, and made their findings of fact having regard to that consideration.

29	We have already dealt with the issue as to whether an arguable point of law arises having regard to the decision of the House of Lords in Nagarajan.  We have concluded that it does not, notwithstanding that we recognise that it is possible that the Employment Tribunal might have reached a different conclusion if at the time they were hearing the evidence and making their decision they had applied the approach set out by the House of Lords rather than that set out in the earlier decision of the Court of Appeal in the Nagarajan case.

30	In our judgment, the Extended Reasons demonstrate that the Employment Tribunal had regard to and took into account the points made to us by Mr Tchoula in respect of this incident, and the way it was dealt with.

31	A factor in respect of this incident, and the way it was dealt with, which is recognised by the Employment Tribunal in paragraph 39(12)(iii) of their conclusions is that whilst the allegation made by Mr Dewane that Mr Tchoula had been asleep has always been in dispute, Mr Tchoula never denied sitting at the desk in approximately the manner alleged by the two managers (Mr Dewane and Mr Harris).  As the Employment Tribunal point out this is a factor which supports their conclusion that the allegation made by the two managers had not been fabricated.  Before us Mr Tchoula asserted that he could not be seen from the street because, in accordance with the common practice of himself, and others, he had placed pieces of cardboard in the window.  He therefore asserted that the two managers must have gone to particular lengths to observe him sitting with his feet on the table.  He however accepted that that is what he was doing.  He went on to say that the evidence of the managers was incredible because any competent manager would not have stayed watching him for 8 to 10 minutes to determine whether or not he was asleep, but would have entered the building and taken something from his desk to prove the fact that he was asleep.  It seems to us that this is the type of detail that it is not necessary for the Employment Tribunal to record in their Extended Reasons.  Further, it is the sort of detail which Mr Meirav could have taken into account in determining that the allegations made by the managers that Mr Tchoula was asleep were not established.  It is quite clear that the Employment Tribunal do not proceed on the basis that it was established that Mr Tchoula was asleep.  Indeed, it is clear that they proceed on the basis that this was always disputed and was never established on the basis of the allegations made by the two managers that they had observed him for between 8 to 10 minutes sitting immobile with his feet on the desk.

32	Mr Tchoula also asserts that the Extended Reasons are defective because they do not:
	(i) 	deal with the fact that Mr Harris and Mr Dewane were friends, or
	(ii)	compare the position with the incident that took place in August, when Mr Patrick Doughty retracted his support for the allegation that was then made by Mr Dewane that he found Mr Tchoula asleep.  
In fact, in paragraph 39(1), which relates to their conclusions concerning the appointment of Mr Harris, the Employment Tribunal do record that Mr Tchoula’s case was that Mr Harris was a friend of Mr Dewane (see also the fourth and sixth sentences of paragraph 39 (16)(ii)).  In our judgment the omission to record this allegation of friendship, or to make findings as to it, in paragraphs 16 to 21 and 39 (12) to (15) and by reference to it to compare the incidents in June and August is not a failing of the Employment Tribunal that can be said to amount to an error of law.

33	Mr Tchoula also complains that the Employment Tribunal do not explain why they prefer the evidence given on behalf of the Respondent company that he had been observed for 8 to 10 minutes.  In our judgment this amounts to a misreading of the Extended Reasons which, in paragraph 16 states as follows:

“The two supervisors claim that they watched him through a glass door for 8 - 10 minutes.”

This is not a finding but simply records the claim made by the supervisors.  Also we repeat what we have said in paragraph 31 hereof and note that in paragraph 39 (12)(i) the Employment Tribunal record that the claim of victimisation can be made whether or not Mr Tchoula was asleep.  Further paragraph 39 (12)(iii) is not a finding as to the exact length of time that Mr Tchoula was observed, or that Mr Tchoula was asleep.

34	Mr Tchoula also says that the Extended Reasons contain a significant error in that they record in paragraph 39(12)(ii) as follows:

“Mr Dewane had earlier in the evening caught another guard asleep at London Road (R1, page 100).”

