Appeal No.	 EAT/1008/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 February 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR R JACKSON
MR K M YOUNG CBE

MR T L WELLAPPILI	APPELLANT

THE HIGHWAY AGENCY & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

	HIS HONOUR JUDGE CLARK:	The Appellant, who is of Sri Lankan origin, has been employed by the Highways Agency and its predecessors (the Respondent) since March 1979.  He is a Chartered Civil Engineer with a masters degree in bridge engineering.  Initially he worked in the bridges department and was later transferred to the tunnels division.

	He presented two Originating Applications to the Employment Tribunal.  The first, on 1 November 1996 complained of direct racial discrimination, the second, on 23 July 1997 alleged racial discrimination and victimisation under the 1976 Act.

	The complaints were consolidated and heard by an Employment Tribunal sitting at London (South) over 7 days.  By a reserved decision with extended reasons dated 10 June 1998 both complaints were dismissed.  Against that decision the Appellant now appeals.  His first complaint related to his 1995/96 appraisal; the second to his 1996/97 appraisal.  The Tribunal considered a wealth of evidence, both oral and documentary over the course of the hearing.  Where there was a conflict of evidence the Tribunal preferred that given by the Respondent’s witnesses to that of the Appellant.   They found:

	(1) that there was no less favourable treatment of the Appellant in the criticisms which were made of his skills and abilities, which criticisms were justified.  He was not treated differently from others of different racial origins.

	(2) there was no victimisation.  He was not treated less favourably in relation to the second appraisal as a result of his earlier complaint.

	In this appeal the Appellant has applied to adduce further documentary evidence before us. These are documents which relate to the period prior to 1 March 1995.  A Chairman, Mr D N Milton, sitting on 19 June 1997 directed that at the substantive hearing no complaints prior to 1 March 1995 would be considered.  There was no appeal against that order.  Accordingly the documents now sought to be put before us were excluded at the substantive hearing under appeal today.  We shall not in these circumstances receive them in evidence before us.

	In his address to us Mr Wellappili has sought to establish, by reference to the documentary evidence before the Employment Tribunal, that the Tribunal was wrong to accept evidence given by the Respondent’s witnesses below, and in not drawing inferences adverse to the Respondent from the evidence on which he relied.  He has taken us to examples today.   He contends that the Tribunal exhibited bias in reaching the conclusions which it did.

	In our judgment these submissions are wholly misconceived.  As we endeavoured to explain our jurisdiction is limited to correcting errors of law.  We cannot carry out a general review of the factual issues which arose below or retry those issues.  That is effectively what we are being asked to do in this case.

	It is clear to us, from paragraph 13 of the Tribunal’s reasons, that the Tribunal was alive to the difficulty faced by any Applicant in a discrimination case to prove his case.  It will usually be a matter of inference.  This Tribunal saw and heard the witnesses over 7 days; it considered the voluminous documentary evidence, at the end of that process it found that the Appellant had wholly failed to substantiate his claim.  That is not bias.  It is the exercise of judgment; one to which this Tribunal was entitled to come.  There is no error of law made out in this appeal and accordingly it must be dismissed.