MR K W CHAN v TAMESIDE MBC [2000] UKEAT 1256_99_2605

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1256_99_2605

Case No Appeal No. EAT/1256/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K W CHANAPPELLANT

TAMESIDE MBCRESPONDENT

Before

Mr Justice Lindsay

Date 26 May 2000

[1]APPEARANCES For the Appellant No appearance by or on behalf of the Appellant MR JUSTICE LINDSAY (PRESIDENT) This is a preliminary hearing of the appeal of K W Chan in the matter of Chan v Tameside MBC. Mr Chan does not appear nor is he represented, as we shall explain. On 31 January 1998 Mr Chan lodged an IT1 claiming "Unfair treatment during the short test of the selection process, race discrimination and sex and marital status discrimination." He had applied for a job with Tameside Metropolitan Borough as a Temporary Auditor and in the course of the selection process there had been tests which included that the Applicants should do computations. Mr Chan had taken his own calculator with him but was asked to use a calculator provided to him, rather than his own. One of his complaints is:

"I strongly feel that the confiscation of my calculator and provided me with the out dated council calculator was a deliberate discrimination tactics deployed by the Council in order to destroy my confidence prior to the interview. I also strongly believe I was discriminated because of my race, sex and martial status."

[2]It is a slightly odd complaint because,so far as the Respondent asserts despite one error made in a computation by Mr Chan he scored the highest of the candidates in the computation test. The IT3 lodged by Tameside says there was an office calculator which was given to candidates, there was no instruction on the type of calculator to be used, there were 3 people involved in managing the tests which the candidates took prior to their own interviews and it is accepted that they may not have acted consistently in returning candidates' calculators for the test or not as the case may be. Mr Chan, asserts the IT3, scored the highest mark in the preliminary tests of the 14 candidates on the short list. Selection was on the basis of those tests and an interview. The tests and the interviews were marked and the candidates were ranked based on those marks. The marks were aggregated. Both interviewers had the same candidates in the first three places and at the time it was intended to make the three appointments. Mr Chan was placed joint 5 th ; a little later the IT3 says:- "At no time in the selection process was the Applicant's ethnic origin, gender or marital status taken into account. The Applicant was not subjected to any detriment as a result of his ethnic origin, gender or marital status."

[3]The matter went forward to a hearing at Manchester under the chairmanship of Mr N.L Creed. That took place on 25 June 1999. In fact evidence seems to have been heard over a period of 3 days. On 23 July 1999 a very full decision giving every appearance of a very careful decision was promulgated by the Employment Tribunal. The unanimous decision was that the Applicant's claim alleging unlawful direct race discrimination, contrary to the 1976 act was dismissed. The last paragraph reads as follows: 12. "In the circumstances the allegations made by the applicant alleging direct unfair race discrimination were dismissed on the balance of probabilities. The applicant's claim alleging sex discrimination and discrimination on the grounds of married status were deleted at the Directions Hearing which took place on the 31 March 1999 upon the applicant's application for leave so to do." So far as the business of the calculator was concerned, the Tribunal said this: The Tribunal was not satisfied on the balance of probabilities that the applicant was put at any disadvantage by using an office calculator as distinct from his own calculator. The applicant sought to allege during the course of his evidence that the functionality rendered the office calculator more difficult to operate and that it was less complex than his own machine. The Tribunal were satisfied that the only error that he made on paper (ii) was a simply mathematical error with regard to calculation of percentages on VAT calculations. Calculations were done during the hearing to see whether the calculator could do the calculations.

[4]That allegation was only one of very many allegations made by Mr Chan which were dealt with one by one in considerable detail by the Tribunal. It might be worth adding that the Appellant had not been regarded as a reliable witness. The Tribunal said that they did not find Mr Chan a reliable and accurate witness and they make a point that he called a Miss Moller as one of his own witnesses, having been warned that he would not be able to cross examine her but only examine her in chief, and that persisting in calling her did considerable damage to his case. On 3 September 1999 which was the last permissible day of the 6 week period allowed for a Notice of Appeal, a Notice of Appeal was received by the Employment Appeal Tribunal. It is signed "Gruber Garratt," perhaps a firm that was then acting for Mr Chan, but their role is not explained. So far as concerns grounds of appeal, it says:

"Documents were submitted by the Respondent during the hearing: The Chairman of the Tribunal appears to have been unfair towards me and the final decision went against the weight of evidence or was illogical. I am awaiting advice in detail from my barrister within the next seven days which will specify the complaint in more detail."

[5]On 29 October 1999 an affidavit was sworn by Mr Chan alleging bias and misconduct on the Tribunal's part. He wanted to rely on that in his Appeal. On 25 November a full response was received from the Chairman, Mr Creed, denying misconduct of any kind on his or his Tribunals part. A preliminary hearing was fixed.

[6]On 22 April Mr Chan wrote a letter to the Employment Appeal Tribunal received shortly thereafter. It is from an address in Dukinfield in Cheshire and it says: - "I will inform you that I would not be able to attend the Appeal hearing in May 2000 as I have recently received a message that I have to return to my place of birth as I have to take care of my mother due to her health conditions. I cannot anticipate the exact time for returning to the UK." He also says in that letter: - "The defective calculator was a setup for me and the questions relating to Child care and work permit were also deliberately deployed by Tameside MBC in order to exclude me from employment. The low score in personal attributes would the way to mark me down. I now enclose the defective calculator, please carry out the quick keying (i.e. 2*3÷6 =) I am sure you will find out the errors. Please return this calculator to me by sending it back after your examination. I look forward to receiving your reply."

[7]Whilst I do not wish to give evidence I mention because it is relevant to the course we take that I have not been able to extract inaccurate answers from the calculator. In all the circumstances we can no other than adjourn the preliminary hearing for two reasons.

[8]First, if Mr Chan regards as he plainly does, the performance of this particular type of calculator as crucial to his appeal, he is going to need, either in person or by a representative, to explain his case to us in detail. In particular he will need to explain the defective nature of the calculator which so far we have been unable to detect. Secondly, it would be wrong to allow the matter to go forward to a full hearing where it is not known whether the Appellant could or would be able to attend the hearing. No date can be fixed at the moment because he cannot give a date when he will return to the United Kingdom, if he does. Mr Chan's letter of 22 April is from an address in Dukinfield and the last part of the letter says:- "I look forward to receiving your reply" so presumably he can therefore still be reached by way of letter to that address.

[9]We order as follows; first, we adjourn the preliminary hearing generally with liberty for it to be restored. Secondly, we direct that a letter should be written by the Employment Appeal Tribunal, not later than 1 June 2000 and sent by first class post to Mr Chan at the Dukinfield address indicating that his appeal cannot go forward without his attendance either in person or by a duly instructed representative and indicating also who, that if he believes that he will be unable, either on account of his mothers illness or for any other reason, to return to the United Kingdom before 31 July 2000, he is to write to the Employment Appeal Tribunal a letter to be received by the Employment Appeal Tribunal not later than 15 July 2000 saying what, if any, reason is still keeping him out of the United Kingdom and by what date, if any, he can indicate that he is likely to return. The Employment Appeal Tribunal's letter is to state that his appeal is adjourned generally but that it can be restored for hearing but only for a date at which either he will attend in person or will attend by way of a representative. He is also to be told in the Employment Appeal Tribunal's letter that if no response is received from him to the Employment Appeal Tribunal's letter by 15 July 2000 then the appeal will be dismissed without further notice.