Appeal No. EAT/0418/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 2002

Before
HIS HONOUR JUDGE J R REID QC
MR I EZEKIEL
MR A D TUFFIN CBE

MR G ARROYO-VALENCIA	APPELLANT

1) UNITED ROAD TRANSPORT UNION	RESPONDENTS
2) MR MICHAEL BILLINGHAM
3) MR DAVID HIGGINBOTTOM

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	
For the Respondent	MS HEATHER WILLIAMS
(of Counsel)
Instructed by:
Messrs Russell, Jones & Walker Solicitors
Brazenose House West
Brazenose Street
Manchester
M2 5AS	

JUDGE REID QC

1	This is the Full Hearing of an appeal by Mr Arroyo-Valencia against a decision of an Employment Tribunal held at Bedford.  The hearing took place on 11, 12 & 13 September 2000, 29, 30 & 31 January 2001 and the reserved decision, dated 14 February 2001 was sent to the parties on 15 February.

2	By the unanimous reserved decision of the Tribunal it was held that Mr Arroyo-Valencia’s claim failed.  This was a claim against his Union and two of the officers of that Union alleging racial discrimination.

3	The grounds of appeal, on which the matter was allowed to go to a full hearing, were only two of very numerous grounds that Mr Arroyo-Valencia had been anxious to advance and they were grounds which saw the light of day in outline submissions prepared for the purpose of the Preliminary Hearing by Mr Kibling of Counsel who on that occasion appeared for Mr Arroyo-Valencia under the ELAAS Scheme.

4	The grounds were in these terms:

2	“The Employment Tribunal erred in law in that:

(i)	(having made its findings of fact) it failed to properly consider or apply the provisions of Part I and Part II of the 1976 Act which requires a series of questions to be answered in determining a claim for direct race discrimination, and/or it failed to give a reasoned decision (“the statutory consideration issue”);
(ii)	(ii)	if failed to properly consider or apply Section 11 (3) (c) of the 1976 Act as to what amounts to a detriment in law (“the detriment issue”);

At the Preliminary Hearing that latter point was described as being “a subsidiary point”

5	The crystallisation of those two points, which are expressed in very general terms, was that it was said that the Respondents had discriminated against Mr Arroyo-Valencia on the grounds of his race in two respects.  The first was that they had failed to represent him at disciplinary proceedings, which led to his dismissal and the second was that they had failed to represent him at Employment Tribunal proceedings, which were indeed the proceedings with which this Tribunal is concerned, or to give him any advice about that.

6	In the course of giving the decision on the Preliminary Hearing I said this:

11	“That issue does not appear to have been addressed by the Tribunal.  They do not appear to have identified differences in treatment or to have then considered, in particular in relation to this matter, the basis of the difference in treatment.  It may very well be that at a Full Hearing it will become clear that either this point was never raised before the Tribunal, or that on a proper reading of the decision the matter was disposed by the decision as it stands but it does appear to us that there is an issue which should be fully investigated at an Inter Partes hearing.”

7	We have now had the Inter Partes hearing in the absence of Mr Arroyo-Valencia, who has not appeared but who has submitted a document to us described as ‘Appellant’s Final Outline Submissions’ for our consideration.  I regret to say that it does not appear to be of any assistance to us in considering points which are to be canvassed and have been canvassed today.  We are, however, very grateful to Counsel, Ms Williams, who has appeared on behalf of the Respondents to the appeal and who has taken us very fairly through the matters which we should consider.

8	We can, I think, take the appeal very shortly.  When one looks at the Originating Application and the details given under it, and the further and better particulars that were given, it is quite apparent that neither of these points was a point which was in issue before the Tribunal.

9	The Tribunal had before it the Originating Application.  It had made a Direction that the only matters to be considered would be the complaints of discrimination contained in the Originating Application or in particulars given before 30 June 2000.

10	Some further particulars were given by a letter from an organisation describing itself as the Employment Law Advice Centre Ltd, which then purported to represent Mr Arroyo-Valencia, by a letter dated 28 June.  Those particulars do not deal with the matters sought to be raised.

