Appeal No. UKEAT/0833/04/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2005

 
Before
HIS HONOUR JUDGE J ALTMAN
MS V BRANNEY
MRS M V MCARTHUR

 

DR F DIAS	APPELLANT

 

 
PELIKON LTD	RESPONDENTS

 
Transcript of Proceedings
 
JUDGMENT
 
PRELIMINARY HEARING – EX PARTE

 

 

 

 

	APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondent	 	

SUMMARY

Substantive Appeal on Race Discrimination dismissed on preliminary hearing.  But allowed to go forward on costs because not clear ET took account of all factors especially circumstances of Appellant; having been dismissed without warning or consultation for redundancy, can be criticised that he searched in race discrimination for a reason.  Referred to at very end of preliminary hearing judgment, from paragraph 36 onwards.

HIS HONOUR JUDGE ALTMAN
 
1.	This is an appeal by the Applicant before the Employment Tribunal, Dr Dias, from the decision of that Tribunal on 27 July 2004 in which his claim of race discrimination was dismissed and Dr Dias was ordered to pay costs of £5,000.  It comes before us by way of Preliminary Hearing to determine if there are points of law properly capable of argument at a Full Hearing.
 
2.	Dr Dias has indicated that he does not intend to attend this hearing.  The Employment Tribunal decision was promulgated on 5 August 2004 and by a letter to the Employment Tribunal dated 19 August Dr Dias sought a review.  On 2 September 2004 the Employment Tribunal Chairman refused the application for a review.
 
3.	The Notice of Appeal before us states that the reasons are contained in that letter of 19 August which requested the review and also it is contended that the decision was against the evidence produced and that the law was incorrectly applied.  
 
4.	The Employment Tribunal proceeded on the evidence before it.  They found that Dr Dias was employed from 13 August 2001 until 9 August 2002 as a research manager, his main job being the development of new phosphors.  The Respondent said that the dismissal was for redundancy and Dr Dias said that it was because of racial discrimination.
 
5.	The Employment Tribunal made reference to the evidence they heard and the statements that that they had before them and there was a body of written material.  They adopted detailed chronological findings made in earlier decisions and found that Mr Powell became the managing director in August 2002 and that at that time there was a need to save the Company and they developed a strategic plan, the result of which was that the research manager was no longer required.  At the same time there was in fact an outstanding plan for Dr Dias to move from Wales to Cambridge.  He was due to start in September 2002 and to have extended leave from 9 August before that.  It was whilst anticipating that move that he received a phone call on 6 August informing him of his dismissal there and then.  The dismissal was confirmed subsequently in writing.
 
6.	It follows that his dismissal was without warning or consultation and was purported to be on the ground of redundancy.  Dr Dias says that the reason given for his dismissal was in fact changed from the telephone conversation in which it was his performance that was relied on to the letter where it was redundancy.  Dr Fryer for the employer says there was no change, it was always redundancy although he did refer to what he viewed as some shortfall in performance by Dr Dias in the telephone call.  This telephone call must have been a considerable shock to Dr Dias, working as he was in a responsible position with the Respondents and anticipating a well planned and arranged move to Cambridge so as to further that employment.  It would not surprise us if Dr Dias’ recollection of the conversation is not wholly accurate.
 
7.	The Employment Tribunal made a finding that he was informed in the telephone call of the redundancy.  The Employment Tribunal described what they termed as Dr Dias’ frustration at the turn of events.  We can well imagine that what happened was devastating for him.  In many redundancy cases the employee, dismissed without warning or consultation in circumstances where from his or her point of view he or she is performing the fact their job satisfactorily and fulfilling a job needed by the employer, often ends up in a state of having to try to work out for themselves why it was that they were dismissed.  Whether it is that that has led Dr Dias to conclude that it was racial discrimination we know not.  But we can well imagine his puzzlement and concern and his subsequent determination to try to analyse and get to the bottom of things in the way he has conducted himself in these proceedings.
 
8.	The Employment Tribunal considered one possible comparator, a white salesman and came to the conclusion that he received no different treatment based on race.  It is important to emphasise that facts are for the Employment Tribunal to decide and they often have to choose between competing sets of evidence presented by the parties.  It is not open to an Appellant to re-argue factual matters on appeal unless it can be shown that there was an error of law and at this stage an arguable error of law.  No appeal lies on the basis that the Employment Tribunal should have preferred the Applicant’s evidence unless they did so in a way that no reasonable Tribunal could have done.
 
