SAIM KOKSAL v LONDON BOROUGH OF LEWISHAM [1999] UKEAT 149_99_1405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 149_99_1405Case No Appeal No. EAT/149/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SAIM KOKSALAPPELLANTLONDON BOROUGH OF LEWISHAMRESPONDENT
Before
Mr Justice MorisonDate 14 May 1999
[1]APPEARANCES For the Appellant APPELLANT IN PERSON MR JUSTICE MORISON (PRESIDENT): This is an Appeal by Mr Koksal against a decision of an Employment Tribunal which dismissed his complaint of Race Discrimination following a 3-day Hearing. The complaint that was made by the Applicant was that the Respondents, the London Borough of Lewisham, had discriminated against him on the grounds of his race, he being Turkish, in relation to his application to be appointed to the post of Business Support Manager. Mr Koksal had made something like 14-19 applications for employment in the 5-year period from 1992-97 with this Authority. It is his belief that there is institutional discrimination by the London Borough against the Turkish community and he has devoted considerable time and resources to advancing the interests of the Turkish community in that area. He has been involved in the voluntary sector for some 15 years, dealing with Housing, Community Care issues and latterly, he has obtained an MBA degree in 1994.[2]In support of his complaint of discrimination he relied upon a number of previous unsuccessful applications which he had made and asserted and argued that there was a pattern to the treatment which he was accorded by the Respondents. Those jobs are referred to in paras 12 through to 18 and briefly explain why it was that he was not appointed. His complaint was rejected. He was not shortlisted. In deciding whether his failure to be shortlisted was the result of race discrimination the Tribunal indicated that they looked carefully at the Respondents' explanation for the rejection. They said this:
"We accepted as genuine Miss Mikardo's assessments of the strengths and weaknesses of Mr Koksal's application based as it was, quite properly, on the information in the application form. We were also satisfied with her assessment of the merits of Miss Nightingale's application form. Her views were genuinely reached and were reasonably sustainable on the information available to the shortlisters. The Respondents' shortlisters were entitled, on the information before them, to come to the view that the successful candidate more readily met the requirements for the job. The Respondents' explanation was thus both adequate and satisfactory. We did not derive further assistance from the evidence of the previous rejections of Mr Koksal's earlier job applications, though limited evidence was adduced about the applications, some of which were a number of years old and there was also scant documentation. In the circumstances, we concluded that the applicant had not made out his complaint of race discrimination."
[3]The circumstances in which Mr Koksal came not to be put on the shortlist are dealt with at paras 24 and 25 of the decision. What he is saying on this Appeal is that the way the Borough have dealt with his various applications in the past leads one to believe that they do not include his name properly on the Applicants to be Considered appointment. He says that if one studies the documents it would appear that his name was missing from documents in which his name should appear. In other words, there is a long list, then a list of people who are to be considered for shortlisting and he points out from these documents that he does not appear to have had his name included when he says it should have been. He drew attention in particular, during the course of the oral argument, to three particular positions. One of them, that is an application made in April 1994 for the Pepys Neighbourhood Manager's position, was not in fact one of the ones considered by the Employment Tribunal and we should not therefore deal with it ourselves, as we should only consider matters which were before them, but the other two involved an application in June 1995 for the position of Assistant DSO Manager, where he says that his name was wrongfully and unlawfully excluded from the shortlisting form and secondly, from his application for Development Initiatives Manager's post where he says again, that he was excluded effectively from consideration because his name was left off the documents. In fact, in that particular case, he was shortlisted and interviewed on 5 th July 1994 but complains of the way that his application was dealt with.[4]In support of his Appeal here, his Notice of Appeal runs to some 17 pages. He has presented a skeleton argument which runs to 9 closely-typed pages and he has also given us the final submissions which he made to the Employment Tribunal in October 1998. He is aware that the Employment Appeal Tribunal can only consider cases where there is an arguable point of law and that the purpose of the Hearing today was to determine whether there is any arguable point of law shown in his Notice of Appeal. He says that the Employment Tribunal has mixed the misconduct, mismanagement, sex discrimination and racial discrimination during the hearing of the case and therefore the law has been incorrectly interpreted or applied. We have to say that we do not think that that is a fair criticism of the Employment Tribunal's decision which seems to us clearly and fairly to weigh the parties and submissions and cases and clearly and fairly to set out their conclusions.[5]He complains that the Employment Tribunal accepted the truthfulness of the Respondents' witnesses and their fabricated statements of evidence. We cannot review the facts of the case. We are therefore, not in a position to indicate whether we agree with the findings of fact made by the Tribunal. It is not our function to do that and accordingly, we dismiss that as a ground of appeal. He indicated that the Employment Tribunal accepted the Respondents' misleading, baseless and irresponsible explanations as fact, and he makes a number of points. It seems to us, with great respect to Mr Koksal, that this again, is another point which is not a point of law. He says that the Tribunal omitted the previous Chairman's decision on the case and in a way, allowed the Respondents to use some baseless and tailor-made or made-to-order documents about general issues regarding the Turkish community. That is not a proper ground of Appeal. He then says that some of the evidence was destroyed before the Tribunal took place and again, says more vital evidence was deliberately and intentionally removed from the Respondents' first bundle sneakily. Again, that is a factual matter which we cannot intervene about. He said that new evidence had become available but we do not, having looked at it, think that that is of any merit. He made an application for a Review to the Employment Tribunal which was properly turned down in our judgment and we do not consider that there is any point of law which is raised under that head.[6]We have not done in this Judgment full justice to the range of arguments which Mr Koksal has raised before us, but he must understand that we have looked at all the points which he has asked us to take into account. There is no point of law raised by his Notice of Appeal or as elaborated in argument before us and accordingly, his Appeal must be dismissed.