MR B KANU v LONDON BOROUGH OF LAMBETH [2001] UKEAT 816_00_1307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 816_00_1307

Case No Appeal No. EAT/816/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B KANUAPPELLANT

LONDON BOROUGH OF LAMBETHRESPONDENT

Before

Mr Justice Lindsay

Date 13 July 2001

[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE LINDSAY (PRESIDENT) We have before us, as an adjourned preliminary hearing, the appeal of Mr B Kanu in the matter Kanu v London Borough of Lambeth . Today, Mr Kanu has appeared in person, but it is one of those days when a representative from ELAAS has attended and Miss Hill gave some assistance to Mr Kanu and drew up for his benefit, and no doubt for ours, a summary of issues to which Mr Kanu has referred us. But, for all that, it is Mr Kanu alone who has addressed us, and indeed, after the first two minutes or so of the hearing, Miss Hill withdrew altogether.

[2]It is necessary to set out the chronology of the matter. On 18 December 1995, and one notices how long ago that was, Mr Kanu lodged an IT1 for racial discrimination, redundancy and "grievance" against the Chief Executive of the London Borough of Lambeth and Heather Rabbatt. It was given the number 72687/95. In fact, in the passing of time, the London Borough of Lambeth has become the sole Respondent.

[3]Mr Kanu had been an Occupational Health and Safety Officer at the London Borough of Lambeth, and his employment had begun in April 1987 and had ended, he said, on 27 November 1995. The IT1, it has to be said, is somewhat vague and certainly unparticularised.

[4]On 1 March 1996 there was an IT3 from Lambeth. It denied the charges laid against it in the IT1 and made a request for further and better particulars to be supplied by Mr Kanu. The Chairman later ordered further particulars, and on 23 April 1996 Mr Kanu supplied Further and Better Particulars of Claim, still in the case 72687/95. Giving his claim an alphabetical description, he said there had been(a) failure to be granted promotion;

(b) unfair assessments;

(d) unfair selection for redundancy, and

(e) a claim under the Equal Pay Act , and also there was coupled with that, as I understand it, a Race Relations Act questionnaire.

[5]On 7 June 1996, they having in the meantime received those particulars, there was by then a more full IT3 from Lambeth, still in 72687/95, giving a detailed denial of Mr Kanu's allegations, including the allegation that he had been dismissed for a potentially fair reason, namely redundancy.

[6]At some point in 1996, Mr Kanu issued a second IT1 - it is not in fact in our papers, but it must have been against Lambeth, and it was given the number 43661/96, in 1996. On 2 September 1996 Lambeth entered its IT3 responding to 43661/96.

[7]Then between January 1997 and September 1998 both 72687/95 and 43661/96 came on for hearing at the Employment Tribunal at London South. It was a long hearing, of some twenty six days or so; seventeen witnesses gave evidence. It seems that in the course of the case the Employment Tribunal eventually applied time limits to Mr Kanu's cross examination of witnesses against him, and also that the Respondent had, during the course of the hearing, applied from time to time for Mr Kanu's applications to be struck out because of what they said was unreasonable conduct on his part of the cross-examination.

[8]But, eventually, the many days of the hearings were concluded and after an even longer delay, there was then on 4 May 2000 the Decision sent to the parties; it was the Decision of the Tribunal at London South, under the chairmanship of Mr John Warren, sitting with Mr Shukla and Mr Austin and the unanimous Decision of the Tribunal was:

"(i) the Respondents did not discriminate against the Applicant contrary to the Race Relations Act 1976 as alleged (ii) the Applicant was not unfairly dismissed by the Respondent (iii) the Applicant's claims under the Equal Pay Act fail and are dismissed."

It was an immense Decision. The Extended Reasons are some sixty four pages of close typing.

[9]On 13 May of last year, there was a Notice of Appeal from Mr Kanu, it advances thirty eight separate points, paragraph by paragraph. One of those grounds is this, at 11:

"At paragraph 5(x) the Tribunal throughout the hearing interrupted the Appellant's cross examination of witnesses. This is one example where the chairman refused the Appellant to cross examine Mr Ian Sesnan, a relevant witness, and he interviewed the Appellant for two posts as the chair of two interview panels."

So that plainly there was some form of criticism of the conduct of the hearing. On 26 July, Mr Kanu amplified that ground in a statutory declaration and three letters at or about the same time, and the statutory declaration and, no doubt, the Notice of Appeal and the letters were sent to the Chairman for comment.