9.	In considering the arguments raised on appeal we have considered the review letter submitted by the Applicant and the first matter he complains of is that he was not aware of material adduced at the hearing as he was not present.  Frequently, at hearings additional material becomes available that is presented to the Tribunal.  That is the inevitable consequence which, it seems to us, cannot be prevented in circumstances where one of the parties does not attend.
 
10.	The Applicant seeks to adduce further evidence was that not available at the time of the hearing, the effect that the Company was, about two years after the termination of Dr Dias’ employment, advertising for a research candidate.  Dr Dias saw this advertisement in the second week of August 2004.  This was a new post that was being created some two years after the termination of his employment.  In considering whether this is relevant evidence that should be admitted at this late stage we have concluded that it may be possible to say that as a matter of commercial judgment the Respondents should not have dismissed the Applicant because they two years later they were having to possibly rebuild part of his job.  However we are driven to the conclusion that we cannot see circumstances in which it could arguably make a difference to the conclusion of the Employment Tribunal.  The job description is not on the face of it, so much for a research function, although it involved technical aspects of work that the Applicant did.  It seems to us that the advertisement for that job is consistent with what Mr Fryer said in his statement at paragraph 25 as to of the current research that was then being done at the time of the hearing.
 
11.	It is true that the Applicant points, in his very careful analysis of the work he did, to aspects of the continuing work that he was well qualified to do.  But it was also pointed out by Mr Fryer that only a small part of his time was devoted to those aspects.  Mr Fryer said under the heading of quality control in paragraph 19, that quality issues took up between only ten to fifteen per cent of Dr Dias’s work.  Accordingly, we have come to the conclusion that this additional information coming so long after the dismissal could not even if admitted be said to arguably alter the assessment of a Tribunal as to the motivation for the dismissal at the time.
 
12.	The second matter that is raised by the Applicant is that he was not informed of the hearing date before the Employment Tribunal.  That is true.  It appears that the letter was sent to the wrong address but that should be linked to two other matters.  In ground 7 Dr Dias complains that the hearing took place in his absence.  That was because in his words he had tried to get the hearing on earlier before leaving the country.  That may be the case but when the Applicant was unable to attend as he was out of the country he has clearly signalled that he would not be attending in his letter of 3 May.  Once the hearing had not been set until he had left the country the clock could not be turned back, it seems to us, and it cannot be complained of that the Tribunal proceeded with the hearing knowing that he was not going to attend even though it was unfortunate that the hearing could not have been earlier.  
 
13.	The next matter was that that tribunal had material, but did not have a summary of evidence prepared on 22 July for the hearing that took place on the 27th.  Some months earlier in May, the Applicant had promised this summary and the complains that he did not know of the imminent hearing and that if he had, of course that material could have been before the Tribunal.  
 
14.	At page 33 is the letter he wrote summarising the material.  However, seems clear to us that the evidence there contained was essentially all material that had earlier been sent by him to the Tribunal.  The summary may have been of assistance to the Employment Tribunal but, it seems to us, it does not substantially affect the material that was before the Employment Tribunal.  That is we have referred to paragraphs 3, 4 and 6 of his letter.  
 
15.	I revert then to ground 2 in which complaint was made that he was not informed of the hearing date.  A mistake was made in the address for the Notice of Hearing.  In some circumstances where that is the reason why someone does not attend the hearing, this is a very good reason for a hearing to be reconvened.  But in this case the reason the Tribunal proceeded was because they had been specifically told that the Applicant was not going to be at the hearing.  Accordingly whilst the date of hearing was unfortunately not notified, it does not seem to us to have made any difference either in the fact that the case proceeded or that it proceeded in the absence of a summary, bearing in mind that the Employment Tribunal had all the other material.
 
16.	In the review letter, ground 5 complains that the Applicant did not have a full knowledge of the Respondent’s case because a letter sent to the Tribunal and referred to in correspondence between the Respondent and the Applicant was, he says, not sent to him.  It is true that a letter sent to the Applicant appears, on the face of it, to have referred to an enclosed copy letter sent to the Tribunal.  On the other hand the Tribunal have said that they have supplied the Applicant with all correspondence that they have received.  It seems to us, therefore, that there may have been some error of reference that the documentation that was before the Tribunal is documentation about which the Applicant had knowledge.  It is not conceivable to us that the Chairman and members were reading a letter that they had declined to disclose.  That does not seem to us to provide an arguable ground of appeal.
 
