Appeal No. UKEATPA/0018/05/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 May 2005

Before
THE HONOURABLE MR JUSTICE RIMER
(SITTING ALONE)

MR G H ZAKERI DEHVASATI 	APPELLANT

FLINTSHIRE COUNTY COUNCIL 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION

	APPEARANCES

For the Appellant	No appearance by or on behalf of the Appellant 	

SUMMARY

Race Discrimination

The issue was whether the Notice of Appeal disclosed reasonable grounds of appeal.

THE HONOURABLE MR JUSTICE RIMER

1.	On 30 November 2004, an employment tribunal sitting at Shrewsbury, chaired by Mr S J Williams, promulgated their reasons for their dismissal of the claim by Mr Zakeri Dehvasati that the respondent, Flintshire County Council, had discriminated against him on racial grounds.  

2.	The tribunal’s reasons are succinct and clear. They explained that Flintshire had advertised the position of a graduate engineer with the closing date for applications as 27 May 2003.  Six applications were received.  One was a white candidate and five were from ethnic minority candidates.  The five included the claimant, who is of Iranian origin, and also applicants from Sri Lanka, China, Pakistan and India.  Flintshire short-listed three of them for interview, that is the claimant, the Sri Lankan and the Pakistani.  The interviews were to be held on 23 June 2003 when only the claimant and the Sri Lankan attended.  The Pakistani did not attend.  

3.	There were three panel members on the interviewing panel.  They all gave evidence to the tribunal.  The score sheets for the two interviewees were in evidence.  The claimant scored an average of 8.8 points out of a maximum of 30 and the Sri Lankan an average of 9.  Flintshire considered that neither candidate justified appointment to the post and so no appointment was made.  The position was not filled.  Instead, Flintshire transferred a technician from another department and its evidence was that it would depend on its funding and work load as to whether the position would be filled in the future. 

4.	The claimant requested a written feedback, whereas Flintshire’s policy was only to provide oral feedbacks.  Mr Nadarajah, one of the interviewers, told the tribunal, that in line with that policy, he refused to provide a written feedback and that the claimant did not ask him for an oral one.  The tribunal accepted that evidence.  

5.	The claimant served a Race Relations Questionnaire on Flintshire on 26 November 2003.  Flintshire replied by an undated and unsigned document which the tribunal were told should have been dated 24 February 2004.  The tribunal rejected the claimant’s suggestion that Flintshire was thereby intending to mislead the tribunal.  Whilst the tribunal noted that a period of three months to serve the reply was longer than is common, one question required the carrying out of some research before it could be answered.  The tribunal’s conclusion was that, overall, the period of three months was not unreasonable and they did not feel it appropriate to draw any inference in this regard that was adverse to Flintshire. 

6.	The tribunal directed themselves to the law, in particular that if the claimant proved facts from which they could conclude, in the absence of explanation, that Flintshire had discriminated against him, then they must uphold his complaint unless Flintshire proved that it did not discriminate.  The claimant’s case was apparently that the whole interview process was a sham and that Flintshire had decided in advance not to appoint either of the interviewees because it had already decided to appoint the Pakistani applicant to the post.  The tribunal rejected this, saying that there was no evidence on which they could base any different finding, not least, presumably, because the Pakistani applicant was not in fact appointed to the post.  The claimant also made a late assertion that Flintshire’s witnesses had colluded in their evidence, complaining that they should have remained outside the tribunal room while the others were giving their evidence.  The tribunal said that the claimant had not made any application to this effect at the outset and that, if he had done so, there would have been no basis for acceding to it.  Flintshire’s evidence was that the principal reason why the applicant scored low was that he could not demonstrate the necessary experience.  The tribunal gave full reasons in paragraph 4 as to why they concluded that the claim had no foundation to it.  Those were findings of fact based on the evidence they heard and taking into account the hypothetical comparator of a white candidate who did not differ in any other material circumstance from the claimant.  

7.	The scheme of the Employment Tribunals Act 1996 is that the employment tribunal is intended to be the final arbiter on matters of fact and appeals to this appeal tribunal lie only on alleged errors of law by the employment tribunal.  On the face of it, the tribunal’s reasons appear to be unimpeachable ones.  It was for them to find the facts and they did so and they do not appear to have made any arguable errors of law en route to their dismissal of the claimant’s claim.  

