Appeal No. EAT/908/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4th October 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR A D SCOTT

	MS E C SYMONS

MR L BREWSTER	APPELLANT

LONDON BOROUGH OF NEWHAM & OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 	ON BEHALF OF THE 	APPELLANT

	MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr L.W. Brewster against the order made by the Industrial Tribunal in proceedings brought by him against the London Borough of Newham and three other respondents.

	The proceedings were started on 25th February 1994 by an originating application, complaining that he had been discriminated against contrary to the Race Relations Act 1976 in connection with an application by him to the Education Department of the London Borough of Newham for a vacant position which had been advertised. The post was that of an Assistant Education Officer Special Needs.

	The case was contested by the Council and by the other respondents. For the purposes of this preliminary hearing it is only necessary to refer to the Notice of Appearance filed by the Council. They stated as their grounds of resistance, that they had adopted a policy that the applicant was not fit to hold office in the London Borough of Newham, and that his race did not form any part of the decision not to consider him for employment. Their case was that he was refused employment on the ground of reputable reports concerning misconduct by him, in particular sexual harassment and intimidation when he was employed by the London Borough of Hackney. The ground of resistance is expanded by further details which is not necessary to repeat.

	The case came before the Industrial Tribunal for a pre-hearing review. The order made on the pre-hearing review and sent out to the parties on 22nd September 1994 was that the Tribunal considered that the claim put forward by him, that he was not offered the post of Assistant Education Officer because of his race and had been discriminated against, had no reasonable prospect of success. They set out in their reasons for this conclusion replies to the Race Relations Act questions, reference to his previous work record, and his references. They also referred to the position of the other three respondents who were only acting in the course of their employment.

	The Tribunal made an order that the initial consideration of the matter should be adjourned to enable Mr Brewster to attend to give evidence so that the amount of deposit could be decided. The Tribunal made a further order on 27th January 1995, in which they repeated their views of his chances of success and ordered that he should pay a deposit of £50.00 not later than 17th February 1995 as a condition of being permitted to take part in the proceedings.

	Mr Brewster appealed against the order that he should pay a deposit, and that a costs warning was given to him and complained of them failing to set up a pre-hearing review as stated in their official notice, and refusing his application for a review of the decision. His appeal was submitted in a form of a letter on 17th February 1995. The letter of appeal concluded that detailed grounds will follow shortly. No further documents have been submitted. 

	The position today is that Mr Brewster was notified by letter dated 11th September 1995 that his appeal would be listed for a preliminary hearing before this Tribunal this afternoon. There was no response to that letter from Mr Brewster. He was asked to indicate whether he would be attending and whether he would be represented, but he did not respond. He has not attended today. Enquiries have been made to see if he can be contacted on the telephone, but there is no information about a telephone number.

	We have decided, having read the papers, to deal with this case in his absence. The purpose of a preliminary hearing is to decide whether the appeal raises an arguable point of law. We are unable to detect in the papers that have been submitted any point of law. The position on a pre-hearing review is that the Tribunal makes an assessment of the prospects of success on the basis of the information before it, and then exercises its discretion in relation to whether a deposit should be ordered and if so, in what amount and what other matters should be recorded, such as a warning about a possible liability for costs. Mr Brewster is seeking to question the lawfulness of the exercise of that discretion. We can only question the legality of an exercise of discretion if it can be shown that there has been an error of principle in the way the discretion has been exercised, or that the Tribunal have reached a decision by ignoring relevant factors in the exercise of discretion, or taking into account irrelevant matters. It seems, on the material we have seen, that it was open to the Tribunal to conclude, on the material before it, that this was a case where it was proper to order the payment of a deposit of £50.00 and to issue a costs warning in relation to Mr Brewster's pursuit of this matter.

	We are unable to see any grounds on which we can interfere with this decision. There is no point in this case proceeding to a full hearing. We will therefore dismiss the appeal today.