17.	In referring to the review letter it is important to emphasise that in considering the arguments he has raised this Tribunal has had an opportunity of reading all the enclosures and documents provided by the Applicant then and indeed subsequently 
 
18.	Grounds 6 and 7 I have already dealt with and ground 8 really is an aspiration in which the Applicant expected that the Employment Tribunal would clarify matters on his behalf in the interest of justice in view of his absence.  We have no reason to believe that that was not the case and there were no matters other than those specifically raised by the Applicant that we are aware of that would justify that general conclusion.
 
19.	In ground 9 the complaint is that the Employment Tribunal in effect gave more weight to the Respondents’ evidence, given orally, than the written statements and proof that Dr Dias supplied.  Of course, the Employment Tribunal clearly did prefer the evidence of the Respondents and the Applicant considers they came to the wrong conclusion.  But that really amounts to a desire to start the case over again.  It is an example of the whole Tribunal process which involves the weighing of evidence and the coming to decisions as to which evidence preferred.
 
20.	Again, in paragraph 10 the Applicant complained that Mr Fryer’s statement was accepted, but it was open to the Employment Tribunal to accept his evidence and to believe what he said.
 
21.	In relation to the appointment of Michael Powell referred to in paragraph 11, as being in August 2000, this has been challenged by the Applicant.  He is saying it was not in August 2002 but in October.  Again, there was competing evidence.  The statement of the Respondents’ witnesses was that Mr Powell was in place in August 2002, as Mr Fryer states, and it was open to the Tribunal to accept that evidence.
 
22.	In paragraph 12 the Applicant returns to the issue of the comparator that was put forward and he deals with a number of incidents about it and points out his own shock on hearing about the termination of his employment simply because, as he said, it was unexpected.  He draws one or two distinctions between the way he was treated and the way the comparator was treated.  However, he goes on to say:
“I am certain that there is no relationship between sales and research.  Research is mandatory for any company and sales depends on the type of product sold in the market.”
 
Essentially, the Applicant is complaining that the decision that research should be stopped was a wrong decision.  That was a matter for the Respondents and the Applicant disagrees with their management decision.  He also complains that there was a need for phosphors and a need to develop it.  But the judgments of management entitle them to make a decision which may be unwise and may with hindsight be wrong.  That it is the decision which they took, so the Tribunal found.  In view of the differences between research and sales, the applicant was bound to be given a different explanation.  It seems to us that the Employment Tribunal cannot be said to have been wrong in law in not identifying that as less favourable treatment of Dr Dias.  He also suggests that the verbal reasons for termination were contradicted by the reasons given in the letter to him.  However, there was evidence from the Company that that was not so and again the Employment Tribunal were entitled to accept that evidence.
 
23.	In paragraphs 14, 15, 16, 17, 18, 19 and 20 the Applicant goes into some detail about the nature of his work.  Broadly, he says that his work was broader in its scope than the Respondents’ analysis of it, so that he could have remained even if with a modified job description or in a demoted position.  This argument is based upon the proposition that a company needs research and needs quality control work.  Here, in effect, the Applicant is challenging the evidence that was put forward by the Respondents before the Employment Tribunal.  Again in, relation to all those matters the Employment Tribunal was entitled to prefer the evidence of the Respondents.  In those paragraphs the Applicant is seeking to re-argue the case.  He is not demonstrating an error of law, for the findings of the Tribunal in relation to work, were supported by the evidence.
 
24.	Turning to the actual decision, the Employment Tribunal deal in paragraphs 6-10 with the findings that they make on the evidence before them.  They accepted in paragraph 7 the point by Mr Powell that the Applicant’s job title was of little significance, and they made the findings that he was clearly engaged in the research role and that the decision to terminate was based upon the decision of the strategic planning meeting that the research function would no longer be maintained in the way in which or to the extent for which it was being performed by the Applicant.  The tribunal accepted in paragraph 8 of their Decision Mr Powell’s evidence that to continue would have been counter productive to the future economic well-being of the Respondents.  That seems to us to simply exemplify the proposition that they preferred the evidence of the Respondents.
 
