Appeal No.	 EAT/914/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 November 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE

MR M ERHAYIEM	APPELLANT

JON WALTON ASSOCIATES & OTHERS	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M ERHAYIEM IN PERSON

	JUDGE PETER CLARK:		The Appellant Mr Erhayiem is a qualified engineer of Iraqi National origin.  The first Respondent is a firm of consulting engineers whose partner’s include Jon Walton, second Respondent and Stuart Walton, third Respondent, his son. 

2.	On 16th September 1998, the Appellant attended a job interview at the first Respondent arranged by Manchester TEC.  He was interviewed principally by Stuart Walton although Jon Walton was present during part of the interview and contributed to the discussion.  

3.	In the event the Appellant was not offered a position with the firm.  Indeed, the need for further staff appears to have evaporated and nobody was offered a job.  

4.	Following his rejection for employment the Appellant presented a complaint of unlawful racial discrimination against the three Respondents before the Manchester Employment Tribunal on the 14th December 1998.  At a hearing held at Manchester on 12th to 13th April 1999, the issues in the case where identified as follows:-

(a)	had the first Respondent discriminated against the Appellant in respect of the arrangements that they conducted when they interviewed him on 16th September, in particular, were the questions asked of the Appellant on that occasion in relation first to the Iraqi political regime and secondly, in relation to Park Lane Properties, a client of the Respondent’s, questions that amounted to discrimination.
(b)	Were the Respondents guilty of race discrimination when, following that interview, they indicated to the Appellant that they were not going to offer him employment with the first Respondent.

5.	Having made certain findings of facts set out at paragraph 5 of their extended reasons promulgated with the decision dated 21st May 1999, the Tribunal reached the following conclusions:-

(1)	the Respondents had discriminated against the Appellant contrary to sections 1(1)(a) and 4(1)(a) of the Race Relations Act 1976 in one respect only.   Namely, they questioned him as to his attitude to the Iraqi regime.  That they found was less favourable treatment on racial ground.  But for his race, he would not have been asked those questions. 
(2)	The remaining heads of complain were dismissed, in particular the Tribunal held 
(a)	that the Respondent’s were entitled to question the Appellant about their client Park Lane Properties, a business owned by Iraqi’s and
(b)	he was not less favourably treated in the fact that he was not offered a job, first because the Respondent’s were entitled to and did find his performance in interview and his previous employment history unsatisfactory and secondly because nobody was offered a job thus no comparison could be made with a person of different race or nationality who was more favourably treated that the Appellant.
(3)	As to remedy, the Tribunal correctly directed themselves in accordance with section 56 of the Act.  It was for the Tribunal to decide whether it was just and equitable to award any, and if so which of the remedies there set out; a declaration, an order for compensation and/or a recommendation.  They concluded that it would be just and equitable to make a declaration of unlawful discrimination only in respect of their finding at (1) above.  It was not a case for awarding compensation or making any recommendation under 56(1)(c).  
6.	Following promulgation of the substantive decision, the Appellant applied for a review by letter dated the 8th June 1999.  That application was dismissed by decision of the Chairman, Mr C J Chapman contained in a letter dated 16th June.  In his reasons for that decision promulgated on the 30th June, the Chairman indicated his view that application was an invitation by the Appellant to the employment tribunal to redraft their findings of fact.  That was not the purpose of the review procedure, nor the correction procedure under rule 10(9).  

7.	Dissatisfied with the Tribunal’s substantive decision, the Appellant also lodged a notice of Appeal to the Employment Appeal Tribunal dated 1st  July 1999.  In support of that Appeal he repeated his grounds for application for review by the Employment Tribunal by letter to the Registrar dated 4th August 1999.  Further, with his completed PhD form dated 27th August he served notice of additional grounds of appeal challenging the Tribunal’s finding that the Respondent’s were entitled to conclude that he did not possess the necessary qualities and experience for any proposed job and that he had not performed well in interview.  This is a preliminary hearing held to determine whether this appeal raises any arguable point or points of law to go forward to a full inter partes hearing.  With the express consent of the Appellant we are constituted as a two member court.  

8.	In support of the Appeal Mr Erhayiem has submitted that the Respondent put forward no evidence to support the Tribunal’s finding as to his lack of professional abilities and submitted that the Tribunal were aware of his formal qualifications as indeed appears from paragraph 5(a) of their reasons.  He submits there was no basis for the Tribunal to conclude that he was lacking in the qualities or experience necessary to perform work for the Respondents or that he performed less than satisfactorily in interviews.    

We have listed carefully to all that has been said by Mr Erhayiem and we have come to the firm conclusion that, just as with his application for review to the Employment Tribunal, his complaint before us raises questions of fact only.  There is no point of law raised in this Appeal and consequently it must be dismissed.