Kumar v. London Links Buses [1999] UKEAT 118_99_1005

EAT
Kumar v. London Links Buses
[1999] UKEAT 118_99_1005 · 1999-05-10
MR JUSTICE LINDSAY: We have before us, by way of a Preliminary Hearing, the matter of Mr K Kumar against London Link Buses. It is the appeal of Mr Kumar. The decision of the Employment Tribunal at London (South), under the chairmanship of Mr MacInnes, was promulgated on 3rd December 1998 after a 3-day hearing on 12th, 13th and 14th October 1998. The unanimous decision of the Tribunal was:
"1. The Applicant's claims of racial discrimination failed and are dismissed.
2. The Applicant's claim of victimisation contrary to Section 2(1)(a) of the Race Relations Act fails and is dismissed.3. The Applicant's claim of unfair dismissal fails and is dismissed."And then turning to another case number, because in fact, there are 3 case number headings - in relation to the one which ends up ...633/98:
"4.1 The Tribunal does not have jurisdiction to hear the complaint of racial discrimination alleged to have taken place on 27th July 1998.
4.2 The Applicant's complaint of racial discrimination in respect of an incident which took place in 1995 is out of time and that it would not be just and equitable to consider the complaint."There follow extended reasons which appear to be careful, even meticulous, in their dealing with Mr Kumar's several complaints which were of racial discrimination, victimisation and unfair dismissal. The Tribunal directed itself on the law by reference to the leading cases and we have been unable to identify any flaw in the manner in which they did so. In particular, they referred themselves to the leading cases of King -v- Great Britain China Centre and Aziz -v- Trinity Street Taxis Ltd on the questions.When one comes to the facts, one finds a whole series of findings which we will quote briefly to give a flavour of the way in which the facts were found. Thus, in 11.1.3 on page 12:
"The Applicant was not singled out in any way and was not treated less favourably by the other employees to any other employer nor was he treated less favourably than a notional employee of any other racial origin would have been ...."
We find that there was no conspiracy between Mr Dance and the other white employees to harass the Applicant. On page 13 and 11.1.4:
"The Tribunal is however satisfied that no other employee of the Respondent would have been treated better and there was no discrimination by Mr Dance."
On our page 14 we find:
"Mr Dance decided that he had no alternative but to dismiss the Applicant. We find that he would have dismissed any employee on these grounds and that his decision to dismiss the Applicant would have satisfied the tests in British Homes Stores -v- Burchell . The decision to dismiss did not constitute less favourable treatment of the Applicant."
A little later,
"In conclusion we find that Mr Dance did not discriminate against the Applicant."

Later still, in 11.2

"We find that the Applicant did not discriminate against the Application by failing to require the day shift electrician to transfer to nights."

And in 11.3

"We find therefore that the Applicant's conduct for which he was dismissed has no comparison with Mr Humphreys' and Mr Durrant's long-term certified sickness absences."

Going on to the next page, our page 15 in para 11.4

"The Tribunal finds these conditions were not discriminatory - in fact they put the Applicant on exactly the same basis as all other employees".

And in para 11.5.4

"We find that Mr Thompson would have dismissed any employee who had conducted himself in these circumstances as the Applicant did. We therefore find that his actions did not constitute discrimination nor, as he would have dismissed an employee who had conducted himself as the Applicant had but who had not done the protected act done by the Applicant, did Mr Thompson's actions constitute victimisation."
And then towards the end:
"We therefore find that his actions did not constitute discrimination nor, as he would have refused the appeal of an employee who had conducted himself as the Applicant did, but who had not done the protected act the Applicant had, did Mr O'Kane's refusal of the appeal constitute victimisation."
In particular, so far as is concerned unfair dismissal, in their 11.6 they said:
"In the light of our findings of fact above it is the unanimous decision of the Tribunal that the Applicant was fairly dismissed. The Applicant was dismissed by the Respondent on grounds of conduct, specifically his attendance record. The decision to dismiss was within the band of reasonable responses of a reasonable employer to the Applicant's conduct. The Applicant's attendance record was not in dispute and the Respondent adopted a fair procedure in arriving at the decision to dismiss the Applicant."
Now it is quite plain from those quotations without going more fully to explain in the light of the whole background that Mr Kumar lost the battle on the facts before the Tribunal. We have reminded him many times over that we are able to deal only with errors of law. It is for the Employment Tribunal which sees and hears the witnesses to determine whose evidence to prefer and they plainly did not prefer Mr Kumar's evidence.With that as background we look then to the sheet of paper headed "Appeal to the EAT" and it begins "My appeal against the Industrial Tribunal is set out briefly below" and Mr Kumar, who has appeared in person before us today, accepts that the very nub of his complaint is the point that he makes at para 5 of that one sheet of paper:
"Therefore I am appealing against the Industrial Tribunal decision that the truth has not been discovered by the Industrial Tribunal even though they took several weeks to make a decision."
His complaints, even if factually correct, remain complaints of fact, although of course, we must not be taken to accepting that they are factually correct, given the careful way in which it seems that the Employment Tribunal set out its findings. As matters of fact they are not within our province. We have sought to find errors of law that are arguable in favour of Mr Kumar. We have been able to find none. He has been able to find none for us. Detecting, as we do, no error of law we must dismiss the appeal even at this preliminary stage.