Ali v Avesta Sheffield Ltd [1997] UKEAT 562_97_1711

EAT

Ali v Avesta Sheffield Ltd

[1997] UKEAT 562_97_1711 · 1997-11-17

MR JUSTICE LINDSAY : On 11 February 1997 the Industrial Tribunal promulgated its decision in the matter of A. Ali against Avesta Sheffield Ltd. The hearing had been spread over four days and the decision of the Industrial Tribunal, sitting under the chairmanship of Mr Williams, was unanimous and was that the Respondent, Avesta Sheffield Ltd, did not discriminate against the Applicant on the grounds of race and therefore the application was dismissed.

It is necessary briefly to look at the history of the matter. On 20 February 1996 Mr Ali completed an IT1 Originating Application alleging racial discrimination against Avesta Sheffield Ltd. The Industrial Tribunal at the hearing took what they acknowledged to be an unusual course and that was that at the end of Mr Ali's case, on the third day of the hearing, the employee's representative submitted there and then that there was no case to answer.

The Industrial Tribunal gave itself directions on this subject and looking at paragraph 17 of their Extended Reasons:

"In discrimination cases the burden of proof rests throughout upon an applicant who has to make out his or her case. This needs to be done on the balance of probabilities. Discrimination is, as Mr Ali points out, a very difficult thing to establish. Few people are prepared to admit that they have discriminated against anyone and many who may be witness to acts of discrimination are often reluctant to come forward for any number of reasons. There is no need to prove any intent or malice. It is enough that discrimination takes place whether intended or not. If an applicant with or without witnesses sets out facts or raises presumptions from which, in the absence of any reasonable explanation, it would be reasonable to infer that discrimination has likely taken place then an applicant will succeed. If facts, sufficient to raise any sort of presumption, are raised which indicate that there may have been discrimination then, at the very least, a tribunal will want to hear from the other side and hear what, if any, explanations they may have to offer. Where the facts hint at discrimination then, in those cases the respondent needs to explain away matters and questions raised. Indeed, in such cases, and in the absence of a reasonable explanation, we as a tribunal would be prepared to take a robust line in favour of an applicant. Inferences to be drawn from the facts in a case include inferences it is just and equitable to draw from evasive or equivocal answers given in replies to questionnaires sent out under the provisions of the Sex Discrimination Act 1975. In this case the company sent out a most comprehensive set of replies, generally speaking not inconsistent with the applicant's own testimony."

That approach, which I have indicated that the Industrial Tribunal took, cannot, in our view, be faulted. After setting out the facts, as they found them to be, they held this, at paragraph 19:

"Nothing has been said in support of his [Mr Ali's] case which would make it in any way reasonable for us to draw any inference of racial discrimination on the part of the respondent. There is in our view nothing for the respondent to explain. It is evident from the applicant's own evidence and from the documentary evidence which he acknowledges he received and understood that he was treated appropriately and on merit without regard to his race, colour, creed or ethnic origin."

Although the Industrial Tribunal ruled against Mr Ali on a time point they nevertheless looked at the whole of his history of employment. They said this in paragraph 20:

"Our view is this. Mr Ali, we find, acknowledged on 16 June 1995 that he had suffered no discrimination prior to that date and to that extent we rule out any incident before that time. We have though, as can be seen, looked at the whole history of Mr Ali's employment and have come to the conclusion that his claim is without foundation and devoid of merit."

And they concluded:

"We see no merit in the applicant's case and dismiss it."

Mr Ali has appeared before us this morning. He has addressed us only briefly and we have read the letter and the papers that he sent with his Notice of Appeal. His complaint seems to us to be divisible into five different headings so far as they relate to matters that are not too fanciful or too utterly groundless to entertain.

First he says that he has evidence, which was not presented to the Industrial Tribunal. But his case took over three days to present, including his cross-examination. There is no suggestion that there is now evidence available which could not have been presented at the hearing, had diligent searches been made. It is wrong, in the circumstances, to attach any weight to the existence, if such were proved, of further evidence.

Secondly, in his Notice of Appeal, he speaks about some documents having disappeared. But the Industrial Tribunal mentions no difficulty that it had in coming to its conclusions for want of documents, nor does it mention any disappearance and this complaint is so totally unspecific that it is not a matter to which we can attach any weight.

Thirdly, he says that the company's own internal procedures had not been followed. In fact, the Industrial Tribunal held, in paragraph 20:

"The management of the respondent company should in our view be commended for the manner in which they sought to deal with Mr Ali and his accusations."

So, in point of fact, that complaint seems to fail but, in any event, the fact that a company has failed to comply with its own internal procedures is by no means conclusive. It is only a factor, amongst others, that has to be given weight and the precise weight it should be given is a matter for the Industrial Tribunal itself, not for an Appeals Tribunal. So much for that third point.

The fourth point raised is that a log book, which the Industrial Tribunal had held had slipped behind in its upkeep, had, indeed, not been behind. On that there is a mention in the decision of the Industrial Tribunal. At paragraph 13 they say of Mr Ali:

"He got behind with his log book and was urged to deal with that in order to keep abreast of matters insofar as his IMECH qualifications were concerned. With regard to that Mr Ali was eventually taken off the register, certainly insofar as the graduate 'fast track' scheme was concerned."

But there is no hint there that any complaint, in relation to the log book, was in any way discriminatory or motivated by race. It seems to us that the log book complaint takes the matter no further.

Finally, of the five points, Mr Ali complains that the Respondent's witnesses should have been cross-examined, but the directions which the Industrial Tribunal gave itself in that long passage from the paragraph which I earlier cited, shows that their approach in point of law was entirely correct. There was no case to answer and so the hearing was a thing that the Industrial Tribunal could properly stop at the end of Mr Ali's case. One is not entitled to cross-examine the other side if one has, in fact, made no case oneself and so the Industrial Tribunal is beyond criticism on that ground.

We recognise this as a very sad case. Mr Ali has been suffering under very severe, indeed tragic, personal circumstances and although that naturally leads us to be sympathetic in his cause, we cannot help him if there is no error of law in the Industrial Tribunal's conclusions because it is only at errors of law that we look. We find, notwithstanding our sympathy, no error of law and accordingly dismiss the appeal.