[10]On 6 December of last year, the Chairman gave his comments. They were detailed answers, in many cases numbered so that one could see, number by number, which allegation was met with which answer, but there is a more general point made in the Chairman's paragraph 16 and 17 as follows:

"16. This was the most difficult case I have ever had to conduct. There were times when I had great difficulty in keeping the Applicant confined to the issues and in moving the case along. I did try imposing sensible time limits, but the Applicant was never prevented from asking any question of witnesses - in the end he was always given the time he needed. Suggesting time limits were attempts to "apply the mind". 17. There were a number of occasions where the Applicant's conduct in these proceedings put him in peril of being struck out. The Respondent made requests during the hearing that because of his conduct the Applicant be struck out. The Tribunal refused these applications. I however tried to explain that in "football parlance" he had a "yellow card" and whilst I was not striking him out on this occasion he should be careful."

[11]We are not going to attempt a reaction to, or an answer in detail to, each of the thirty eight paragraphs, not least because Mr Kanu has not referred to each of them, but we must emphasise that the Employment Appeal Tribunal does not provide a rehearing of the case. It is for an Appellant to identify errors of law; at this preliminary stage we are looking for arguable errors of law in the Decision, but the burden on an appellant whose complaint is largely one of fact, is undoubtedly a heavy one. Admittedly there can come a point at which a Tribunal's failure in relation to fact does become an error of law, but it does not suffice for the Appellant to urge that there was some evidence that would have enabled the Tribunal to find other than it did, nor even to satisfy the Employment Appeal Tribunal that had it heard the evidence, and had it seen the witnesses, it would have determined otherwise than had the Employment Tribunal decided the case. The appellant in such a case has to show that no Employment Tribunal, properly instructing itself, on the evidence it received, could have concluded as the one in issue had done. It is not sufficient to say that the weight of evidence pointed to some other conclusion but that there was no evidence which could have supported the conclusion which the Tribunal had arrived at. Short of satisfying such a burden, an appellant asserting mishandling of fact will necessarily fail, as the complaint would remain one of fact, whereas the Employment Appeal Tribunal, by statute, has power only to deal with error of law.

[12]We set this out in some detail because Mr Kanu, to judge from his written Notice of Appeal, has not understood that he has to limit himself to complaints of law. We see amongst the thirty eight paragraphs of complaint some such as this, for example, at paragraph 19 he says:

"At paragraphs 5 (lxxi - lxxiii) it was untrue that the Appellant went to Nigeria on holiday. In fact he went to Sierra Leone on holiday."

Well, that is hardly an error of law. I should say that in the papers Mr Kanu, who is a black African, is identified as a Sierra Leonean national. He is some fifty eight years of age.

[13]Another of the thirty eight paragraphs is number 25:

"The respondent refused to reimburse the Appellant a taxi fare of £5 when he attended a Safety Symposium at Keele University with the approval of management. Other white employees were reimbursed, Ray Chivers and Maria Kallinicos. There is written procedure which was not followed by the Respondent."

Well, there again, that hardly points to some error of law, indeed most of Mr Kanu's thirty eight points are as to fact, or at any rate, fail to identify any error of law of any kind. To make the point we, perhaps, should take some more examples - I will not, at this stage, identify the paragraphs from the Chairman's comments to which Mr Kanu is specifically referring, because if necessary, number by number, they can be identified, but at Mr Kanu's number 4, he says this:

"At paragraph 5(ii) the chairman omitted the Appellant's two professional qualifications, such as membership of Institution of Occupational Health and Safety and Institute of Refrigeration."

In fact, the Tribunal did say that he had other technical qualifications, so, plainly, no error of law there, nor any material overlooking of fact, and his number 5 says:

"At paragraph 5(iv) the chairman wrongly assumed that Technical officer requires health and safety background."

In fact, the Tribunal made no such assumption, they merely suggest that someone like Mr Kanu, who had only had four months' time with the borough at the material point, might be at a disadvantage when applying to be a Technical Officer.

[14]His paragraph 6 says this:

"At paragraph 5(v) there were evidence that the Appellant applied for the above post"

But that is relative to the loss of some papers; it was the job applications of others, as well as Mr Kanu's, that the Employment Tribunal could not trace as they had been destroyed after six months, in accordance with ordinary practice on the part of Lambeth.

[15]His number 7 says:

"At paragraph 5(vi) the tribunal wrongly assumed that the Appellant had limited experience in health and safety."