8.	The claimant does not accept that, however, and on 5 January 2005 he submitted a notice of appeal to this tribunal.  He there repeated the assertion that the Pakistani candidate had been targeted by Flintshire from the start and that the interviewing of the two candidates was a sham.  That was also his case before the tribunal but the tribunal, as I have said, rejected it on the facts.  The claimant further claims that he was the best candidate and so should have been offered the job.  Even if that is factually correct, a matter that the tribunal does not in terms deal with, it does not meet the tribunal’s finding that the reason that no appointment was made was because Flintshire regarded none of the applicants, the claimant included, as suitable for the appointment.  The claimant says that his rights, and also his children’s human rights, have been violated.  With respect, his children’s rights do not come into the matter.  As for his own rights, the tribunal’s findings were that they had not been violated since there was no discrimination against him.  He of course had no right to be given the post. 

9.	The notice of appeal then levels criticism against Flintshire and the tribunal generally.  The claimant re-opens the complaint, rejected by the tribunal, of the late service of the answers to the questionnaire.  He accuses the tribunal of bias, perversity and the wrongful exercise of its discretion.  He advances what appears to be an unfounded assertion that between the hearing on 10 September and the consideration by the tribunal of the matter in chambers on 12 November 2004 (in part to consider the parties’ closing submissions, which had been submitted in writing following the hearing in September) the tribunal colluded with Ms Nowell, counsel for Flintshire as to how and on what basis they might dismiss the claim.  That is a most serious allegation of a nature which ought only to be advanced if there is the most solid evidence to support it.  There appears to be no evidence at all supporting it.  

10.	It is no surprise that Burton J, the President, concluded that the notice of appeal identified no arguable error of law and so disclosed no reasonable grounds of appeal.  On 21 February 2005, the Registrar of this tribunal informed the claimant of that and that pursuant to Rule 3(7) of the Employment Appeal Tribunal Rules 1993 as amended, no further action would be taken on his appeal.  

11.	It is equally no surprise that the claimant does not agree with that and, by a letter of 3 March 2005, he again raised his assertions of perversity, bias and an allegedly wrong exercise of discretion by the tribunal.  This tribunal has accordingly allowed the claimant to exercise his right to have the validity of his notice of appeal reconsidered by a judge under Rule 3(10) and the matter now comes before me for that purpose this morning.

12.	In the meantime, on 21 March, the claimant asked this tribunal to arrange that the hearing should be by way of a telephone conference in order that he might represent himself effectively.  He lives in Aberdeen and says he cannot afford to spend the money in coming to London for a one hour hearing.  He emphasised his right to address oral arguments in support of his appeal.  He has produced a letter from an Aberdeen doctor, Dr Mary Condon, albeit one dated as long ago as 9 August 2004, to the effect that he has been suffering from a stress related anxiety disorder over a number of years and that the thought of travelling to London in connection with his appeal has been aggravating his anxiety disorder.  I comment, since it is relevant, that Dr Condon specifically does not suggest, that as at August 2004, the claimant’s anxiety disorder prevented him from appearing in person before a tribunal.  What the doctor, in fact, suggested was that it would be
“beneficial to his mental health problems if the Appeal could be arranged in the Edinburgh area, which is much more familiar to him.  I would be grateful if this option would be considered”.

13.	I confess it is not clear to me to what appeal Dr Condon was referring: the hearing before the employment tribunal did not take place until September 2004.  I also refer to a yet earlier medical report that the claimant has produced, one from Dr Cosgrove dated 7 June 2004.  That said that the claimant’s anxiety disorder was aggravated by the thought of having to travel to an employment tribunal in Glasgow and that it would be 
“beneficial to his mental health problems if the Tribunal could be arranged in the Aberdeen area.  I would be grateful if this option could be considered”.
Again, the evidence then was not that the claimant’s anxiety disorder prevented him from attending a hearing.  He simply did not want to travel far.  In the event, he was able to travel to Shrewsbury for the tribunal hearing in September 2004 and there is no more recent medical evidence as to any incapacity on his part to travel or to attend tribunals in person.  

