MR M JABBAL v (1) MR R SMITH (2) THE POST OFFICE [2000] UKEAT 122_00_1311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 122_00_1311Case No Appeal No. EAT/122/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M JABBALAPPELLANT(1) MR R SMITH (2) THE POST OFFICERESPONDENT
Before
His Honour Judge H Wilson Mr J R Crosby Mr N D WillisDate 13 November 2000
[1]APPEARANCES For the Appellant MR M JOHNSTONE (Representative) The Employment Law Service 277 Hinckley Road Muxloe Leicestershire LE3 3PJ JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the original applicant against the decision of the Employment Tribunal sitting at Leicester over four days in November 1999, which found that the applicant's complaints failed and were dismissed. The appellant complained of racial discrimination. He has applied for a job as a processing engineer with the Post Office and he was not appointed, he said, despite having higher qualifications and 21 years experience. He wrote to ask why and suspects that the successful candidates were all white.[2]The respondent says that the appellant was one of 13 shortlisted of whom only two were successful. The appointments were made after assessment by assessors who included two of Asian origin. On the basis that the act of discrimination complained about happened on 2nd December, when the applicant was informed that he had not been successful, the respondent said that the application was out of time but denied discrimination.[3]The appellant today has been represented by Mr Johnstone who has submitted some grounds of appeal in amplification of those submitted by Mr Jabbal himself.[4]The application turns on Mr Jabbal's contention that he had wanted to recall Mr Smith for further cross-examination and that he had understood that his request had been accepted by the Chairman although in fact Mr Smith was not recalled. The Chairman has no recollection of there being an application to recall Mr Smith but states in his letter that he did recollect working very hard in difficult circumstances to get the appellant's story properly aired, because he was acting for himself having lost support at a late stage. The Chairman said that the tribunal had explored thoroughly the points raised by the appellant's affidavit and could see no way of changing their view, even if Mr Smith had been recalled.[5]Mr Johnstone comments about that part of the Chairman's response by saying that the opposite view has to be taken and the question is whether the misunderstanding, if that is what it was, which resulted in Mr Smith not being recalled constitutes a sufficiently serious flaw of procedure to justify this matter going forward for full argument because it is unknown what Mr Smith might have said had he been recalled.[6]In that regard, we have considered it appropriate to look at the detail of the decision from the Employment Tribunal which ran to four pages of A4 typescript. The tribunal states in paragraph 6 of their decision that:
"The Royal Mail has a recruitment policy which is very nearly written in stone. Much of the documentation shows us how strictly management have to adhere to best practice in recruitment. The object of the exercise is to avoid discrimination on any unlawful basis (race being one of them). … The boarding would be chaired by the Manager of the facility and the candidates would be assessed by two trained assessors. …"
[7]Dealing with the witnesses themselves, in paragraph 10 the tribunal's decision deals with Mr Smith's position and the fact that he had misunderstood his role. They nevertheless found that what happened with regard to the appellant happened also with regard to another candidate. The matter is summarised by paragraph 10 stating:
"Mr Smith asked him [ the appellant ] questions which Mr Smith was not entitled to do and marked him [ the appellant ] down. That is the basis of the case against Mr Smith."
The Chairman went on to state on behalf the tribunal:
"11. We have the opportunity of observing witnesses in the witness box, of reading the documents and of testing vigorously Mr Smith and his colleagues. The applicant has similarly has had that opportunity. We have no doubt that a mistake was made. We have no doubt that it was not malicious and that it was based on a misunderstanding. What is significant to us is that it was a mistake that was equally applied that morning to a white European. …"
Later on, dealing with Mr Smith's position, at paragraph 19, the tribunal said:
"… We have heard from Mr Smith himself. He is a respondent. His job had been on the line. The allegation has been that he conspired with others and orchestrated the doing down of the man because of his race. We make it clear that we found no evidence of that at all. That is having read all the documents and having test vigorously the witnesses."
[8]We pause to note that the matter which it appears that the appellant wished to put to Mr Smith was not something which had taken him by surprise, but which would have been evident from Mr Smith's evidence-in-chief. The appellant, therefore, had every opportunity to put the matter to him when he was cross-examining him in the first instance.[9]Finally, we note the terms in which the conclusion of the tribunal in this case was expressed. We quote from paragraph 21 of the decision:
"… What we have done is carefully gone through the evidence, looked for anything that we could draw adverse inferences, looked for the danger signals and listened to the applicant himself. We have not only listened to the way the applicant put his case, which was bluntly that there was a conspiracy to do him down because he was Asian and of a particular part of the Asian community. We also looked for the more subtle and perhaps more insidious form of discrimination. We found no indicators having tested the witnesses at all. We conclude this case with this observation. The Royal Mail in our view should be congratulated in the way they process their recruits. We were impressed. This application is dismissed."
[10]So too, for the reasons given, must this preliminary hearing be the end of this appeal which could have no reasonable chance of success were it go to a full hearing.