Appeal No.	 EAT/948/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 November 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR J R CROSBY
MRS T A MARSLAND

MR J D'COSTA	APPELLANT

T & S STORES PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr S Soor (of Counsel)
ELAAS	
For the Respondents	NO APPEARANCE	

JUDGE WILKIE:
1	This is an appeal by Mr D’Costa against the decision of the Employment Tribunal sitting at London (North).  The decision being sent to the parties on the 30 June of this year the hearing having taken place on the 11 June of this year.  

2	In his claim he claimed explicitly of unfair dismissal, sex and race discrimination.  Those applications were dismissed by the Tribunal.  He also made a complaint of unlawful deduction of wages, and the Tribunal adjourned that application.  

3	Mr D’Costa was not legally represented before the Tribunal, although he did have the benefit of the assistance of Mr Blackman, a retired Industrial Chemist.  The Notice of Appeal which he put in against the decision of the Tribunal similarly, was not with the benefit of legal advice.  However, at this hearing he has had the benefit of Mr Soor of Counsel as part of the ELAAS scheme and, as always, he has enabled the points that can best be made on behalf of Mr D’Costa to be identified, and articulated in an impressive way and in a way which has been most helpful to us.  

4	The first point that he makes is that it was implicit in the detailed setting out of Mr D’Costa’s case appended to the formal parts of the IT1 that his complaint about his dismissal in addition to the other matters was a complaint of victimisation, he having in August of 1998, some two months prior to his dismissal, having submitted a grievance to the Respondent’s head office, interalia, on the grounds of sex and race discrimination.  

5	It is right to say that the Tribunal does not deal with the question of victimisation at all.  Mr Soor says that it is the duty of such a Tribunal to identify such a claim if it is made, even although implicitly, and in that plainly he is right.  However, it has to be said, that in considering that Ground of Appeal this Tribunal is entitled to look at the findings of fact, and the other conclusions of the Tribunal, in order to see whether there is any merit in the implicitly raised victimisation claim on the basis of the facts found on the evidence given.  

6	His other Ground of Appeal, as identified, is that in dealing with the question of unfair dismissal, the Tribunal correctly identified the issue it had to decide namely whether the dismissal was for a ground which would give rise to a right to complain of unfair dismissal, notwithstanding the fact that the qualifying period for unfair dismissal had not been satisfied.  

7	The ground which Mr D’Costa had put forward as satisfying that requirement was that he was dismissed for asserting a statutory right.  The statutory right was said to concern the quantity of pay which he had been receiving.  Mr Soor accepts that, in their reasoning, the Tribunal record Mr D’Costa as having said in reply to a specific question, that he was quite sure that the respondents were intending to pay all of the monies that were outstanding to him, it was merely a matter of a proper calculation and that two days before his dismissal he received a copy of his terms and conditions of his employment.  The Tribunal then concluded that, in those circumstances, they were unable to find that his dismissal could in any way be related to the fact that he was asserting statutory right.  Mr Soor says that while that may in some cases be a proper inferential basis for dismissing an application made on that ground, the Tribunal misdirected itself in that it assumed, that merely because an employer previously in breach, had either remedied the breach or was about to remedy the breach, a subsequent dismissal could not be for the reason that the employee had asserted a statutory right.  

9	Again as a matter of logic, that must be right because an employer might well be taken to task, remedy the breach, then secretly harbour a grievance and resentment of their own and subsequently dismiss the employee for having in the past asserted the statutory right.  

10	Mr Soor again very realistically accepts that the case, for unfair dismissal or for sex or race discrimination, or for victimisation identified his dismissal as the less favourable treatment.  On that basis he faces the problem that in evidence before the Tribunal, Mr D’Costa is recorded as saying:- 

“that the reason that he was dismissed was because there was a conspiracy to get rid of him.  The “louts” in Grove Hill wished him to be removed as he was too difficult a manager and was prepared to challenge the young people who came into the store and would not put up with their obscene language or their attempts to purchase alcohol underage.  For this reason they had ganged together to persuade the Respondents to dismiss him”.  

11	Mr D’Costa agrees that was evidence which he gave before the Tribunal.  Mr Soor, and indeed Mr D’Costa who also addressed us, indicated that whilst those words or something like it were said, it was still his primary contention that the reason or the principle reason for his dismissal was a reason of racial discrimination or victimisation, or because he had in the past asserted a statutory right.  

12	This Tribunal can only deal with matters on the basis of the material which is before us.  It is perfectly clear from what is said by Mr Soor on instructions, that the evidence recorded in the paragraph 7 of the Tribunal’s decision was evidence which was given by Mr D’Costa.  The matter of receipt of evidence and weighing the evidence given, is a matter for the Tribunal and therefore, it is not a matter which this Tribunal can adjudicate upon.  

13	Therefore, notwithstanding the fact that it may be that Mr D’Costa believed that the reasons for his dismissal were those which he had asserted in his claim the fact is that in the evidence, he is correctly recorded as saying that the reason for his dismissal was not one of those reasons but rather was this conspiracy, by the louts in Grove Hill to get rid of him, for reasons completely other than victimisation or race discrimination, or his having asserted a statutory right.  That being so, the Employment Tribunal was really forced to the conclusion to which it came and we can therefore see no arguable point of law to suggest that they came to the wrong conclusion and therefore, on those grounds we are constrained to dismiss this appeal at this stage.  This includes the implicit claim for victimisation.

14	Mr D’Costa made a further application which was on the grounds of sex discrimination which related to the failure of the company to promote him.  He pointing out that two women were promoted earlier than he was, even though they had less immediate service, though he acknowledged that they had worked for the company before.  Once again, the Employment Tribunal could only act on the evidence that was before it, and the evidence which they have recorded as being placed before it, was that Mr D’Costa accepted that the reason that he had not yet been promoted, was because the company had not yet got around to doing so.  Once again there was no evidential basis upon which this Tribunal could do other than, reject Mr D’Costa's application.  

15	Accordingly there is no reasonably arguable basis on which we can conclude this Tribunal either erred in law, or was perverse.  They were only acting on the evidence given by Mr D’Costa at the hearing itself.  Therefore we are constrained to dismiss this appeal at this stage.