MR J KOTECHA v (1) COMBINED INSURANCE COMPANY AMERICA (2) MR I POCOCK [2002] UKEAT 0999_01_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0999_01_1906Case No Appeal No. EAT/0999/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J KOTECHAAPPELLANT(1) COMBINED INSURANCE COMPANY AMERICA (2) MR I POCOCKRESPONDENTS
Before
Ms Recorder CoxDate 19 June 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MS RECORDER COX QC This matter comes before us today as a resumed Preliminary Hearing, following the adjournment of the first Preliminary Hearing held on 23 January 2002. The Appellant appeals from a decision of the Birmingham Employment Tribunal, promulgated on 14 February 2001, dismissing his unfair dismissal and breach of contract claims for want of jurisdiction and dismissing his complaint of racial discrimination after a full hearing on the merits.[2]At the first Preliminary Hearing this Appeal Tribunal, with the President presiding, considered the grounds of appeal advanced by the Appellant in full and gave a fully-reasoned judgment dismissing all the grounds of appeal, save in relation to one matter on the basis that the appeal had identified no arguable errors of law by the Tribunal in arriving at their decision. There is therefore no necessity for us to comment further on the history of this matter or on the original grounds of appeal, which were dealt with fully in the judgment of this Appeal Tribunal on 23 January.[3]The one ground not dismissed on that occasion is what led to an adjournment of the Preliminary Hearing. In relation to Points for Perversity, Ground (c) there was an order that the Chairman of the Employment Tribunal be requested to provide his notes of evidence, in respect of that ground, to include what evidence, if any, was given so as to come to the conclusion contained at 5.12 of the decision. Those notes have now been provided and the matter has been re-listed, ex parte, in order for us to determine whether that one remaining ground should proceed to a full hearing by this Tribunal.[4]The specific allegation, Perversity Ground (c), was as follows:
"Mr Kotecha was left out of the dinner invitation at the instigation of the Second Respondent. No evidence was presented to the Tribunal that Mr Kotecha was ever invited to the dinner (see paragraph 5.12 of the decision)."
[5]The Chairman's notes appear at pages 98-99 of our bundle. They reveal that, when cross-examined on 12 October 2000, on day 5 of the hearing, the witness, Simon Chalmers, was asked about this invitation. The Chairman has noted the following evidence: "Question: June 1998. Portugal Sales Convention. He says he was not invited? Answer: Verbal invitation by me. I recollect A (the applicant) said he had a prior arrangement. It was a dinner for all the people who worked in the Region be invited to dinner. There is no question of him being excluded from that invitation. (Chairman: Where is this alleged in A (the applicant's) witness statement? Applicant's rep: Paragraph 42)[6]On the same day the witness and Second Respondent, Leslie Pocock, expanded on paragraph 24 of his witness statement and the Chairman has noted the following passage of evidence:
"Both myself and Clive ensured every single person got a letter saying "good news, we've arranged a dinner" – because there are nights on the convention when you have a night to do your own thing. As well as the letter I know for a fact Simon Chalmers as a District Manager invited A (the applicant)."
[7]These notes, provided by the Chairman, were copied to the parties on 25 February 2002. Since then, the Appellant, acting in person, sought to revive an application for further notes to be provided by the Chairman in order, it seems, to enable him to progress this matter further to the Court of Appeal. This request has been refused, quite properly in our view, by the Registrar in her letter to the Appellant of 3 May 2002.[8]Today, we have before us correspondence from the Appellant indicating that he does not intend to appear at this renewed Preliminary Hearing because he is on holiday. We have read his letter of 9 May and he invites this court in his absence to go ahead and make our decision.[9]It seems clear to us that no arguable error of law has been identified in relation to this one remaining ground of appeal and the Chairman's notes indicate clearly that there was evidence on which they could come to the conclusion they did at paragraph 5.12 of the decision. We therefore dismiss this appeal on that remaining ground in addition.