Mr Tchoula says that this is an error because in fact he had found that other guard asleep around midnight after his observation of Mr Tchoula and not before it.  However, Mr Tchoula did not go on to point to any convincing evidence that this was the case, or to the document referred to in that quotation.  Therefore we are simply left with a finding by the Employment Tribunal and an allegation by Mr Tchoula that it was wrong.  This does not demonstrate error let alone perversity.  In any event, and notwithstanding the reference in paragraph 39 (12)(ii) to “his decision to go and check Erlang House”, if the Tribunal had so erred it would not, in our judgment, be an error that was significant enough to raise an arguable point on this appeal on the basis that there was no evidence to support the finding, or otherwise.

35	Generally, as to this head of appeal we note that the Employment Tribunal made findings of fact adverse to Mr Dewane and Mr Lewis and took these carefully into account in reaching their conclusion that they could not infer the necessary causal link between the fact that prior to this incident Mr Tchoula had issued his IT1 and this was known by Mr Dewane and the conduct of Mr Dewane in observing and reporting him.  Additionally, the Employment Tribunal make findings adverse to the conduct of Mr Lewis and take this carefully into account in reaching their conclusion.

36	Turning to Mr Meirav, it is important to remember that this complaint in respect of his conduct relates to a claim of victimisation rather than one of bias or procedural unfairness in respect of the disciplinary hearing.  Mr Tchoula’s point is that he had made allegations against Mr Meirav in his IT1 and that Mr Meirav was upset about this.  He complains that the Extended Reasons do not contain findings as to Mr Meirav’s reaction to the IT1.  Mr Tchoula goes on to allege that it is obvious that Mr Meirav “was out to get him” because he had made allegations against Mr Meirav in the IT1 and because Mr Meirav gave him a final written warning based on a conclusion which was not one of the “allegations or charges made against him”.  This however ignores the facts that:
	(i) 	Mr Meirav did not proceed at all with two of the charges and rejected the third charge, namely that Mr Tchoula was asleep, and 
	(ii) 	Mr Meirav based his final warning on what was, in effect, an agreed fact.  
Mr Tchoula complained that point (ii) was unfair because he was not given the opportunity to put forward factors in mitigation because he did not know that this was a charge or allegation upon which a disciplinary action would be taken or, in the alternative, he says, it would probably have been fair enough for him to have received a verbal warning or caution.  

37	It is fair to say that the points Mr Tchoula put before us, which he said he would have advanced in mitigation, could be interpreted as points which exacerbated rather than mitigated his position.  However, whatever the answer as to that, these are issues which go to the procedural fairness of the hearing rather than to the issue of victimisation.  As to the issue of victimisation it is apparent from the Extended Reasons that the Employment Tribunal had regard to the points made by Mr Tchoula to found his assertion that Mr Meirav was “out to get him” and that on the evidence before them they rejected those assertions.

38	Point B: Dismissal and Re-employment of Mr Ben Kalifa (an alleged act of direct discrimination)
The main findings of fact made by the Employment Tribunal as to this are contained in paragraph 14 of the Extended Reasons and their conclusions are in paragraphs 39(6)(i) to (iii) of the Extended Reasons.

39	Mr Tchoula’s case is that he had the same contract of employment as Mr Ben Kalifa and that he received less favourable treatment than Mr Ben Kalifa.  The Employment Tribunal clearly considered these points and rejected the contention that Mr Ben Kalifa had received more favourable treatment than anyone else (see paragraph 39(6)(ii) of the Extended Reasons).

40	In his skeleton argument, and in his oral argument before us, Mr Tchoula concentrated on the point that although Mr Ben Kalifa had a disciplinary record with the Respondent company and, for example, as the letter dated 28 February 1997 shows, had been found asleep in an office in the extension block on the night of 24/25 February 1997.  Mr Tchoula’s argument is that notwithstanding this record and incident the Respondent company allowed Mr Ben Kalifa to continue working at sites other than the South Bank University after 28 February 1997.  As to this Mr Tchoula drew our attention to the minutes of the disciplinary hearing with Mr Ben Kalifa which took place on 27 February 1997 in respect of the incident which took place on the night of 24/25 February 1997, which indicate that the conclusion was that Mr Ben Kalifa would be dismissed, notwithstanding that the letter to him dated 28 February 1997 indicates, as is recorded in the Extended Reasons, that Mr Ben Kalifa would continue to work on contracts other than that with the South Bank University.  