25.	In paragraph 21 the Applicant takes issue with the reference of the Respondents to the performance by him of his work.  He says there was no performance issue of any kind on record and that he was clearly working to his full capacity.  This caused us a little concern, bearing in mind that when he was told of his dismissal on the telephone management drew to his attention what they believed to be short comings in his work performance.  However, the Employment Tribunal came to the conclusion that it was the redundancy of his post that was the reason for dismissal and on the evidence, even accepting that of the Respondents, they were entitled to come to that conclusion.  There is no argument in law that it was contrary to any finding they could reasonably have reached.
 
26.	That leads us to paragraph 37 in this context because in that paragraph the Applicant points out that a reference was written by Mr Griffiths which was a favourable reference.  Again, this was dealt with in evidence and Mr Griffiths explained that that was a general reference in effect drafted by the Applicant himself and signed by Mr Griffiths so as to help.  It may be that the employer had not disclosed his full opinion of an employee.  However, it was material before the Tribunal and material upon which formed part of the background and which could be prayed in aid in arguing the case before the Tribunal.  However it does not constitute an arguable ground in law capable of argument here.
 
27.	Returning to paragraph 22, the Applicant raises an issue as to the way in which his new contract was sent to him.  He says it was not sent by e-mail as the Company says, and he actually signed the contract in June 2002.  It does not seem to us that that is an issue which goes to the heart of this case or affects the general proper approach of the Tribunal.
 
28.	In paragraphs 23, 24, 25 and 26 the Applicant raises the issue that the strategy for the future of the Company was already decided.  He says that there was no strategy meeting and that the employer’s reason for the termination of his employment has been fabricated.  He says in effect that this was just an excuse for his dismissal which was really on racial grounds.  That was a challenge to the evidence of the Respondents which the Tribunal had to consider on the material before them.  They accepted the genuineness of the Respondents’ evidence as to the reason given.  It seems to us inevitable that we must conclude that there was evidence before the Tribunal which entitled them to reach that conclusion and their failure to decide it was fabricated does not constitute an error of law.
 
29.	Paragraphs 27 and 28 refer to the comparator position in which the Applicant asserts that he was treated unfavourably because he was the only Indian and that this implies a racial treatment.  It may, and no doubt does, raise the issue as to whether he was being singled out as an Indian.  However the Employment Tribunal in analysing the reason for dismissal said it was because of the redundancy of the work he was engaged upon.  In those circumstances they effectively considered but rejected that allegation.  That is a conclusion they were entitled on the evidence to reach.  The manner of dismissal as referred in paragraph 28, it seems to us, was tailored to the Applicant’s situation.  The Respondents quite candidly admitted that the length of time he had been with them and the approach of the end of his first year, dictated the way they dealt with the matter.  Those do not contain racial elements.  However disappointing it is to read that those were actual reasons they do not seem to us prevent the Tribunal concluding that they did not lend a racial element to the conduct of the employers.
 
30.	As to paragraphs 29, 30 and 31 there is reference to the fact that the hearing at which the Applicant was not present admitted fresh statements.  Two things emerged from that.  First of all, the Employment Tribunal of course has a discretion to do that although one would hope that if something fundamentally different was raised which a party because of their absence has not had an opportunity to deal with, the matter would be ignored or the proceedings adjourned to give an opportunity for that to be considered.  But the fact that one party has not attended a hearing is not a bar.  There is no legal principle that prevents a Tribunal from proceeding or considering some additional material that is presented.
 
31.	However, it does not appear to us that the situation was quite as bad as the Applicant understandably feels.  In paragraph 3 of the Respondents’ answer to this appeal, under the heading of the Respondents’ evidence, it says that the Respondents did not submit revised statements or bundles before the hearing of 27 July and that all the Court had before it was the same as has had been before the Tribunal for the Preliminary Hearing in April 2003.  The only new evidence was a statement from Mr Powell which dealt with the allegations, raised by Dr Dias, that Mr Powell had not been the person who took the decision to make the Appellant redundant.  That being an issue raised by the Applicant, it seems to us that the Tribunal could not be said to have fallen into error by seeking to find out what the other side said about it.  Whilst we understand the feeling of the Applicant that matters have gone on behind his back simply because he was not at the hearing, close examination reveals that that appears not to have been the case.
 
