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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Murgai v Home Office Immigration & Nationality Directorate [2000] UKEAT 1365_97_2707 (27 July 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/1365_97_2707.html Cite as: [2000] UKEAT 1365_97_2707 |
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At the Tribunal | |
On 18 July 2000 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MR H SINGH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | THE APPELLANT IN PERSON |
For the Respondent | MR R LEMON (of Counsel) The Treasury Solicitor Employment Team Room 544 Queen Anne's Chambers 28 The Broadway London SW1H 9JS |
JUDGE PETER CLARK: We have before us two appeals brought by Mr Murgai, the applicant before the Employment Tribunal sitting at London (South) under the chairmanship of Mr C A Carstairs. The first (EAT/1365/97) is an appeal against that tribunal's decision promulgated with extended reasons on 21st October 1997 ['the original decision']. The second (EAT/866/99) is brought against that same tribunal's review decision promulgated with extended reasons on 1st June 1999. This has been something of a long-running saga and we should start by setting out its history.
History
"64. 1993-4 ASR. The Tribunal did not accept that this complaint had been made out on the facts. The Tribunal considered Mr Sims to be a truthful witness and accepted that he had set out his views in the report taking into account the information he had received from Mr Laxton. The Tribunal concluded that a white person would not have been treated differently. The Tribunal accepted that the failing identified by Mrs Horton were the result of Mr Sims' inexperience. It appears that ideally Mr Sims line managers should have realised the extent of the short-comings of his report but the Tribunal noted that they considered the report to be a genuine reflection of his views and that the markings were correct. Indeed, Mrs Horton, while critical of the comments, did not suggest that the markings themselves were incorrect. Furthermore, the Tribunal noted Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, marking him "fitted for promotion" which view was endorsed by a promotion Board which did indeed promote Mr Gor. Accordingly, the Tribunal found that there was no discriminatory treatment in respect of this report on the ground of race.
65. Even if the Tribunal had believed that there was both discriminatory treatment and a racial difference, the Tribunal believed the explanations given by Mr Sims, Miss Proctor and Mr Atherton set out in the evidence to the effect that Mr Murgai was perceived to have had, at best, what could be characterised as an average year and that this was the genuine belief of Mr Sims; the Tribunal would not have found that explanation to be either inadequate or unsatisfactory in the circumstances of Mr Murgai's performance to some extent before Mr Sims managed him but more particularly after Mr Sims became Mr Murgai's manager."
"1. That the matter is remitted back to the same Employment Tribunal with a direction that they review their decision promulgated on the 21st day of October 1997 on the following basis:-
There being agreed facts as follows:-
That Mr Gor had been listed for promotion without interview in October 1994 and had transferred on promotion in June 1995 before Mr Sims had written a report on him.
The parties consent to an order that the case be remitted to the same Employment Tribunal for consideration of the impact of the agreed facts on the conclusions noted in the last two sentences of paragraph 64 of the Extended Reasons and whether it would effect the decision
And for this purpose the Employment Tribunal to be at liberty to receive further evidence from the parties and in particular from Mr Sims in respect of Mr Gor, the reports leading to his promotion and the report by Mr Sims in respect of Mr Gor and the Appellant to be at liberty to cross-examine thereon and the Respondents to re-examine thereafter.
The parties also to be at liberty to make submissions to the Employment Tribunal on the impact of the same on the credibility of Mr Sims and on the decision
2. That the appeal is stayed with liberty to appeal within 42 days of any new decision or order of the Employment Tribunal. If no such application is made within the specified time the appeal will be dismissed without further hearing."
(1) that the evidence given by Mr Sims on the first occasion regarding his report on Mr Gor was accurate, whatever may have been the tribunal's understanding of the position, in part based on a submission made to them by Mr Lemon in his closing address.
(2) that Mr Sims had not intentionally sought to mislead the tribunal at the original hearing.
(3) that the Gor report evidence was of minimal significance.
(4) that they had no reason to alter the original assessment of Mr Sims' credibility.
In these circumstances they confirmed their original decision.
The Appeals
(1) The Gor report. This deals with grounds 1 and 2 of the first appeal and the second appeal against the review decision.
(2) Mr Sims' inexperience. First appeal, ground 8.
(3) Mr Sims' credibility. First appeal, ground 9.
(4) Mr Atherton. First appeal, ground 10.
As to the first and second grounds of the first appeal it is submitted by the appellant that in reaching the conclusion that Mr Sims had not discriminated against the appellant on grounds of his race in writing the 93/94 ASR on him, the tribunal took into account a material finding of fact which was unsupported by evidence. That is an error of law. See British Telecommunications plc v Sheridan [1990] IRLR 27; East Berkshire Health Authority v Matadeen [1992] ICR 723, 734C.
The consent order
The review decision
Mr Murgai seeks to challenge the tribunal's finding of fact in paragraph 64 of the original decision reasons that the failing in the 1993-1994 ASR prepared by Mr Sims on the appellant, identified in an internal report prepared by Mrs Horton, were due to Mr Sims' inexperience.
"It is accepted by all that Mr Sims was an inexperienced officer."
Mr Murgai's submits that Mr Sims lied on oath as to the Gor report. For the reasons earlier given we are satisfied that the tribunal was entitled to conclude, both in the original decision and the review decision, that Mr Sims was a truthful witness. Questions of credibility are for the Employment Tribunal, not for us.
Mr Murgai relies upon a point taken on his behalf on this final ground of appeal, prepared by Counsel then representing him, Mr Clive Rawlings. The way the point is put is that because Mr Atherton was one of the two countersigning officers to the ASR prepared by Mr Sims on the appellant and then later acted as an independent observer during the ASR grievance pursued by Mr Murgai, that amounted to unfairness from which the tribunal ought to have inferred racial discrimination.
Conclusion