41	Mr Tchoula alleged before us that the letter dated 28 February 1997 was a forgery which he accepted was a very serious allegation for him to make.  It was also, in our judgment, an odd allegation for him to make because the letter reflects what he says the position was on the ground and the facts which he relied to show that Mr Ben Kalifa was treated more favourably than he was.  When we pointed this out to him it is fair to say that he did not pursue his allegation that the letter was a forgery any further.

42	In our judgment the Employment Tribunal demonstrate by their Extended Reasons, for example  by their reference in paragraph 14 of the Extended Reasons to Mr Ben Kalifa’s file, the incident on 24 February and the letter of 28 February that they had regard to the points made by Mr Tchoula.  The main ones are:

(1)	Mr Ben Kalifa had a disciplinary record, 
(2)	Mr Ben Kalifa had been found asleep,
(3)	Mr Ben Kalifa had the same contract terms, and
(4)	although he was removed from the South Bank University site Mr Ben Kalifa was permitted to carry on working elsewhere.

Accordingly, in our judgment his attacks on the bases that (i) the Employment Tribunal make incomplete findings of fact, or (ii) do not sufficiently explain why they reached their conclusion dismissing this allegation of racial discrimination made by Mr Tchoula, fail.

43	Additionally, in our judgment it cannot be said, having regard to their findings and reasons that the conclusion reached by the Employment Tribunal on this complaint was perverse.

44	Point C: Appointment of Mr Terry Harris as supervisor (an alleged act of direct discrimination)
The main findings of fact in respect of this are contained in paragraphs 9 to 11 of the Extended Reasons and the conclusions are set out in paragraph 39(1).  

45	In his oral submissions Mr Tchoula asserted that the Tribunal failed to make a finding that Mr Harris was a friend, and drinking companion, of Mr Dewane.  In our judgment this point has no real force because in paragraph 39(1) the Employment Tribunal recognise that this was Mr Tchoula’s case (see point (a) which must be referring to Mr Harris as the person appointed, and see also paragraph 39 (16)(ii) - in particular the fourth and sixth sentences thereof).  Mr Tchoula also alleged that the Employment Tribunal erred in law in failing to make findings as to a rumour which Mr Tchoula alleged was in existence before the appointment of Mr Harris that he would be appointed.  In our judgment, having regard to the nature of the allegation made and the findings of the Employment Tribunal there was no need for them (i) to deal further with the allegation that Mr Harris was a friend of Mr Dewane, or (ii) to deal with the rumour expressly in their Extended Reasons.  As they point out in paragraph 39(1): 

“There is no avoiding the express allegation that he [Mr Tchoula] makes, namely that the selection process was ‘rigged’.”

This allegation and its consideration by the Employment Tribunal encompasses Mr Tchoula’s points based on the alleged rumour and the allegation that Mr Harris was Mr Dewane’s friend and drinking companion.  In our judgment it also covers the point made in paragraph 1(c) of Mr Tchoula’s skeleton argument that the warning given to Mr Harris was fabricated for the purposes of the Employment Tribunal.  All of them are part and parcel of his case that the Respondent company was dishonest and the selection process was “rigged” which the Employment Tribunal deal with in their Extended Reasons and conclude in paragraph 39(1) that:

 “---- the interviewers genuinely selected Mr Harris on their appreciation of the respective merits of the candidates.”