32.	Paragraph 32 is in some five lines a fairly succinct summary of the issues that the Tribunal had to determine, and which they did, contrary to the Applicant’s case.  It would simply be a re-hearing of the whole case to allow that to be the basis once again for considering the case.  The Applicant relied on Mr Fryer’s unfavourable treatment and his termination decision as supportive of the allegation of race discrimination and the assertion that there was no possible comparator and that no white employee was treated in that way.  That is a rehearsal of the fundamental issues before the Tribunal, and does not provide an arguable ground of appeal.
 
33.	Paragraph 33, insofar as it was not canvassed before the Employment Tribunal, raises a new claim of victimisation.  If it was to be have been dealt with it should have been addressed as such.  It seems to us it cannot properly be raised at this stage. Insofar as it was a gloss or an interpretation of material before the Tribunal already, we must conclude that it formed part and parcel of their general approach to the evidence, even though they were not asked to deal with it as a wholly separate matter.
 
34.	Paragraph 34 is another instance of the principle that we have already set out that the Tribunal have to deal with the evidence before it and this ground is really a continuation of the concern of the Applicant that the Tribunal had more information before it than he had had an opportunity of dealing.  We have already analysed this aspect.
 
35.	Paragraph 35 seeks to re-open the matter in which the Applicant deals with a failure to pay him his consultancy bill which has been dealt with separately, which he would wish to re-open again.  Again, that is an attempt to re-open the challenge to the reliability of evidence which was within the Employment Tribunal’s discretion to decide about.
 
36.	Paragraph 36 is really a complaint about earlier proceedings in June 2003.  They were aborted because the Tribunal did not know that there had been a request for review of the hearing before that in April.  He complains about the bundle that was prepared for the hearing and review requests.  But it does not seem to us that that really advances the arguments or raises new grounds of appeal at all.
 
37.	Paragraph 38 is a summary in four sections of the grounds of complaint at the time and his complaints now as he would wish to summarise them.  It seems to us, that to accede to an appeal on those grounds would simply be to give leave for a re-hearing of a case and for raising of arguments that could and largely were before the Tribunal at the time.
 
38.	Finally, in paragraph 39 the Applicant turns to the issue of costs and that is an appeal with which we have some sympathy.  On the one hand, we note that a warning as to costs had been given at an earlier hearing but on the other hand, the Applicant has complaints about the way in which that hearing came about and the way in which judgment was then reached.  In their decision on the issue of costs, the Chairman dealt with a number of matters that were raised and complained about 
“the responsibility of the Applicant for lengthy and perhaps a tortuous history of the proceedings which has led to costs on the part of the Respondents which is in no small part the Applicant’s responsibility.”
 
The Employment Tribunal refer to the Applicant’s persisting in allegations and the hearing of June 2003 as examples of this and they conclude that some responsibility must lie with the Applicant.
 
39.	It seems to us that this is a matter that should be dealt with at a Full Hearing of the appeal.  The extent to which costs should form part of the Tribunal Order is very much a matter of discretion.  But it seems to us on reading the analysis of costs in that judgment that it is arguable that the Employment Tribunal did not, and may be could not, have before it all the factors.  We wonder why the Applicant was so wide-reaching in his approach to proceedings.  He himself was clearly upset by the dismissal and felt that he did not understand the reason for his dismissal.  It was very sudden and his dismissal was accompanied by no explanation which he understood.  It seems to us that it would be proper for that issue to be considered by the full Employment Appeal Tribunal.
 
40.	We therefore make the following Order that paragraph 39 of the grounds of appeal as set out in the letter from the Applicant which accompanied this original review application will go forward to a Full Hearing.  The other grounds will be dismissed for the reasons we have given at this stage as disclosing no arguable point of law.  I am referring to the letter of 19 August 2004.  We give the following directions.  The Appeal will be listed in Group C for a period of one hour and we give leave, should the Respondents so judge it appropriate, for them to be relieved from attending and for their submissions on the appeal to be put in writing.  We are aware that the Appellant is now resident in India.  It may well be that the loss of his employment with the Respondents prevented his returning to this country or getting leave to return. after he had been in India for a period.  The appeal can be dealt with on paper should the Respondents conclude that they wish the matter to proceed.