DR A M RANA v THE LONDON CLINIC [2002] UKEAT 797_01_0402

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 797_01_0402

Case No Appeal No. EAT/797/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A M RANAAPPELLANT

THE LONDON CLINICRESPONDENT

Before

Mr Justice Burton Mr R Sanderson

Date 4 February 2002

[1]APPEARANCES For the Appellant DR A M RANA THE APPELLANT IN PERSON MR JUSTICE BURTON : This is a preliminary hearing of an application by Dr Rana by way of appeal, against the decision of the Employment Tribunal at London Central on 23 April 2001, when it rejected his claim against the Respondent, the London Clinic, that the clinic had discriminated against him in his application for the job of a screening doctor at the Respondent's clinic.

[2]The evidence before the Tribunal ranged over, what in practice turned out to be, three years, 1998, 1999 and 2000 but his main claim had been and, indeed, the complaint had arisen, as a result of his being rejected for the position of screening doctor at the clinic in 2000.

[3]The facts in relation to 2000, as found by the Tribunal and there has been no challenge to them before us by Dr Rana, is that there were in excess of 25 applications, half of which were from candidates from ethnic minorities. As a result of the advertisement three applicants were appointed to substantive posts, one of which was of Asian origin, and in addition to those three substantive appointments, one for a short-term temporary post was also made and the person appointed to that post was also of Asian origin.

[4]The Respondent's evidence was that, although well qualified, the Applicant did not compare in terms of appropriateness for the job and merit with those who were appointed and that the basis for the rejection was in no way founded upon his origin, not least given that, of the four appointed, two were Asian.

[5]In addition, Dr Rana also made claims in respect of 1998 and 1999, in respect of which plainly, but for the 2000 matter, it would seem that no complaint would have been made because the Applicant had not made a claim in those years. But the Tribunal concluded that, in the circumstances of the case, they would not regard his allegations in relation to the earlier years, at least the 1999 year, as out of time.

[6]With regard to 1999 the finding of the Tribunal was that there were over 50 applicants for the position, a high proportion of which were candidates from ethnic minorities. Two candidates were appointed, one being a doctor of Asian origin, who had completed a logical progression through medical school and, after completing house officer appointments had entered a recognised GP vocational training scheme, followed by general practice for three years. The other appointment was a doctor of Irish origin, who had progressed through a general practice training to a two-year appointment as an associate GP in Sunderland and, although holding a locum GP post at the time of applying to the Respondent, that candidate was at the same time working in a substantive health screening post undertaking regular occupational health duties which were held to be relevant. Once again, the Respondent's evidence was accepted by the Tribunal that, in comparison with those two, the Applicant's qualifications were considerably inferior qualifications for the particular job, and that the ground for his rejection was not based upon discrimination due to his race.

[7]So far as 1998 is concerned, the evidence, that was given and accepted by the Tribunal, was that there was only one candidate who had been appointed, who had coincidentally written in, in the hope that there might be a vacancy. She had been a senior partner in a general practice for over 20 years. The Respondent did not accept that the Applicant had made any application in 1998 and that evidence was accepted by the Tribunal. In those circumstances his claim failed.

[8]The basis of Dr Rana's appeal before us is based upon two factual assertions. The first, although both of them are on the same basis, is that the Respondent, as he puts it in his Notice of Appeal, "clearly committed perjury at the Employment Tribunal". The two factual matters which are referred to are first, that the Tribunal stated, and the Respondent had stated in evidence, that a doctor was appointed in 1998, when such person had sent in a CV coincidentally at the time of the advertisement. Dr Rana says this is not what the Respondent said in a letter, sent by his solicitors to the Court by way of further and better particulars in March 2001, which letter from the solicitors had recorded that the Respondent had no record or recollection of having advertised for a vacancy for a health screening doctor in 1998.

[9]Secondly, so far as 1999 is concerned, Dr Rana pointed out that the Tribunal had found that the number of doctors appointed in 1999 was two when, in fact, the statement made, in the same letter of 5 March 2001, by the solicitors on behalf of the Respondent clearly stated that three doctors were appointed, and the statement, indeed, said that three candidates were subsequently appointed, who still remain with the Respondent to date, one of Irish origin and another of Asian origin, and there was silence as to the origin of the third. Dr Rana says:

"Thus I have not had a fair trial under Article 6 of the Human Rights Act 1998 and the verdict of the Tribunal is unsafe."