46	Mr Tchoula also criticised the Employment Tribunal for refusing to reach a conclusion as to whether or not Mr Finapiri had written the list found at page 104 of our bundle.  Mr Tchoula says that if that list is compared with a letter written by Mr Finapiri (which is found at 103) it is clear that it is in Mr Finapiri’s handwriting.  We confess that although there are some similarities between the writing on the two documents, it is far from clear to us that they demonstrate that the list was written by Mr Finapiri.  Further, in our judgment, the points made by the Employment Tribunal in paragraph 11 of the Extended Reasons concerning this point are correct.

47	The Employment Tribunal in the Extended Reasons deal fully with the procedure adopted and the point scoring, albeit that Mr Tchoula does not agree with their findings as to these matters, they are findings of fact as to which no reasonably arguable point of law is raised by Mr Tchoula.

48	In respect of this complaint (as well as others) Mr Tchoula made a general point that the Respondent company said that they were employers who had an Equal Opportunities Policy.  As we understood it, his point was that this should have been accepted by the Employment Tribunal and should have led them to a conclusion that the Respondent company was not applying such a policy in his case and was therefore discriminating against Mr Tchoula.  We do not accept this point.  In paragraph 9 of the Extended Reasons the Employment Tribunal state:

“From the outset of Mr Dewane’s employment, he realised that the Respondent’s recruitment system needed to be changed.  The first occasion when a new procedure was used for a promotion was in April 1997, in connection with the post of Supervisor at Borough Road, one of the campus sites at SBU.  We would note that the Respondent purports to operate an equal opportunities policy.  This is set out in only the most general terms in the Introduction to their Employee Handbook:  R2, page 11.  ...”

This shows that the Employment Tribunal were of the view that the Respondent company only purported to operate an Equal Opportunities Policy, that they had not defined it accurately and that they were seeking to change their recruitment methods.  It follows, in our judgment, that the Employment Tribunal were correct to consider and assess what actually happened and it was not open to them to compare what happened in respect of the appointment of Mr Harris (and others) with an established procedure for recruitment applying an established Equal Opportunities Policy of the Respondent company.

49	Point D: Appointment of Mr Justin Jones as supervisor at Guy’s Hospital and the favourable treatment given to him during his employment (an act of direct discrimination)
The main findings of fact of the Employment Tribunal are contained in paragraphs 7 and 8 of the Extended Reasons and their conclusions are in paragraph 39(3).

50	Mr Tchoula says that the following finding of fact is wrong:

“He [Mr Jones] had also worked at the site in the past, for the contractor (Shield) that the Respondent had replaced.”

Mr Tchoula says that although Mr Jones worked for Shield he never worked at Guy’s Hospital.  Mr Tchoula did not point to any clear evidence to the effect that Mr Jones had not worked at Guy’s Hospital and the position is therefore again reached that the Employment Tribunal have made this finding of fact and that Mr Tchoula makes an assertion that it is wrong.   In our judgment this is not sufficient to found a reasonably arguable point on appeal on the basis that there was no evidence for this finding or otherwise.  

51	It is therefore not necessary for us to deal further with this point.  However in respect of it we note that in paragraph 39(3) of the Extended Reasons by accepting that the evidence given on behalf of the Respondent company was accurate the Employment Tribunal find that the Respondent company perceived “Mr Jones to be a competent employee who could usefully be appointed in a situation of some urgency” and go on to say that:

“An especially important factor is that Mr Jones worked for Shield and he therefore knew the client”.

This links with the finding in paragraph 8 of the Extended Reasons set out in paragraph 50 of this judgment albeit that it is a reference to knowledge of the client which could have been acquired without working at the site (Guy’s).  But, in any event, and notwithstanding the importance put on the point that Mr Jones worked for Shield and therefore knew the client we have concluded that if either, or both, of the findings that:
	(i)	Mr Jones had worked at Guy’s, and 
	(ii)	that because of this, or otherwise, he knew the client, 
are wrong they are not of such significance to the reasoning of the Employment Tribunal that such errors found a reasonably arguable point on this appeal on the basis that there was no evidence to support them, or otherwise.  In reaching this conclusion we have had particular regard to the following:
	(a)	the reference to the point that Mr Jones knew the client through working for Shield was only a part of the Employment Tribunal’s reasoning,
	(b)	it was common ground that Mr Jones had worked for Shield, 
	(c)	it is the belief and reasons of Mr Meirav (the person responsible for the appointment by the Respondent company) that is important rather than the fact whether Mr Jones did, or did not, work at Guy’s when working for Shield, and the Employment Tribunal make it clear that they accepted his evidence as to the qualities of Mr Jones and why he was appointed, and 
	(d)	in these circumstances to permit this appeal to proceed on this point would involve taking too rigorous an approach to the analysis and effect of the Extended Reasons.