But we have no reason to believe that the Tribunal had no evidence at all to come to that conclusion, in particular they heard Mr Hickman give evidence, and they accepted his evidence as being credible. His number 8 says this:

"At paragraph 5(vii) the tribunal wrongly assumed that the Appellant requires 3 to 4 years practical experience before he can be awarded corporate membership. On the basis of his qualification and experience that he was awarded the membership. In his oral evidence, Mr David Hickman lied that the Appellant forged his signature to obtain the corporate membership. There are different routes to obtain corporate membership. This paragraph is strongly contested."

Note there that it is not said that the Tribunal had no evidence whatsoever for the conclusion that it came to - it plainly had the evidence of Mr Hickman; he gave evidence. His credibility may very well be disputed by Mr Kanu but his credibility is a matter for the Tribunal below, not for this Tribunal. We need to comment that Mr Kanu must bear in mind that credibility of witnesses is entirely a matter for the Tribunal below. It does not assist him here to say that Mr Hickman lied, more especially because the Tribunal expressly say that they find Mr Hickman to be an honest witness.

[16]Then at paragraph 9 Mr Kanu says:

"At paragraph 5(viii) the tribunal refused to infer even though there were overwhelming evidence against the Respondent. The evidence submitted by Appellant was not in dispute. This paragraph is strongly contested."

So that is an allegation that an inference should have been drawn as to some figures for 1988. Mr Kanu does not say what inference of any materiality should have been drawn and, in any event, it is for the Tribunal to decide, as a matter of fact, whether an inference should be drawn or not. Even if there is evidence which entitles a Tribunal to draw an inference, it still remains a matter for the Tribunal whether that should be drawn or not.

[17]His paragraph 10 says this:

"At paragraph 5(ix) the tribunal made the wrong assumption that a Safety Officer may have to attend a particular site at great speed to operate Borough wide. An Ambulance would be required at a great speed. The possession of a driving licence was not a requirement for the Appellant's post."

But the Tribunal specifically held that the job advertisement required a successful candidate to have a full driving licence, and we have no reason to believe that the Tribunal had no evidence before it on which that conclusion could be drawn.

[18]His paragraph 12 says this:

"At 5(xi) the Appellant applied for the post of Environmental Health Officer. The tribunal wrongly assumed that the appellant's Bsc Degree in Environmental Engineering is not equivalent/equal in value to Bsc Degree in Environmental Sciences. The Appellant's qualification satisfies the person specification. This paragraph is strongly contested."

The Tribunal did not say, as Mr Kanu says that they said, but they did hold that his degree did not satisfy the person specification for the job, and we have no reason given to us that suggests that there was no evidence whatsoever that could have led them to that conclusion.

[19]Then at his number 13, Mr Kanu says:

"At paragraph 5(xii) the Appellant did not reapply for the vacant post for the same reason ie unilateral requirement of driving licence imposed by Mr David Hickman."

Well, that is not a complaint of any kind, let alone a complaint of law. At 14, Mr Kanu says:

"At paragraph 5(xiii) the Appellant applied for the post of Building Control and was not interviewed although he had the qualification and the experience."

Again, that fails to identify any error, let alone an error of law, and it needs to be noted that Mr Kanu had made no complaint about that at the time.

[20]It would not be right to take up time to go through all of the thirty eight paragraphs in any such way, although we have dealt with, by now, a good number of them. They were not, in fact, mentioned orally this morning, but we have thought it right to look at the Notice of Appeal in some detail to see whether we can find errors of law. What is perhaps significant is that the Employment Tribunal turned to the law in its paragraph 7 and continued down to paragraph 10 and carefully set out the statutory provisions and a number of authorities to which it referred itself or was referred. While Mr Kanu refers time after time to paragraphs of the Tribunal's Decision, he does not directly refer, at any stage, to paragraphs 7 to 10.

