MR S KOKSAL v BUSINESS LINK LONDON (THE CITY, HACKNEY AND ISLINGTON) LTD [2001] UKEAT 0344_01_1009

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0344_01_1009

Case No Appeal No. EAT/0344/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S KOKSALAPPELLANT

BUSINESS LINK LONDON (THE CITY, HACKNEY AND ISLINGTON) LTDRESPONDENT

Before

Mr Recorder Langstaff

Date 10 September 2001

[1]APPEARANCES For the Appellant MR GUMBITI-ZIMUTO (of Counsel) Messrs Johns & Saggar Solicitors 193-195 Kentish Town Road London NW5 2JU MR RECORDER LANGSTAFF QC This is a Preliminary Hearing in an appeal against the decision of the Employment Tribunal sitting at Stratford, reasons for which were promulgated on 29 January 2001. That case had taken four days with an additional day in Chambers to hear. At the end of this the Tribunal dismissed Mr Koksal's complaint that he had been discriminated against by reason of his race, he being Turkish.

[2]The facts drawn from the reasons of the Employment Tribunal are briefly these. The Respondents refused to employ Mr Koksal despite several job applications from him. The Tribunal found in particular that an application in May 1999 had led to an interview in June, following which, on 21 June, he was rejected as going forward to the next stage. In October 1999 there was an interview on 29 th of the month. Mr Koksal was not put forward for assessment by QED, who apparently assessed, on behalf of a number of London boroughs, suitability for the post. The Tribunal added that there had already been an unfavourable assessment by QED on referral from another London borough.

[3]The Employment Tribunal identified four issues which they had to resolve. The first was whether the refusal to recommend Mr Koksal for the next stage of the employment procedure at QED assessment on 29 October 1999 was because he was of Turkish national origin and/or had spoken out critically of the Respondent's treatment of ethnic minorities. The answer that the Tribunal gave to that is found at paragraph 21 of it's Extended Reasons. The conclusion was:

"Having heard Mr Edwards and Mr Smith give evidence and having observed Mr Koksal dealing with questions put to him during this hearing, we are satisfied that Mr Koksal failed the interview because of his performance and not because of his Turkish origin."

[4]The second issue which the Tribunal addressed was whether, if the refusal to recommend him had been because of Turkish national origin, he would have been appointed to one of the posts he had applied for if no such discrimination had taken place. That was answered at paragraph 22 in which the Tribunal said this: "Turning to the second issue, we accept the evidence that, if Mr Koksal had been recommended to attend QED for an assessment, they would have provided the Respondents with the existing report and that the Respondents on reading it would have rejected Mr Koksal. Accordingly, even if the decision of Mr Edwards and Mr Smith had been tainted by racial discrimination, Mr Koksal would not have got the job anyway." [I interpose to say that it may seem to some that the failure to put him forward for an assessment might itself amount to a detriment because he had lost the chance of a favourable assessment. However, the complaint that was made before the Employment Tribunal in the Originating Application was a complaint that he had not been employed and was not a complaint which in its terms alleged the detriment to which we have just referred.]

[5]The third and fourth issues were taken together by the Tribunal. They were these. Was the refusal to appoint Mr Koksal as a business advisor on 21 June 1999 because he was of Turkish national origin and/or had spoken out critically of the Respondent's treatment of ethnic minorities? And four, if so, is the claim in time or, if not, should be it extended? The answer that was given was that the Tribunal refused to extend time but said that if it had done it would have decided there would have been no racial discrimination. The basis for the first view was set out in paragraph 23 in these words:

"We conclude that either Mr Koksal did know of his rights or knew sufficient to seek further advice. In any event no proceedings were initially brought following the alleged discrimination in June 1999 and we are not prepared in the circumstances to extend Mr Koksal's time. If we had taken the opposite course we would in fact have held that no racial discrimination had taken place."

They went on to accept the evidence which had been given on the employer's behalf and accepted with regard to a Mr Munden that he had no prior knowledge of Mr Koksal and failed him on his performance alone.

[6]There was an application for a review of that decision which was made on 11 February 2001. The application was accepted on 20 February 2001. The review accepted the arguments put in part, in that paragraph 9 of the original decision was amended in order to correct details which had wrongly been recorded of the CV of Mr Koksal. His CV had been confused with another of the Applicants for the jobs. However , the substantial part of the application for a review in which Mr Koksal had complained about the aspects of the Tribunal's decision that found against him was rejected.

[7]His Notice of Appeal to this Tribunal repeated the arguments which he had raised on review and which had been rejected by the Tribunal. However, before us, he has had the fortune to be represented by Mr Gumbiti-Zimuto, who has been able to focus the arguments put into four main arguments. Three relate to the claim made on review and again in the Notice of Appeal in which bias in the sense of a predisposition against Mr Koksal is alleged.

[8]The first three points taken were these. First it is said that the Tribunal failed to understand the significance of the late service by the Respondent of a number of documents. In breach of an order earlier made by the Tribunal the Respondent did not produce documentary evidence until some 30 to 35 days prior to the hearing taking place. Those documents were voluminous, consisting as they did of some 500 pages. As a result of that late service a potential witness was not identified by Mr Koksal in time for him to locate that witness so that that witness's evidence might be available at the hearing. Mr Koksal made an application on the second day of the hearing to debar the Respondent from defending because of their failure to comply with the direction. The bias is said to be indicated by the Tribunal's refusal of that application. The force of it is, that because of the lateness in being given the information, Mr Koksal was disadvantaged in the presentation of his case and it relates to bias in that he complains that this is something which the Tribunal should perhaps have recognised and that their holding against this application indicated a general view towards his case which was later to be demonstrated by their rejection of it. However, he did not at the time ask for an adjournment so that he might continue making enquiries as to the whereabouts of his witness.

