The ET had found that the claimant had been dismissed unfairly but had dismissed the race discrimination claims as he had not established a case such that the burden of proof shifted to the employer and that he had failed to identify a comparator. In the EAT, where he was now represented by counsel, six points were raised including failing to make findings of fact, making the wrong conclusions about the failure to find a comparator and failing to account for the unfair treatment of the claimant. The EAT rejected all of the points.

In this application, the claimant was again representing himself and he broadly repeated the submission to the EAT but also sought to raise fresh evidence. Richards LJ rejected that submission, as the evidence could have been brought before the ET, and dismissed the other grounds. In particular, he notes that it cannot be said that

"because matters were not specifically mentioned in the reasons given by the EAT, they must have been left out of account or that there must have been a failure to consider them.  The position is that the reasons given by a court or tribunal do not have to cover all matters.  They need only deal with the principal features of the arguments advanced.  Brevity is generally a matter of commendation rather than a ground of concern;"

___________________________

Case No: A2/2009/1891
Neutral Citation Number: [2010] EWCA Civ 276
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE SLADE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 4th March 2010

Before:

LORD JUSTICE RICHARDS

• - - - - - - - - - - - - - - - - - - - -
  

Between:

**MR TAN DHILLON (Appellant)

• and -
  

BAKER T/A SANOFI AVENITS PHARMA APPLICATION (Respondent)**

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT DID NOT APPPEAR AND WAS NOT REPRESENTED

• - - - - - - - - - - - - - - - - - - - -
  

Judgment

(As Approved by the Court)

Crown Copyright©

**Lord Justice Richards:
**1. Mr Dhillon applies for permission to appeal against a decision of the Employment Appeal Tribunal ("EAT") dismissing his appeal against a decision of an Employment Tribunal ("ET").

1. Mr Dhillon was formally employed by the respondent company.  He was given a final written warning in March 2007.  In April and June 2007 he brought claims for race discrimination which he subsequently withdrew.  In July 2007 he was dismissed for a further incident of misconduct.  He brought a claim to the ET for unfair dismissal, race discrimination and victimisation.  At that time he was acting in person, which was plainly very difficult for him, in relation to a matter that took five days of hearing and where the employer was represented by counsel.

1. The ET found that he had been dismissed unfairly, holding that the final written warning had been unreasonable and that but for the warning the employer would not have dismissed him for the further incident of misconduct.  However, the ET dismissed the claims of race discrimination and victimisation.

1. In relation to race discrimination the ET found that Mr Dhillon had not established a prima facie case which might cause the burden of proof or of persuasion to shift to the employer.  In particular, he had failed to identify a satisfactory comparator so as to show that a white comparator in comparable circumstances would have been treated more favourably.

1. The unsuccessful appeal to the EAT related to the dismissal of his claim of race discrimination, as does the application for permission to appeal to this court.

1. In the EAT he was represented by counsel, who settled amended grounds of appeal raising six points.  They were, in summary, that the ET erred in law because: 1) it failed to make primary findings of fact about alleged racism on the part of managerial staff, in particular a man by the name of Mr Betson; 2) it was not entitled to conclude, and to give weight to the conclusion, that the employer treated negligence more leniently than deliberate misconduct on the part of an employee; 3) it wrongly considered first whether there was an appropriate comparator, rather than whether there had been race discrimination; 4) it wrongly concluded that, because Mr Dhillon had been unable to identify an actual comparator, he had failed to show a hypothetical comparator; 5) it was wrong in the characteristics that it required of the comparator, in particular in saying that the comparator had to be someone who was already subject to a final written warning; 6) it did not take into account the unfair treatment of Mr Dhillon and the employer's lack of explanation as to why he had been unfairly treated.

1. In the course of its judgment the EAT considered each of those points and gave reasons for rejecting each of them and dismissing the appeal.  For the purposes of the application to this court, Mr Dhillon is again acting in person.  His grounds of appeal extend to 22 paragraphs.  He has submitted a closely typed 18-page skeleton argument.  I am not going to attempt to set out all the arguments advanced.  To a substantial extent they comprise a repetition of matters raised before the EAT, though not always in exactly the same form, and they challenge the reasoning of the EAT in rejecting the grounds of appeal advanced before it.  They include the following (though these are not in the same order as they appear in his skeleton argument or were addressed in oral submissions): 1) the EAT failed to factor the unfairness of the dismissal into its assessment of race discrimination; 2) the EAT misdirected itself by focusing on Mr Betson and the final warning when there was evidence that the employer's management as whole made racist comments on many occasions; 3) the EAT failed to take into account a list of white comparators whose misconduct had not been the subject of similar disciplinary proceedings and who had therefore been more favourably treated; 4) the EAT was wrong to find an issue estoppel, arising out of the withdrawal of the earlier claims, in respect of an allegation that the final written warning was given on racial grounds -- in particular it should have made an exception, as it is entitled to do, to the rule about issue estoppel, reliance being placed, amongst other matters, on the conduct of the employer in allegedly misleading and lying to both tribunals; and 5) the EAT was wrong to hold that the failure to give adequate reasons on the question whether an appropriate comparator had been identified had not been raised in the grounds of appeal and that Mr Dhillon therefore needed an application to amend an application (which the EAT refused).