52	Further Mr Tchoula asserts that the Extended Reasons are defective because they do not give reasons as to why Mr Meirav considered Mr Jones to have personal qualities that made him especially suitable for this position and in this context he says that he has personal qualities and intelligence.  

53	We agree that Mr Tchoula has personal qualities and intelligence, but we do not agree that there was a need for the Employment Tribunal to go further in the Extended Reasons to explain why they accepted Mr Meirav’s evidence that he considered Mr Jones to have personal qualities.  The reality of this is that they accepted Mr Meirav’s evidence and the fact that Mr Tchoula also has personal qualities does not alter Mr Meirav’s belief concerning Mr Jones.

54	Additionally, Mr Tchoula says that the Employment Tribunal did not deal with the point as to why, in respect of this appointment, the Respondent company did not adopt the approach it had done in another case where recent interviews of applicants had taken place when they simply appointed the next person down on the list.  However, in our judgment, the Extended Reasons indicate that the Employment Tribunal thought this was not done in this instance because Mr Jones was perceived to be a competent employee with appropriate characteristics and qualifications who could usefully be appointed in a situation of some urgency.  

55	So again, in respect of this point, although Mr Tchoula has arguments which could have led to the Employment Tribunal reaching a different conclusion, in our judgment they have made findings as to the important facts, explained why they have reached their conclusion and their conclusion cannot be said to be perverse.  

56	Point I: The Change in the criteria of the Chief Security Officer vacancy at Guy’s (an alleged act of victimisation)
The main findings of fact in respect of this allegation are contained in paragraph 22 of the Extended Reasons and the conclusion of the Employment Tribunal is in paragraph 39(18).  

57	Paragraph 18 of Annex A to the Extended Reasons shows that before the Employment Tribunal Mr Tchoula relied on this change in the criteria as one of direct or indirect discrimination and further, or alternatively, of victimisation.  Before us Mr Tchoula mentioned the allegation of indirect discrimination but in our judgment wisely did not seek to pursue it.  

58	The focus of his submissions before us on this claim was that it was an allegation of victimisation because he asserted that the change was simply to prevent him being appointed to the post because he had made claims in his IT1 against the Respondent company.

59	As to this head of appeal in our judgment what Mr Tchoula is seeking to do is to advance on appeal the points he made below and which have been dealt with by the Employment Tribunal.  Thus, for example, it is plain that the Employment Tribunal have considered his argument that the change was unreasonable (or, as he would say, ridiculous) and therefore that the motivation must have been to victimise or to racially discriminate against Mr Tchoula and they have, for the reasons they have given, rejected those assertions.

60	Point E: Failure to Answer the Questionnaire (discrimination should have been inferred)
The main findings of fact in respect of this issue are in paragraphs 15 and 36 of the Extended Reasons and the conclusion of the Employment Tribunal is also contained in paragraph 36.

61	As paragraph 36 makes clear this is a point concerning section 65 of the Race Relations Act 1976.

62	In respect of this point Mr Tchoula submitted to us that he did not receive the answers to the questionnaire until August or September and this point is not dealt with in the Extended Reasons.  We agree that it is not clear from the Extended Reasons when Mr Tchoula received the answers to the questionnaire and thus whether the Employment Tribunal focused on the date of their receipt by Mr Tchoula.

63	However, it is apparent from paragraph 36 of the Extended Reasons that this issue was complicated by the fact that:

(a)	the Respondent company wished to have a meeting with Mr Tchoula, which he told us took place on 24 July 1997, and

(b)	the Respondent company were advised that they were under no obligation to answer the questionnaire.

