Appeal No.	 EAT/727/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 1997

Before
HIS HONOUR JUDGE D PUGSLEY
MRS J M MATTHIAS
MR S M SPRINGER MBE

MR S RAMLOCHUN	APPELLANT

LONDON BOROUGH OF GREENWICH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C A PURNELL
(of Counsel)
Plumstead Community Law Centre
105 Plumstead High Street
London
SE18 1SB	

	JUDGE D PUGSLEY:     This is an application which came before the Industrial Tribunal and occupied some five days.  The Decision is, in our view, a carefully crafted Decision which sets out in very full and comprehensive terms the Tribunal’s findings.

	The nature of the complaint presented by the Applicant was that the London Borough of Greenwich had discriminated against him on racial grounds by failing to appoint him to a post of Senior Building Surveyor at the interview on 2 June 1995; its failure to appoint him to a similar post in July 1995; by declining to short-list him in October 1995 and that the Director of Development failed to deal with a complaint of race discrimination, on his behalf, made by the Greenwich Council for Racial Equality.

	In the Tribunal’s Decision they set out in Skeleton form the various statutory provisions and also to the various seminal cases principally, of course, King v Great Britain China Centre [1991] IRLR 513.  The essence of the case is set out in the Tribunal’s determination of the matters and it deals with the narrative of events that took place dealing with, in particular, the failure to appoint the Applicant to the post in June and July 1995.

	The grounds of appeal and the Skeleton Argument have been supplemented by oral argument and in copious detail various allegations of perversity are made.  It is difficult to identify, from reading the grounds of appeal, what is the area of law which is being delineated as a ground of appeal.  When pressed the Appellant’s representative Mr Purnell, was really reduced to the most general allegations of perversity.

	The Tribunal examined over a very long period, namely five days, the events which took place.  They set out the general structure and policy of the Council and they deal in some detail with the posts that were available and the way in which the arrangements were made for the post to be taken.  

	In paragraph 18 of the Decision they note that they had spent more than half the case hearing evidence from the three assessors who had acted for the appointments on 2 June and 18 July.  They set out in paragraph 19 the reasons that the Applicant attacked the findings of the panel and they note in paragraphs 19 and 20 that all three assessors agreed the marks quite closely and, although they fairly admitted they may have undermarked on one or two questions, in general they are unanimous in their view that Mr Ramlochun did not measure up to the post of Senior Building Surveyor.  They noted in paragraph 20, that Mr Sobotie, a black interviewer, was clear that the choice was based upon performance before the panel and that race was not a factor in the markings.

	In paragraph 29 through to 37 the Tribunal sum up the contentions made by both sides.  They sum up the contentions made by the local authority and then in paragraphs 33 et seq they sum up the submissions made on the Applicant’s behalf as to the evidence of racial discrimination.  We asked Mr Purnell in what way the submissions made on his behalf, in his Skeleton Argument were not set out in the review of the position by the Tribunal.  It is right to say that he did not consider there were any such issues.

	The Tribunal, having summed those matters up, then reached and announced their decision in paragraph 38 onwards.  They make the primary self-evident finding of fact that the Applicant was not white; that he was not appointed to the post for which he had applied and that a white man was appointed.  They say, “We are therefore justified in looking to the Respondents for an explanation”.  They then deal with the various explanations that the Respondents make for the fact of not appointing the Applicant.  That explanation was:

“(a)  the Council set up an objective test with a mixed panel.  It was designed to be objective and was objective.  It was therefore unlikely to come to a decision on racial grounds;
(b)  the Applicant failed because he did not show sufficient knowledge of the technical nature of his job;
(c)  the Applicant did not see the application for the October appointment was out of time and the Respondent having properly considered his application and the reasons for it correctly used his discretion to refuse.
(d)  Mr McCollum in no way failed to deal with the Applicant’s complaint.  He saw the Applicant twice in relation to his first complaint and was not a man to turn his back upon racial discrimination.  He rightly insisted upon the correct procedure in reply to the letter of 11 November.”

	As to the interview the Tribunal say this:

“...  It is clearly quite possible to disagree with any marking but looking at the matters as a whole, we thought this was as objective a system as we have seen and we could not find anything which led us to reject the explanation that in the honest view of those interviewing Mr Ramlochun was not suitable for appointment as a Senior Building Surveyor.”

	They then go on to the fact that he was not short-listed after this:

“With regard to the refusal of short-listing Mr Anderson was perhaps a little hard on the Applicant.  On this occasion it would have done no harm to admit him to an interview.  However he did act within his discretion and we see nothing in the case which would entitle us to make the inference that the reason for refusal was race discrimination.  The facts are simply not there.”

	The Tribunal then considered the complaint that Mr McCollum had not seen the Applicant and they make the point that Mr McCollum’s letter rejecting the request when pressed for a meeting was less than helpful.  They point out that it would have been more helpful for him to have investigated the matter, but the Tribunal say in paragraph 42:

“However, that is not the sole question.  We have to look at the case to decide whether there is anything in it which leads us to the inference that Mr McCollum would not have treated a white complainant in the same way.  His insistence on strict adherence to the procedures seems to us to be gender [I think it means racial] neutral.  Given his good record in combating discrimination and encouraging equal opportunities and his previous willingness to see the Applicant we cannot see anything from the primary facts we find to submit us to go on and draw the inference that a white person who wrote such a letter would not have received the same reply.  We therefore decline to draw the inference of discrimination and we must dismiss this complaint.”

	The Tribunal, it is true, do not make any findings of fact about those matters which appear in the Applicant’s Originating Application that point to a pattern of discrimination in the way he had been dealt with in the past, but in paragraph 43 the Tribunal do say:

“Finally we should say that over the five days a large amount of detail emerged which has not been covered in this decision.  The purpose of a decision is not to repeat the evidence but to say in as compact a form as possible how we have approached and arrived at our decision, so that the winner will know why he has won and the loser will know why he has lost.  We therefore recite the facts which are in our view pertinent to our decision.”

	We have to say that this is a case where, at no stage, have we been assisted by the Applicant’s representative pointing to particular parts of the decision and saying, “that discloses an error of law”.  The attack has been a far more global one; wide reaching allegations of perversity have been made.  We must make it clear that we are not here to re-hear the case.  We are only here at this stage to say, “on the grounds of appeal is there an arguable point of law?”.  We have not found any matter that has been put to us where we can say, “this is an arguable point of law”.

	This is a long Decision.  It is a comprehensive Decision.  The Tribunal have made it clear that they did not feel it appropriate or necessary in the circumstances, and we make no criticism of them for that, to recite every finding of fact and rehearse every piece of evidence that was before them.  In our view they had applied the correct test.

	At the end of the day, this appeal is an attempt to get us to say that the Industrial Tribunal should not have found the facts that they did.  The Industrial Tribunal is a fact finding body.  We are not.

	In our view this is not a case where the matter should proceed to a full hearing, because there is no arguable matter of law that has been identified and disclosed to us in the arguments that have been put before us.  The appeal is therefore dismissed.