The fact that on the face of this letter the Respondent, but presumably he means the Respondent's witness Dr Wood, had committed perjury, is said to put into doubt all of the Respondent's evidence, upon which the Tribunal relied heavily.

[10]The position is as follows:(1) The letter of 5 March 2001 from the solicitors did, indeed, state that the Respondent had no record of having advertised for a vacancy.

(2) In relation to 1999 the letter did, indeed, state that three candidates were appointed and only indicated the origin of two of them.

[11]However, that is not the evidence that was given on oath by Mr Wood at the Tribunal. Mr Wood gave the evidence, which was accepted by the Tribunal, as follows, at paragraph 6:

"I do not recall exactly how many applications were received in January 1998, nor do I recall receiving an application from the Applicant in response to that advertisement. One candidate, Dr S was appointed in 1998, although not in response to the advertisement. Dr S had coincidentally written in, in the hope that there might be a vacancy."

[12]In relation to 1999, in paragraph 7, Mr Wood clearly gave evidence that there were two candidates appointed in 1999, one Asian and one Irish. Consequently, there was no question of the evidence not having been before the Tribunal upon which the Tribunal based its conclusion, and that was the evidence that was given on oath. The submission that Dr Rana now makes is that that evidence was perjured, which is a strong allegation to make. The basis on which he says it was perjured is that it is inconsistent with the solicitors' letter sent a month before the hearing. He tells us that he had a copy of that letter of 10 March with him at the hearing and that in cross examination of Mr Wood, he put to Mr Wood that the evidence he was now giving in both these two regards was inconsistent with what had been said on the Respondent's behalf by the solicitors in the earlier letter, and he cannot now remember what Mr Wood's response was. But the fact that the letter was available to him means, of course, that there is no question here of there being any application by way of appeal based on fresh evidence.

[13]What Dr Rana says is that the Tribunal, having had presented before them the apparently inconsistent letter from the solicitors and the sworn evidence of Mr Wood, not only ought to have rejected Mr Wood's evidence and concluded that it was unreliable but further, that no reasonable Tribunal could have done other than do so. He accepts that he did not suggest before the Tribunal to Mr Wood that he was lying, or in any submissions that he had perjured himself; that is a suggestion he only makes now. It is quite plainly unacceptable that he should not have made those allegations below, if they were going to be made, but being unrepresented he did not know that he should have done so, or that it is inappropriate to do so when the party in question has been in his target and he has not put it, and, so for these purposes we ignore any technical point that might be made about his not having suggested to the witness, when he had him in his sight, what he is now suggesting on an appeal.

[14]What is plainly fundamental is that this Appeal Tribunal is not a Tribunal which re-hears facts, except in those exceptional circumstances where the facts were not available in the Tribunal below. What we have to deal with here is a suggestion that, in relation to facts which were known to the Applicant and put to the Respondent's witnesses, no reasonable Tribunal could have done other than accept in the light of them that Mr Wood's evidence was false and unreliable.

[15]There is the further problem and that is this. Even if the Tribunal had accepted that Mr Wood's evidence was unreliable in respect of these two matters, it is far from clear that a Tribunal would have gone on to conclude, particularly given that these are not essential to his evidence, certainly not even relevant to his evidence in relation to what happened in 2000, that the whole of his evidence was unreliable such as to reject it, and that is what Dr Rana says no reasonable Tribunal could have done other than conclude.

[16]The position appears clear to us that, notwithstanding that there had been apparent inconsistencies between a solicitor's letter sent a month earlier and the sworn evidence of Mr Wood, that matter was put to Mr Wood; and, notwithstanding the apparent inconsistencies, which may well have been explained by Mr Wood as mistakes, but we have not got a record of what he said, nor does Dr Rana have any recollection, that having been put, the Tribunal accepted the reliability and credibility of Mr Wood on these not central matters, based on evidence that was before them, in their Decision.

[17]We see no ground whatever to reopen findings of fact by the Tribunal in those circumstances and we conclude that this appeal has no reasonable prospect of success whatever.