64	The timetable, as we understand it, on the basis of the assertions made by Mr Tchoula is that Mr Dewane and Mr Meirav had answered the questionnaire by early July, that the answers were not sent to Mr Tchoula before the meeting on 24 July 1997 but that they were sent to him some time thereafter in August or September.  Mr Tchoula was not precise about the date upon which he received the answers.  The Extended Reasons also make it clear that Mr Tchoula was informed by the advisers of the Respondent company that the Respondent company did not have to provide answers to the questionnaire.  

66	In these circumstances it is easy to see why, having regard to the terms of section 65, the Employment Tribunal were not prepared to draw the inference Mr Tchoula invited them to in reliance on that section.

67	It must also be remembered that section 65 only enables an Employment Tribunal to draw inferences and does not direct that they should do so.  Section 65 is therefore simply a factor in the consideration of the facts of a given case as to whether or not an inference (or inferences) should be drawn.  

68	Although we accept that Mr Tchoula has a point that the Extended Reasons do not deal with the question when he received the answers to the questionnaire, and in paragraph 36 some reliance is placed upon the timescale by the Employment Tribunal, we are satisfied that the failure of the Employment Tribunal to make specific reference to Mr Tchoula’s receipt of the answers to the questionnaire does not disclose a reasonably arguable point of law because:

(a)	the other circumstances raised in paragraph 36 provide clear indications which support a view that the inferences of discrimonatory conduct Mr Tchoula invited the Employment Tribunal to make should not be drawn, and

(b)	section 65 is only one of the factors to be taken into account in the consideration of what (if any) inferences should be drawn in respect of Mr Tchoula’s claims and, in our judgment, the Employment Tribunal have not erred in law and cannot be said to have reached perverse conclusions in respect of the individual claims made by Mr Tchoula because, in all the circumstances, they did not draw the inferences Mr Tchoula invited them to draw.

69	For completeness we record that we reject Mr Tchoula’s submission that the Employment Tribunal should have dealt with points arising under section 65 first and, as we understand his submission, have concluded at the outset that it should infer discrimination by reference to section 65 alone and therefore that it should have found discrimination in respect of each (or many) of Mr Tchoula’s claims.

70	Also, we reject Mr Tchoula’s written submission that the Employment Tribunal: 

“does not give reason why it thinks Ms Sara Bivens (and the two other senior managers) were not sheltering behind wrong advice”.

As to this, in our judgment there is no need for the Employment Tribunal to give any further reasons to satisfy their obligations in respect of their Extended Reasons.  What they have said makes it quite clear to the parties why they have won and lost.  Further, we reject Mr Tchoula’s oral submission (which was in conflict with his written submission) that the Employment Tribunal failed to make findings as to whether the other managers were, or were not, knowingly sheltering behind the wrong advice.  In our judgment (in line with Mr Tchoula’s written submission) it is clear that the Employment Tribunal’s conclusion that Ms Bivens was not knowingly sheltering behind the wrong advice covers all those concerned in the answering of the questionnaire on behalf of the Respondent company.

71	Points K. L and M and the Final General Point - the Tribunal failed to take an overview

72	In our judgment it is clear that the Tribunal considered the entire history of the allegations with care and there is no reasonably arguable point that the Employment Tribunal failed to take an overarching view of the various allegations made in this case, or what Mr Tchoula refers to as a “snowball effect”.  

73	Points K, L and M are based on the success of earlier points and in view of our conclusions in respect of those earlier points they do not arise as individual points

Miscellaneous

74	Mr Tchoula did not make points identified as points H or J.

75	It would have been open to us in this case not to deal with each of the points raised by Mr Tchoula individually.  We have done so in recognition of the care and quality of his submissions.  However in doing so we recognise that we have not dealt with each and every point made by Mr Tchoula but we hope that he will agree that we have identified the main arguments advanced by him before us.

Decision

76	In our judgment this appeal does not raise any points that are reasonably arguable and therefore it must be dismissed.