14.	The claimant’s request for a telephone hearing of his Rule 3(10) application was refused by the Deputy Registrar of this appeal tribunal on 18 April.  The claimant protested about that by letter dated 19 April, asserting that justice demanded that he should be entitled to such a hearing and of course he invokes Article 6.1 of the Convention in support, although he perhaps overlooks that a telephone hearing would not, in the ordinary course, amount to the public hearing which that article in principle entitles him to.  In that letter, the claimant also relies on paragraph 17.2 of the Practice Direction (Employment Appeal Tribunal Procedure) 2004.  That provides as follows:
“17.2	Video and Telephone Hearings
		Facilities can be arranged for the purpose of holding short PHs or short Appointments for Directions by video or telephone link, upon the application (in writing) of an appellant or a respondent who, or whose representative, has a relevant disability (supported by appropriate medical evidence).  Such facilities will only be made available for a hearing at which the party or, if more than one party will take part, both or all parties is or are legally represented.  An application that a hearing should be so held will be determined by a judge or the Registrar, and must be made well in advance of the date intended for the hearing  so that arrangements may be made.  So far as concerns video conferencing facilities, they may not always be available, dependent on the location of the parties: as for telephone hearings or, especially, telephone conferencing facilities, consideration may need to be given as to payment by a party or parties of any additional expenditure resulting”.

15.	The claimant asserts that that applies to his case, but it does not appear to me that it does  because (a) he is not legally represented and (b) there is no medical evidence that he has any relevant disability preventing his attendance in person.  He asserts in his letter of 19 April that he is suffering from “long term stress” but self-certification of that sort is not what the Practice Direction means by “appropriate medical evidence”.  Neither of the doctor’s letters of June and August 2004 supports the claim that he is suffering from any relevant disability either.  The Deputy Registrar repeated the refusal of a telephone hearing on 20 April.  

16.	My reading of the papers and of the claimant’s long letters in support of his case has led me to the, emphatically provisional, view that, contrary to his protestations, the claimant has probably failed to identify any arguable error of law on the part of the employment tribunal.  He simply wants to re-open the facts which have been found against him.  This appeal tribunal cannot and does not hear appeals on that basis.  The claimant of course asserts perversity and bias on the part of the employment tribunal.  Those are assertions which, if they could be seen to be arguable, would amount to an arguable error of law, although nothing that I have seen suggests that there is any arguable basis for such assertions.  

17.	I nevertheless remain concerned, however that to confirm Burton J’s decision to the effect that this appeal discloses no reasonable grounds of appeal without first having the benefit of such oral arguments in support of his case as the claimant wishes and is able to advance would be to visit a potential injustice upon the claimant.  The advantage of an oral argument is that it can sometimes bring to life a point which might otherwise appear to be without substance, and in his long letter of 30 March 2005 the claimant advanced a number of specific complaints about the tribunal’s handling of his case which, for my part, I do not fully understand and which would benefit from oral explanation supported by reference to such documents as the claimant has that he says supports the points there made.  I do not, however, agree with the claimant that a telephone hearing with a judge is an appropriate manner in which to allow him to make his submissions, although a hearing by video link probably would be.  However, that will cost money to set up and the claimant would no doubt find that as much beyond his means as is a journey to London.

18.	The doctor’s letter of 9 August 2004 asked if
“the appeal could be arranged in the Edinburgh area which is much more familiar to him” 
and asked for that option to be considered.  I have considered that option and have come to the conclusion that the fairest way to dispose of this application is to transfer the hearing of it to Edinburgh so that the claimant can make his representations in support of his appeal there, where he will be able to appear in person.  There is no evidence before me that he cannot afford to travel to Edinburgh or that his anxiety disorder would prevent him from doing so.  I have found no express guidance to the effect that so to transfer the hearing to Edinburgh is an option properly open to this appeal tribunal in London, but the jurisdiction of the employment appeal tribunal extends to Great Britain and section 20(2) of the Employment Tribunals Act 1996 provides that the appeal tribunal may sit at any time and at any place in Great Britain.  I cannot, therefore, see why I cannot transfer this Rule 3(10) hearing to the employment tribunal in Edinburgh so that it may be dealt with and disposed of there.  I will accordingly so transfer it.  I should make it clear that I am only so transferring the hearing of this application.  The appeal has been presented here in London and if the decision in Edinburgh is that the claimant is allowed to process his appeal to a preliminary or to a full hearing of this appeal tribunal, then the further prosecution of the appeal will be in London.  It would, however, then be open to the claimant to ask for the whole appeal to be transferred to Edinburgh, although that would be an application on which the respondent might well have views and on which it would be entitled to be heard.  I make clear, for the avoidance of doubt, that there is no question of the claimant being entitled to have the appeal transferred to Edinburgh.  

19.	I will, therefore, adjourn this application to be heard by the employment appeal tribunal in Edinburgh.  The basic forum of this appeal will, however, remain in London.  I will direct the production of a transcript of my judgment.