Appeal No.	 EAT/391/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 2000

Before
HIS HONOUR JUDGE WILCOX
MR P DAWSON OBE
MR J C SHRIGLEY

MR SIDNEY XAVIER	APPELLANT

THE HIGHWAYS AGENCY OF THE DOT/DETR	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S SINGARAYER
Representative

JUDGE WILCOX:

1.	We have considered with very great care the careful written submissions contained in the Appellant’s skeleton argument that was filed with the court, thus giving us the opportunity to read in advance and in the light of the submissions this morning made orally, to consider the force and impact of it.  We are grateful to the Appellant and the Advisor, who has presented succinctly and persuasively, the arguments before us.  One can characterise the appeal grounds as to one ground of mixed law and fact, and the others are essentially matters of fact.  I go straight away to the principle ground of appeal, I say principle because it was the one that appears first in the skeleton and the grounds of appeal and is the one that is focused upon, we think properly, if we may say so by the Applicant on behalf of the Appellant and it is this.  Who was in fact the employer of the Appellant?  Was it the crown?  Was it the Highways Agency?  As a subsidiary question, does it make any difference?  

2.	Yes, it is submitted on behalf of the Appellant it does because the Tribunal will have a difference of approach, depending whether it goes down the road of s.32 of the Race Relations Act 1976 or s.75.   We have considered that argument.  It does appear to us to be flawed because really, what the impact of s.32 is said very properly that: Anything done by a person in the course of employment shall be treated for the purposes of this act, as done by the employer as well by him.  Whether or not it was done with the employer’s knowledge or approval of acting industrial common sense, and common sense generally, s.75 merely applies that to the relationship between the crown and its employees.  It does not it seems to us avail the Appellant in this case save, as to the second limb of the argument that was urged.  It was submitted that if one were to look at the crown as a whole then the scope of evidence, that would have been considered by the Tribunal or ought properly to be considered in any event, would be very much wider.  That I think is the thrust of the argument put to us.  
3.	On the face of it, it has an appeal.  But when we come to examine it, we must examine it in the light of what actually was the case presented to the Tribunal.  What actually were the considerations given by the Tribunal to the case as framed by the Appellant?  It seems to us that examining the extended reasons, that the Tribunal did not confine itself to discrete questions as to the history of the employment, whilst the Appellant was in the highways agency.  In fact it went to matters that preceded that, namely to when he was in the PSA.  There was an overlap of course.  He was transferred as an overlap, but he had complaints that were substantial about his reporting, about how people treated him, named people.  

4.	There were incidents that were particularised by him and about which he led evidence before the Tribunal.  The Tribunal also considered the evidence of the incidences that spanned the period when he was within the Highways Agency.  It seems to us that although the Tribunal did come to a conclusion that his first line employer was in fact, the Highways Agency, that being a discrete body, none the less they did admit evidence as to what had happened before that employment.  Indeed the whole complained of employment history of the Appellant in relation to his complaints of discrimination.  They also applied a further test the Nagrangan decision of the House of Lords.  Now it is right, as has been submitted in a documentary form and we have considered this that when one examines that, it does not use the terms as I recall it ‘of institutional racism as such.’  

5.	But it echoes in the finding or observations of McPherson J in the Lawrence enquiry and it’s a wide and generous test.  When I say generous, I mean generous in its width, it properly should be a wide and generous test that was something we find was very much in favour of the Appellant.  If it could be said and we do not think properly that it can, but if it could be said that they erred by applying that test as well, then the only beneficiary was in fact the Appellant.   But we look at the reasoning that the reasoning in the extended reasons, particularly, at paragraph 40; they recite their findings as to the particular incidents complained of by the Appellant.  Thus they consider institutional racism and they consider his particular case.  They did not confine themselves, therefore to that discrete period when he was within the employment of the Highways Agency alone.  

6.	It has been submitted with force and persuasion on behalf of the Appellant that findings by the Tribunal were perverse findings of fact.  The test of course is not as to individual facts, it is whether on the whole of the evidence it can be demonstrated that the findings that there was or was not discrimination was a perverse finding, upon the evidence as a whole.  We stress that a Tribunal is an Industrial jury; they see and here the witnesses.  

7.	They have a very wide scope as to their findings of fact, unless it is absurd or wholly unsustainable on the face of the record, there is no warrant for us to interfere in matters of fact.  Of course, if there is defficiences of findings, there are gaps whereby an Appellant goes away not knowing what the reasons are for a decision that may be a cause for intervention.  That is not the case here because we find that this was a very closely reasoned decision.  As we say, going outside strictly matters that they needed to, but in so doing wholly benefiting the Appellant in following that route.  I come back to where I started these observations.  What about the principle ground of appeal?  We find that there was sufficiency of fact before them to warrant them coming to the conclusion that the Highways Agency was a discrete employer.  We have considered the matters that have been closely drawn to our attention in writing about that too.  

8.	But if we were wrong about that we have to ask ourselves this question: Would the case have been developed in any different manner?  Well, I have already rehearsed the matters that the Tribunal considered the wider test of Niagrana, the specific allegations relating not only to the Highways Agency employment, but going back in a period of time. It seems to us, that the whole of the evidence that could have been adduced were the Respondent, nominally the Civil Service the outcome would have been exactly the same. We can understand the Appellant’s disappointment with our findings.  We have considered the matter very carefully but we find that there is no arguable matter, which should go to a full Employment Appeal Tribunal.  We therefore dismiss the appeal.