Solomanz v Kingsway College Corporation [1998] UKEAT 338_98_1105

EAT
Solomanz v Kingsway College Corporation
[1998] UKEAT 338_98_1105 · 1998-05-11

JUDGE LEVY QC:

This is the Preliminary Hearing of an appeal by Mr Senn Solomanz born on 1 August 1959, who sent an application to an Industrial Tribunal which was received by the Tribunal on 30 August 1995, complaining that he had been the object of discrimination in his employment with Kingsway College Corporation (the College), when he was not appointed Director of Finance after such a vacancy had been advertised on 23 January 1995.In the Notice of Appearance of the Respondent, the College confirmed that the Applicant had applied and was one of five short-listed for the post, three of whom were external applicants. The Applicant was interviewed; he was not considered to be the best candidate for the post and was therefore not appointed. The Applicant complained following the interview. His complaint was investigated according to the College grievance procedure. The complaint was not upheld. The College strongly denied having racially discriminated against the Applicant in any of its procedures.A hearing of his complaint took place before an Industrial Tribunal sitting at London (North) on 25,26, 27 and 28 November 1997. On that occasion Mr Solomanz was represented by a Racial Equality Officer. Following the hearing, the Tribunal concluded, in a decision promulgated to the parties on 9 January 1998, that Mr Solomanz was not racially discriminated against and he was not subject to discrimination.From that decision Mr Solomanz appeals by a Notice of Appeal dated 16 February 1998. Mr Nigar of Counsel has appeared before us this morning and made submissions on behalf of the Appellant. Essentially, he says, that notwithstanding the careful findings of the Industrial Tribunal, that Mr Solomanz was discriminated against because, he says (though he has cited no authority for this) there should have been positive discrimination in his favour. Secondly he says that Mr Solomanz was discriminated against because when the department needed re-structuring, he was less favourably treated than were others.As to the first point, it is clear to us that the Tribunal carefully considered and properly addressed themselves on the matters to which they had to look into. They referred in paragraph 15 of the decision to King v Great Britain China Centre [1991] IRLR 513 . The Tribunal came to the conclusion, as they were entitled to come to, that he was not discriminated against or victimised in any way.We see findings in the Extended Reasons which, on the evidence as we understood was presented to it, the Industrial Tribunal was entitled to reach. We do not think that inferences such as those Mr Nigar suggested should be inferred, were properly open to them to infer. As to the second point, it is clear from paragraph 18 of the Extended Reasons that in fact Mr Solomanz was better treated than were other employees. He was offered a new job, albeit at a lower rate, which none of the others were. Additionally, he was offered the opportunity to apply for a higher paid job but he chose not to apply to it. Paragraph 19 of the Extended Reasons reads as follows:
"We do not find that Mr Lloyd manufactured the restructuring of the department because Mr Solomanz had submitted a complaint to the Tribunal claiming that he had been racially discriminated against. It was clear that the department needed restructuring. It did not make sense for there to be a finance director and underneath him a finance officer and underneath the finance officer other section heads reporting through the structure. The finance department needed to be restructured because of the exigencies of the College needing to reorganise itself owing to its incorporation and increased financial responsibilities."
Mr Nigar, in the course of his submissions, had suggested to us that the restructuring of the department was something which was done because of racial discrimination against his client. That clearly can not be so.In the circumstances we have carefully considered the grounds of appeal as submitted by the Appellant, and all that Mr Nigar has said to us in his oral submissions. In our judgment, there is nothing to go forward to a full appeal which can possibly succeed on the proper findings made by the Industrial Tribunal. The four corners of the decision suggest that the hearing was conducted with great care and the judgment given is one, which we think is impeccable. In the circumstances we have to dismiss the appeal at this stage, while thanking Mr Nigar for his helpful submissions.