Appeal No.	 EAT/1181/00 & EAT/0748/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 July 2001

Before
THE HONOURABLE MR JUSTICE DOUGLAS BROWN
MISS N AMIN
MR P A L PARKER CBE

DR A ABEGAZE	APPELLANT

MID KENT COLLEGE OF HIGHER
AND FURTHER EDUCATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	
For the Respondent	MR I C DONALDSON
(Representative)
Mid Kent College of Higher & Further Education
Horstead Centre
Maidstone Road
Chatham
Kent MR5 9UQ	

MR JUSTICE DOUGLAS BROWN

1	Mr Abegaze has two appeals against two decision of Mr M Zuke, the Chairman of the Employment Tribunal at Ashford.  Both are Interlocutory Appeals.  One is in relation to a decision not to adjourn the Full Hearing of his complaint of racial discrimination.  That hearing date has now vacated and the hearing has been re-fixed for 3rd and 4th September 2001, so that appeal now has no point to it and that Interlocutory decision has been superseded.  All we will say is that when the appeal was still extant before the changed date there did not seem to us to be any error of law on the face of the decision not to allow the adjournment which was a matter that lay particularly within the discretion of the Chairman and there was no indication of the kind of error that would permit this Tribunal to interfere.

2	The second appeal relates to the refusal of the Chairman to order witness summonses to be issued.  In brief, the background is that Dr Abegaze applied to the Mid Kent College of Higher and Further Education in response to an advertisement in July 1999.  He was called for interview on 9th  September with three others, one British, one Ethiopian and one described as Persian.  It is the Respondent’s case, and it remains to be tested before the Employment Tribunal, that the purpose of the interview conducted by two academic staff members was to assess candidates for their ability to prepare and present material in a clear, concise, professional manner.  Two applicants failed and did not progress to the next stage of this selection process.  Dr Abegaze was one of those two.  The assessment was overseen by the personnel manager, Mr Donaldson.  Dr Abegaze now says that the process and those taking part in it racially discriminated against him.  He served a comprehensive questionnaire under the Act and in addition wanted to know more about the eventually successful applicant whom the Respondents refused at that stage to name.  He also wanted the principal and chief executive of the college to provide information about the college’s equal opportunity policy, being the only person, he said, who knew about this policy properly.  He also wanted information on a communication from Dr Abegaze himself to the college’s funding body.  To that end he asked that witness orders be issued, ordering the principal and the successful candidate to attend.  The Chairman refused in both cases and provided written reasons.  He had by now seen the Respondent’s witness statements and documents and formed the view that Mr Donaldson, as personnel officer, would give evidence about the policy and would be available for cross examination.  The principal’s evidence was not relevant and he added that the communication between Dr Abegaze and the funding body was already known to Dr Abegaze as he was a party to it.  

3	So far as the second application was concerned no witness order could be made against an unnamed witness.  Dr Abegaze had had an opportunity earlier in the proceedings to apply to the Tribunal for an order requiring the Respondents to provide that information.  Dr Abegaze has not been present but has sent in today written submissions, the first of which repeats the point he makes about the principal’s knowledge of the equal opportunities policy and he adds a further reason, as his complaint is also of victimisation and indirect discrimination, the principal has information as to the selection procedure which would be very important to prove his case.

4	We can see no error here in the decision of the Chairman of the Tribunal.  An appeal to this Court is on a point of law only and no error of law is suggested by Dr Abegaze.  He says the Chairman is wrong, and that is not sufficient.  An error of law arises where the Chairman has misdirected himself as to the law, misapplied it or misunderstood it; that is clearly not the case here.  A decision such as this can only be overturned if it is perverse and plainly wrong.  An appeal cannot be made out of such a case here.  The Chairman’s decision was, in our view, plainly right.  We should add that we have been now informed by Mr Donaldson that in fact the successful candidate is being called as a witness on behalf of the Respondents so that part of the appeal is otiose anyway.  Strictly, the principal’s evidence as to the equal opportunity policy is relevant to the decision and it might have been better if the Chairman had described the evidence as superfluous, however, that was clearly the Chairman’s view as can be seen from his reference in his decision to the potential evidence Mr Donaldson can give.  In all the circumstances this appeal against this Interlocutory order in respect of the witness orders is refused.