[21]Moreover, a great many of Mr Kanu's complaints to the Employment Tribunal were well outside the three month period prescribed by Section 68 of the 1976 Act. The Tribunal considered the extension of time under Section 68 subsection 6, and perhaps we ought to refer to what they say on that subject. In their paragraph 12 they say, having set out a whole series of instances:

"12 In these instances, the Respondents have been prejudiced given the lapse of time and the absence of complaint to the Respondents at the time by the Applicant. In the absence of any complaint at that time, the Respondents did not retain any documents relating to the Applicant's applications for the post, the paperwork has long since been destroyed. The Respondents witnesses cannot recall all of the detail regarding the Applicant and are prejudiced and unable to deal properly with the complaints against them. 13. The Applicant gave no explanation to the Tribunal as to why he had not brought a complaint in respect of all or any of those unsuccessful applications sooner. 14. In all the circumstances, the Tribunal does not consider it just and equitable to extend the time for presentation of a complaint of discrimination on the grounds of race in respect of these matters. Accordingly the Applicant's complaints of discrimination on the grounds of race in respect of his failure to obtain those four posts is dismissed. The Tribunal does not have jurisdiction to hear the Applicant's claim in respect of those matters."

That is all we say for the moment on the Notice of Appeal itself, but we referred earlier to the Summary of Issues which Miss Hill prepared, or assisted in the preparation of. I take it, although this has not actually in terms been said to us, that it is in Miss Hill's hand, and looking at that, again, there are a large number of issues, some are touched on in the Notice of Appeal to which we have already referred, some are not.

[22]The first one is this: whether the Tribunal erred in law in finding that there was no requirement or policy which operated in a discriminatory fashion, prior to September 1995, leading to its finding that complaints about non-appointments made before that date were out of time, and/or that it was not just and equitable to extend time to hear those complaints. Well, we have come close to dealing with that a moment ago; the Tribunal in paragraph 11, having set out a number of complaints made by Mr Kanu said:

"All of these acts complained of occurred substantially outside the three months prior to the presentation of the Originating Application. To have jurisdiction the Tribunal must be satisfied that either they form a part of a continuing act which culminated in an event which is within the three month period or that it is just and equitable to extend the time for presentation of the complaint. The Tribunal reminds itself of the following authorities:" and then it refers to four leading cases in the areas, and then they continue: "

The Tribunal concludes that each application for a vacant post was a discrete act. The rejection of the application for the posts cannot be regarded as constituting a continuing act. The Applicant suggested in his evidence that Mr Hickman, his then line manager, may have made adverse comments about the Applicant to others thus prejudicing the Applicant's applications for posts. The Applicant did not put that allegation to Mr Hickman. When the Tribunal questioned Mr Hickman about that suggestion he denied that he had done such an act. The Applicant could not point to even one specific fact to support his allegation. We found no supporting evidence to support the Applicant's contention that Mr Hickman tried to prevent his progression. Indeed, on the contrary, Mr Hickman appears to have done everything possible to improve the Applicant's chances of progression. There is nothing before the Tribunal to support a finding that the Applicant's failure to be appointed to one or all of those four posts was a continuing act. There was no requirement or policy within the Respondent Council aimed to prevent Black Africans from progressing. We asked ourselves whether it is just and equitable to extend the time for presentation of the Originating Application." and as we have mentioned earlier, they decided that that would not be appropriate. It seems to us that it was open to the Tribunal to conclude as they did, and certainly nothing we have heard has persuaded us that it was an impermissible option on the part of the Tribunal, so we see no error of law in that part of the case.

[23]Then Mr Kanu, using Miss Hill's list says this:

"Whether the Tribunal's finding in relation to the allegedly discriminatory assessments procedure was flawed"

Well, of course, merely to raise a question hardly asserts an error of law, but, leaving that aside, one sees that the Tribunal did deal with this question of potentially discriminatory assessment. In their paragraph 24, they said this:

"The Applicant's complaints regarding his assessments under the Career Progression Scheme initially were that it was only the black employees at Lambeth that were subjected to the Career Progression Scheme. During the hearing, the Applicant's position changed and the allegation was then that the Career Progression Scheme was rigorously applied in the case of black employees and leniently applied to white employees. Towards the end of the Respondent's case and in his submissions the Applicant reverted to his previous allegation that white staff were not subjected to the Career Progression Scheme and were promoted without assessment under it. The Tribunal are satisfied on the evidence before it that it is quite clear that in the departments of the Respondent Council where the Career Progression Scheme applied that all of the employees, both black and white, were subjected to it. We accept the evidence of Mr Anderson, Ms Simms, Ms Kallinicos, and Mr Greenall in this respect."

And a little later, in the same paragraph, they say:

"The Tribunal was satisfied that the Scheme, where it did apply, was applied to both black and white employees alike, there was no evidence to support the Applicant's allegation that the Scheme was operated more strictly for black employees. The Applicant's allegations are rejected."

