MR M BHEEMAH v MINISTRY OF AGRICULTURE, FISHERIES & FOOD [1999] UKEAT 1170_99_1312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1170_99_1312Case No Appeal No. EAT/1170/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M BHEEMAHAPPELLANTMINISTRY OF AGRICULTURE, FISHERIES & FOODRESPONDENT
Before
Mr Justice Charles Mr R SandersonDate 13 December 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : The parties to this appeal are a Mr Bheemah and the Ministry of Agriculture, Fisheries and Food. The matter comes before us today by way of Preliminary Hearing. The appeal is against a decision of an Employment Tribunal sitting at Exeter, the Extended Reasons for which were sent to the parties on 5 August 1999. The decision was that the Applicant's application was dismissed. That application was that he had been discriminated against on racial grounds.[2]The Employment Tribunal in their Extended Reasons identify the correct statutory provisions and case law. In this respect we refer in particular to paragraphs 2, 3 and 31 of the Extended Reasons. In our judgment the Extended Reasons show that the Employment Tribunal approached their task on the correct legal basis.[3]Further in our judgment, read as a free-standing document, the Extended Reasons properly explain the reasons for the decision of the Employment Tribunal. It follows that the basis of an appeal to this Tribunal can only be(a) an indication from a study of documents and other matters before the Employment Tribunal that they have left out of account some essential matter which needs to be included so that their reasons satisfy the correct approach at law, namely that they explain to the parties who are necessarily informed as to the issue and the documents as to why one won and the other lost, or(b) perversity.[4]Perversity has two elements. Firstly, as to the primary facts found a claim that no reasonable tribunal could have reached those conclusions, and generally that is based on the proposition that there was no evidence for them. Alternatively, a claim that findings, generally secondary findings, are outside the range that any tribunal properly directing themselves could have reached.[5]The Appellant has prepared a lengthy Notice of Appeal in which he has set out a number of grounds of appeal. He has also during his oral submissions to us identified particular documents upon which he relies in support of his grounds of appeal.[6]Standing back and looking at the grounds of appeal by way of overview, it seems to us that what the Appellant is seeking to do is to re-argue the facts of this case before the Employment Appeal Tribunal. As we explained to him, we are not a fact-finding tribunal and in view of our conclusion set out in paragraph 2 above, to establish that he has a reasonably arguable point of law that he can pursue on this appeal, he has to identify the matters I have just explained, namely a failure to adequately explain the decision or perversity.[7]The Appellant has failed to establish that either of such grounds are reasonably arguable. I will deal with our reasoning by way of example.[8]The Appellant referred us to documents which appear at pages 57 to 59 of the additional bundle before us which he says contain, or indicate, matters relied on by the Ministry and, in particular, managers who were concerned in the investigation of his appeal as to the 1998 assessment as to his performance. He says that such matters are fictitious, or incredible, and therefore he maintains they provide clear examples of, or support for, his case that discrimination based on race was endemic within the Ministry. Also he asserts that these matters were important matters which have not been dealt with expressly in the Extended Reasons.[9]However, the Extended Reasons, for example between paragraphs 16 and 19, do deal with the events and actions in respect of which these matters were raised at the Employment Tribunal and, for example, paragraph 19 of the Extended Reasons is in the following terms:
"19 In our judgment the appeals were dealt with very fully. A great deal of time was spent by the various line managers dealing with Mr Bheemah's objections. An example is Mr Brown's 5 hour meeting on 26 February 1999. We find no indication of any racial prejudice emerging from the correspondence or notes."
[10]It seems to us that the matters that Mr Bheemah has drawn specifically to our attention by reference to the documents at pages 57 to 59 of the additional bundle before us were before the Employment Tribunal, were considered by them as part of their fact-finding exercise and that they reached a conclusion on them as demonstrated by paragraph 19. We would go further and say that the way in which these allegations have been put to us are in terms of fabrication and thus of managers inventing material and it is plain from a reading of the Extended Reasons, as a whole, that the Employment Tribunal rejected such allegations against the individuals involved in the Ministry who, as is apparent from their Extended Reasons, they found had dealt with the issues that arose, and concerned them, fully and properly.[11]The next example we give in respect of what we regard as the Appellant's attempt to re-argue this case on the facts are his references to comments made about his performance and comments concerning others who have been marked fitted for promotion. In this respect we would refer to paragraph 26 of the Extended Reasons, which is in the following terms:
"26 We have a summary of marks for AO grades in the Livestock Subsidies Department. Mr Bheemah's assessments are within the general range of those grades. Even had he scored 2 for overall assessment there is certainly no direct correlation between such a score and a recommendation for promotability. There are within that section 9 overall assessments of 2 but only 4 recommendations for promotion."
[12]It is apparent and, indeed the Appellant accepts, that the comparison he has invited us to consider, namely between the complimentary assessments made of him and the assessments made of others who were marked fitted for promotion, was before the Employment Tribunal who make the point in paragraph 26 as to there being no direct correlation between the scores and a recommendation for promotability. Again therefore, it seems to us, that this line of argument advanced by the Appellant before us is simply a repeat of the points he advanced to seek to persuade the Employment Tribunal that he had been discriminated against on racial grounds and do not disclose a reasonably arguable point of law.[13]Finally, we should mention that the Appellant drew to our attention that, after the hearing before the Employment Tribunal a document was issued, bearing the date 5 August 1999, which showed that a Mr Stone had been recommended for promotion. Mr Stone is someone who is referred to in the Extended Reasons, in particular paragraph 21. He was introduced into the case because the Appellant was asserting that he, Mr Stone, had been more favourably treated than the Appellant and that this was an indication that the Appellant had been discriminated against on racial grounds.[14]In our judgment the additional information included in the document dated 5 August (which is also the date upon which the Extended Reasons were sent to the parties) does not raise a ground of appeal. The information was not before the Employment Tribunal, albeit that the individual identified in the new information, Mr Stone, was advanced as someone the Employment Tribunal should take into account as a comparator and someone whom the Employment Tribunal did take into account as a comparator.[15]We do not see how the Employment Tribunal can be said to have erred in law in not having regard to this additional information, which was not before them, or why these new events close in timing to the hearing before the Employment Tribunal give grounds for an appeal against their decision.[16]We have not dealt with each of the points or examples raised in the grounds of appeal. Many of them in fact point to allegations that the Appellant makes against Mrs Dodds, rather than his allegations as to institutionalised or endemic discrimination. The examples that we have given, in our judgment, identify the nature of these points. They are all, in our judgment, attempts by the Appellant to re-argue the facts.[17]Further it may be that some of them, for example, paragraph 12, where the Appellant says that paragraph 3 of a document at page 206 of the Respondent's bundle (which it appears from the Notice of Appeal refers to one of the matters drawn to our attention by Mr Bheemah by reference to pages 57 to 59 of the additional bundle of documents before us): "is one of several manufactured lies that have been given to him for upholding that he was not fitted for promotion in his 1998 report" seek to place a different emphasis on matters that were raised below. But, as we have said, it is clear from the Extended Reasons that the Employment Tribunal were of the opinion that those involved on behalf of the Ministry had not in any way acted improperly, had not lied and had not manufactured lies as is being alleged in the Notice of Appeal.[18]We therefore find that this appeal raises no reasonably arguable points of law and that it should be dismissed.[19]A final word. The Employment Tribunal found that the Appellant was convinced of his case but that there was no evidence to establish it, when the matter was looked at through the eyes of a third party. We would express the hope that the Appellant will try to examine matters through the eyes of a third party and will be able to continue his work against that background.[20]The appeal is therefore dismissed.