1. In addition, in his appellant's notice Mr Dhillon applies for permission to submit a further statement and give oral evidence to clarify the role of the employer's management in his dismissal, although he has not, I believe, provided a draft of the precise additional evidence he would wish to give.

1. Laws LJ, on consideration of the papers, took the view that the EAT was right for the reasons it gave.  There was no basis on which the proposed fresh evidence could properly be admitted.  He therefore refused permission to appeal.

1. I have heard oral submissions from Mr Dhillon emphasising points in the written material.  He has been very articulate in his presentation of the case and I am grateful to him for the restrained and helpful manner in which he made his submissions.  Those submissions have helped me to gain a better understanding of his concerns about the working environment at the respondent company, but I regret to say that they have done nothing to persuade me that Laws LJ was wrong in the conclusion he reached on consideration of the papers.

1. The receipt of fresh evidence on an appeal is an exceptional course subject to restrictive conditions.  I am satisfied that those conditions are not met in this case, not least because there is no reason why the evidence should not have been given to the ET and there is nothing to show that, if given, it would probably have had an important influence on the result of the case.

1. As to the first of the complaints advanced in relation to the EAT's decision, as I have summarised them, it seems to me that that the EAT did consider the unfairness of the dismissal in considering the appeal on the race discrimination issue, and in my judgment it provided sufficient and sound reasons why the ET had not erred in its approach to those matters.

1. As to the second main area of complaint, the focus on Mr Betson was entirely understandable because he had been identified as a key player in the submissions advanced on behalf of Mr Dhillon.  The EAT gave what appear to me to be valid reasons why the point was irrelevant to the issues that the ET had to determine.  I am not persuaded that there is any arguable legal error in the EAT's analysis.

1. As to the third area of complaint, there was no failure by the EAT to take into account the list of comparators.  It is clear that the ET had considered the examples given by Mr Dhillon.  What the EAT did was assess the adequacy of the ET's reasons in relation to the issue and although, as it made plain, the EAT would have liked to have seen more and clearer reasoning from the ET, it held that there was no legal error in any of the respects advanced by the counsel for Mr Dhillon.  Again, I see no arguable legal flaw in the EAT's analysis.

1. As to the fourth area of complaint, it seems to me that the EAT was right on the question of issue estoppel and that it cannot be said that there were exceptional features of this case that ought to have compelled the EAT to depart from the normal rule concerning issue estoppel.

1. As to the fifth area of complaint, I do accept that the point about lack of reasons in the ET's analysis was raised in Mr Dhillon's original grounds of appeal --  grounds, as I understand it, settled by him -- and the EAT was in error in saying to the contrary.  But the point was not raised in the amended grounds settled by counsel, and it was those grounds on the basis of which the case before the EAT proceeded.  In the circumstances, the EAT was, in my view, entitled to hold that amendment or further amendment to the grounds was required to enable the point to be advanced at the hearing before the EAT.  Equally, it was entitled to refuse the late amendment sought for that purpose.  That was an exercise of discretion with which the Court of Appeal would not possibly interfere.

1. Generally, it cannot be said that, because matters were not specifically mentioned in the reasons given by the EAT, they must have been left out of account or that there must have been a failure to consider them.  The position is that the reasons given by a court or tribunal do not have to cover all matters.  They need only deal with the principal features of the arguments advanced.  Brevity is generally a matter of commendation rather than a ground of concern; nor do I accept that the speed with which the EAT produced its judgment in this case ought to give rise to any concern as to the adequacy of the attention the EAT gave to the case or to the underlying evidence.

1. I have not dealt with everything raised in the material before me, but I have already said more than is strictly necessary on an application for permission.  I am satisfied that an appeal would have no real prospect of success in establishing material legal error on the part of the EAT.  There is no other compelling reason why an appeal should be heard, and accordingly the application for permission must be refused.

Order:  Application refused