[9]We have to ask ourselves whether there was here a procedural fault. On the information then available to the Tribunal, we think it was within the proper discretion of the Tribunal to permit the Respondent to continue to defend the case. Indeed, it would perhaps have been a surprising exercise of their discretion had they debarred the Respondent, bearing in mind that the documents had actually been supplied more than a month prior to the hearing.

[10]The second point made to us was that central to the case was the performance of Mr Koksal at interview. He asserted in his evidence that he had answered the questions at interview properly and fully. During the course of the case that was not challenged. The Tribunal were to find that:

"…we do not believe that it was his [Mr Koksal's] linguistic ability that let him down. Rather it was his inability to respond appropriately to another person's questions. As was said in evidence; "

Mr Koksal appeared to have his own agenda." " His complaint before us is that insofar as that is concerned he was never challenged while giving evidence and the conclusion of the Tribunal to that effect in the absence of such a challenge has left him with a sense of injustice and a sense that the Tribunal were against him without proper justification.

[11]The third point, again relating to bias, is that in paragraph 15 of the decision the Employment Tribunal apparently accepted that the interviewers were entitled to take a view that Mr Koksal was asking them to read a copy of a business plan and thereby breaching confidentiality. Yet it was common ground, we were told, that the document had never been read and so there was no proper basis for suggesting that there was a breach of confidentiality. This, Mr Koksal complains, was an indication of the Tribunal being 'over willing' to find points against him, indicative of a general disposition toward him which can only properly be summed up as a bias.

[12]I have taken points two and three together, in part because there is always a danger that in focusing upon individual parts of a case and dealing with them in isolation on the whole, one may miss the impact of those points taken collectively. To focus upon the scene may distract one from the message given by the play.

[13]However, we have concluded that there is here no arguable ground of appeal which merits this case going before a full Tribunal. We think that a Tribunal does not have to put in terms to a litigant that their performance in answering questions may be subject later to adverse comment by them. Many Tribunals will, many will not, but we cannot necessarily say that they were wrong in the sense of committing an error of law in not doing so, if that is what happened, in this case.

[14]So far as the breach of confidence issue is concerned, the Tribunal, it seems to us, were in paragraph 15 reporting a view and a concern that the interviewers had. They note specifically that the interviewers did not read the plan. What they were accepting, it seems to us, was that the concern of the interviewers as to confidentially was genuine, that, in part, that concern may have influenced the outcome of the interview, but one has to bear in mind the context. The Tribunal were examining whether or not the reasons had anything to do causatively with the race of Mr Koksal. Looked at in that light, it would not matter directly whether the interviewers took a view as to client confidentiality which was not open to them in the sense that they had not read the document, provided that the Tribunal were satisfied that they did so genuinely. There is nothing to suggest that the Tribunal here took any other view. The Tribunal are careful, it seems to us, not to ally themselves with the interviewers in that reading, the words used are:

"….it appeared to them that Mr Koksal was breaking his confidence."

In short, the Tribunal here were examining the reasons and motivation for the interviewers scoring and behaving as they did and we cannot say that they reached a finding of fact which was not open to them to reach. Nor can we say that the fact that they held as they did demonstrates a determined preconception of the case such as to amount to a bias against the Appellant.

[15]We turn then to the final point which was made to us. This is not contained in the Notice of Appeal and therefore, as Mr Gumbiti-Zimuto cheerfully accepted, it required leave and indeed it required to be formulated. As formulated in the course of submissions it was that the Employment Tribunal erred in that it failed to give consideration to all relevant issues in determining whether the Appellant was discriminated against on the grounds of race. Namely, by failing to look at all the circumstances of the case taken together. He asked us to examine paragraphs 15 and 21 of the decision and sought to suggest to us that paragraph 21 demonstrated that this Tribunal had approached criticisms made by Mr Koksal of the interview process one by one, dismissing each in turn, so that there had never been any proper consideration of the overall force of those submissions, rather like the bundle of sticks each one of which taken on its own can be broken so that the entire bundle is broken but if taken as a bundle it cannot. He was suggesting that there was, if taken overall, here evidence of discrimination and that the Tribunal's approach was in error because it failed to take the last step of standing back and looking at the totality of the evidence having examined each independent strand of it separately.

[16]We have examined in particular paragraph 21 to see whether that was in fact the process in which the Employment Tribunal were engaged. We do not think that it bears out an argument that this is what was happening. Indeed, as was pointed out in the course of argument and accepted on behalf of Mr Koksal, the second last sentence at paragraph 21 begins with the word 'however' before going on to indicate a satisfaction in the Tribunal that Mr Koksal did not proceed further in the interview process for the reasons given, that is, his difficulty in responding appropriately to questions, rather than because of the way he spoke or understood English. The word 'however' comes after points have been made which might be thought to favour Mr Koksal, just as earlier in the paragraph points were made which might be thought to do the opposite, and represents, it seems to us, a balancing process in which the whole of the evidence is evaluated rather than an impermissible focusing upon some of the detail to the exclusion of the totality.

[17]It follows that if we were to give leave for this point to be argued we would find that there was no arguable case in it. It seems to us that this matter not having been raised as a ground of appeal before, and Mr Koksal having had both the opportunity by way of application for review and in his Notice of Appeal to do so, it is proper and appropriate for us to decline the application for leave, but to say that in any event we would not have been persuaded that there was here an arguable ground on which the matter should go to a full inter partes appeal.

[18]Accordingly, on each of the points which have been argued before us we are of the view that there is no properly arguable point of law. This appeal must therefore be dismissed.