So no error of law would seem to be open to Mr Kanu there.

[24]Then under headings 4, 5 and 6 which are, to some extent related in the summary which Miss Hill provided, Mr Kanu says this:

"4 Whether the Tribunal erred in finding that the grievance procedure was handled without discrimination. 5 Whether the Tribunal erred in finding that it did not have jurisdiction to consider the part of the grievance complaint which pre-dated late 1995 as being out of time, and/or whether it should have extended time on the just and equitable ground, although this is not referred to by the Tribunal until paragraph 38. 6 Whether the Tribunal erred in dismissing the grievance procedure complaint."

The Tribunal in fact dealt carefully with the grievance question over some seven paragraphs between paragraphs 29 and 35. The Tribunal concluded that the complaint was out of time. They said this:

"38 The Tribunal is of the view that any complaint about that aspect of his grievance is out of time. No explanation has been given for the delay and the Tribunal does not consider it just and equitable to extend the time. The Applicant's grievance raised on 20 November 1995 was dealt with on 27 November, 1995 indeed it was then the Applicant who requested that the hearing of that later grievance in November 1995 be delayed. There has been no failure on the part of the Respondents to investigate the Applicant's grievance and his application in that respect must therefore fail. The Respondents did not discriminate against the Applicant on the grounds of his race in the way that they dealt with his grievance. 39. The Tribunal would say that in the event that they are wrong on the time point in respect of the 1992 and 1993 grievance, had the application have been in time, the Tribunal would not have found that there had been a delay by the Respondent in dealing with the grievance. Any delay was due to the Applicant himself and the Applicant's allegation of race discrimination in that respect would also have failed."

So the matter was investigated, as one can see; the Tribunal came to a decision. We have no ground for thinking that they had no evidence which supported that decision and we are unable to find any error of law in those complaints.

[25]Then in paragraph 7 Mr Kanu says:

"Whether the Tribunal erred in dismissing the redundancy aspect of the complaint"

As to that, the Tribunal said in their paragraph 40:

"The Applicant alleges that he was unfairly selected for redundancy. A redundancy situation existed within the meaning of section 139 of the Employment Rights Act 1996."

A little later they said:

"There is no evidence before the Tribunal but that the markings attributable to Mr Martin and the Applicant, were anything other than fair and appropriate marks in view of the answers which they gave to the questions raised by the panel. The outcome was close, there being only 3 marks in it. Both Mr Kanu and Mr Martin are black. Mr Martin is Afro-Caribbean and Mr Kanu is African. The Tribunal is satisfied that the interview process and marking was fairly carried out. The Applicant's dismissal was attributed to redundancy and was fair."

Well, again, we have no ground for supposing that that was an option which the Tribunal was not entitled to come to on the evidence which it had heard.

[26]In his number 10, because not every one of these headings was in fact orally ventilated before us, Mr Kanu says:

"Whether the Tribunal erred in dismissing the pay discrimination claim /Equal Pay claim on the basis of comparators"

And this, the Tribunal dealt with, in their paragraph 47 they say:

"The Applicant alleges race discrimination by the Respondents in that white and Afro-Caribbean officers in the Directorate of Environmental Services were at higher grades and higher rates of pay than the Applicant who was in the Directorate of Operational Services. The Applicant also compares himself with Mr Chivers who is white within the Directorate of Operational Services. The Tribunal accepts the Respondents' explanation that there was a difference in grading structure between the two Directorates and a material difference between the duties and responsibilities of Health and Safety Officers in the two Directorates."

[27]A little later, the Tribunal says:

"The difference in grading and pay was not a matter to do with race but with the fact that the jobs were different in the two Directorates. White Safety Officers in the Directorate of Operational Services had the same grading structure as the applicant."

And then Mr Chivers, they say, had managerial responsibility - the Applicant did not. The differences in pay between the Applicant and his chosen comparator were not due to differences in race.

[28]Mr Kanu argues before us that he had asked for the attendance of certain comparators to give evidence. That was refused. If it was the case that material evidence was shut out, that could and should have been appealed at the time, but it would seem that the Tribunal felt that they had sufficient evidence on which to conclude and conclude on the subject they plainly did. Mr Kanu says that false documents were deployed against him as part of the Respondent's case, during the Employment Tribunal hearing, and he has referred us to a number of pages including in a special supplementary bundle, pages 293, 296 and 295, but that is, of course, completely a matter of fact which we have no grounds, or indeed jurisdiction, for going into.