11	Put in very brief form, Mr Arroyo-Valencia was not happy with Mr Billingham as his representation from the Union.  That was in circumstances where the Union was in a difficult position because the dispute which had arisen between Mr Arroyo-Valencia and his employer arose out of a complaint of harassment against Mr Arroyo-Valencia by another Union member, a Ms Young.

12	Mr Arroyo-Valencia was unhappy about the fact that the Union appeared to have a conflict of interest but the Tribunal investigated that and concluded that the Union had conducted itself properly and that a sensible division of labours had been arrived at by Mr Billingham and a Mr Abrahams to ensure that both Mr Arroyo-Valencia and Ms Young received appropriate and independent advice, albeit that that might not have been the impression Mr Arroyo-Valencia received.

13	Mr Billingham, the Tribunal held, was placed in a difficult situation which he resolved to the best of his ability and it is clear that Mr Arroyo-Valencia was not happy about Mr Billingham continuing to represent him.

14	What then happened was that he applied to the Union to have different representation but that application for a change in representation was turned down, with the result that Mr Arroyo-Valencia took the view that he should not be represented by Mr Billingham.

15	He failed to attend a meeting arranged by Mr Billingham to discuss Mr Arroyo-Valencia’s defence to the disciplinary claim being brought against him as a result of Ms Young’s allegation of harassment.  He also failed to respond to the letter written after that meeting by which Mr Billingham said to him that since he had not attended the meeting Mr Billingham did not propose to attend the disciplinary hearing.

16	Suffice it to say that the Tribunal did not consider whether there was any difference in treatment between Ms Young, who was represented in disciplinary proceedings, and Mr Arroyo-Valencia, who was not, because it was never a complaint of Mr Arroyo-Valencia’s that this was an act of discrimination against him by the Union and that it was on the grounds of his race.

17	The Tribunal, I should make it clear, found that Mr Arroyo-Valencia had indeed been treated more favourably than other members in that the Union had assisted him during the investigatory stages of the disciplinary procedure of his employers, in circumstances where they did not normally assist an employee.

18	There was, therefore, no basis on which the Tribunal could find, there being no complaint, there had been any difference in conduct by the Union as between Mr Arroyo-Valencia and Ms Young, so far as representation at disciplinary proceedings was concerned, or that there was any detriment, or that any difference was on the grounds of race.

19	The second point that Mr Kibling crystallised before the Preliminary Hearing related to the Union’s failure to assist Mr Arroyo-Valencia in making an Employment Tribunal claim.  So far as that is concerned, again, it does not appear to have founded any complaint before the Employment Tribunal.

20	It was referred to in passing in unchallenged evidence, from Mr Billingham, which was simply to the effect that the Union did not advise Mr Arroyo-Valencia about any possibility of an Employment Tribunal claim because the Union’s involvement ceased before Mr Arroyo-Valencia’s dismissal and therefore, at that stage, any question of advice about going to an Employment Tribunal would have been premature.

21	By contrast, after she had left her employment Ms Young approached Mr Billingham and asked for assistance in bringing a claim before an Employment Tribunal and the Union gave her assistance.  Initially, on the facts, it appears Mr Billingham filled in Box 11 to commence the proceedings and thereafter another member of the Union staff represented her.

22	But the Tribunal was not asked to find whether there was a difference in treatment in relation to this.  Still less, whether it was on the grounds of race or whether thereby Mr Arroyo-Valencia suffered any detriment because it did not form part of the particulars of his complaint.

23	In those circumstances the appeal, so far as it survived to a full hearing, falls to be dismissed.  We appreciate that Mr Arroyo-Valencia is dissatisfied with the limited extent to which he has been allowed to prosecute this appeal for full hearing, that he feels that he has been subject to discrimination, and that he would have wished to conduct, in effect, a re-investigation of the entirety of his complaint from the beginning.  That, however, is not something which it was open to him to do before this Employment Appeal Tribunal.
24	So far as matters are concerned before us, all that we can say is that the appeal, now that we have had the opportunity of considering the entirety of the grounds allowed to go forward with the assistance of representations on behalf of the Respondent, is without foundation and is therefore dismissed.