[29]Mr Kanu raises a point under TUPE. The IT1, nor indeed, the Further and Better Particulars delivered under it, do not mention TUPE (The Transfer Of Undertaking Protection Of Employment Regulations). Mr Kanu himself asserts that he was dismissed before any TUPE transfer which he might assert, even if there was one, which is very far from accepted. That there was a transfer after he was dismissed would not, of course of itself, necessarily bar him from gaining a relief against a transferee but here no transferee has ever been made a party to the proceedings which are, or were certainly by the time of the hearing, exclusively between Mr Kanu and the London Borough of Lambeth and TUPE is irrelevant to his claims against the only Respondent, which was Lambeth.

[30]Mr Kanu alleges that it was quite clear that a policy or practice of racial discrimination by the same individuals at Lambeth, time after time, served to deny him promotion or equal pay, or fair assessment, that being a policy or practice going well back into the 1980s. But if that was clear why did he not issue proceedings back in the 1980s, and, indeed, why did he wait until 1995?

[31]That delay obviously told against him at the Employment Tribunal. The delay of itself, to some extent, suggests that there was nothing clear at all about the existence of any policy or practice and that enabled the Employment Tribunal to hold that what they were looking at were discrete acts, rather than some malevolent policy or practice. In turn, that supported their view that they were entitled to regard the earlier events as out of time.

[32]As for the conduct of the Employment Tribunal hearing, Mr Kanu's Statutory Declaration on the subject has some twenty eight paragraphs of complaints and observations. We have the Chairman's detailed comments, paragraph by paragraph, set out so that the number in one is matched by the number in the other. On very many points the Chairman has no recollection at all; sometimes his recollection exists but is sharply different to Mr Kanu's. To take an example, in paragraph 7 of his Statutory Declaration, Mr Kanu says:

"When applicant was asking God to help him because has been interrupted by both the respondent and chairman continuously, chairman said there is no God here to help you."

The answer from the Chairman is:

"I would not have acted in this way. What did occur was when Applicant did not like ruling he would exclaim "

Oh God" - I said that I found such language/conduct unacceptable and asked him not to repeat it." On any footing, it can only have been inappropriate for Mr Kanu, audibly, to ask God to help him, save, at any rate, during the taking of the oath.

[33]Looking at the accusations made by Mr Kanu and the Chairman's responses, we have no adequate material conclusively, or even tentatively and provisionally, to rule either in favour of one or against the other, or the other way round. We cannot thus find any complaint as to conduct, even arguably, at the moment yet to have been shown to be capable of final proof. But perhaps some guide on the subject may be found in the character of the Extended Reasons that eventually emerged from the Tribunal. Whilst a careful, painstaking and detailed decision does not, of itself, disprove a Tribunal's misconduct, it is unlikely to be found alongside misconduct on the Employment Tribunal's or the Chairman's behalf. Here, as it seems to us, the Decision is exactly that: careful, painstaking and detailed. It is of enormous length, as of course befitted so long a hearing, spread over some twenty six days.

[34]A Chairman can be reasonably expected to intervene to keep oral cross-examination within bounds, limiting it to matters that are material, and also to see that it is properly and inoffensively conducted, and a Chairman has a duty (see Rule 9(1) of the Employment Tribunal Rules), as has the whole Tribunal, to raise their own questions where they think that is necessary; a Chairman can be expected to place reasonable time limits on questioning.

[35]A Chairman can also be expected to decline to make orders for disclosure of documents when he cannot see the relevance of the documents in relation to their assisting or not assisting the proceedings. If an Order for Discovery is refused, well then, the disappointed applicant for it can appeal to an Employment Appeal Tribunal but no such appeal was made at the time. Equally, if an Order for Disclosure is made but not performed, it is for the Employment Tribunal to decide whether the explanation for the non-performance is acceptable or not.

[36]We have dealt already with a great of detail, we do not pretend to have dealt with every single detail, but standing back from the detail, and looking at the matters alleged, as a whole, in Mr Kanu's appeal, we have not been able to espy any error of law , and we do need to emphasise and underline the word "law", even an arguable one, in the matters that have been raised before us and we cannot hold the complaints as to conduct of the long hearing as arguably likely to succeed, given the material that has been laid before us by one and by the other.

[37]Accordingly, after hearing Mr Kanu and having paid attention, as we have indicated, as best we can to his case, we must dismiss the appeal even at this preliminary stage.