Appeal No. PA/0260/03 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 September 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
(SITTING ALONE)

MR N WEERARATHNA	APPELLANT

BRITISH BROADCASTING CORPORATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPEAL – EX-PARTE

Revised

	APPEARANCES

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant	

HIS HONOUR JUDGE J McMULLEN QC

1	This is an appeal brought by the Applicant in proceedings which took place before an Employment Tribunal sitting at London (Central), Chairman Mr D Burton, on 27 November 2002.  The Applicant was represented by a friend, the Respondent by Counsel.

2	Written submissions have been put in and I am hearing the case pursuant to Rule 3 (10) of the Employment Appeal Tribunal Rules 2001.  The Registrar has decided that the case discloses no question of law and the EAT has no jurisdiction pursuant to section 21 of the Employment Tribunals Act 1996.

3	The Applicant made four claims before the Employment Tribunal, namely unfair dismissal, direct race discrimination, indirect race discrimination and victimisation.  The Employment Tribunal found against him on all his claims and ordered him to pay the Respondent’s cost assessed at £9,898.33.  Against those decisions the Applicant appeals.

4	His grounds of appeal are set out in four paragraphs.  It is contended that there was no opportunity to cross-examine certain witnesses and there is a challenge to the depiction of the Applicant as committing gross misconduct.  Written submissions supporting those grounds considerably enhance them and pay reference to a number of authorities.

5	The summary of the Employment Tribunal’s reasons can be found at paragraph 44 which encapsulates both its reasoning on the substantive points and its reasoning for its award of costs:

44	“We note that the Applicant bought four heads of claim to this Tribunal.  The first was dismissed because it was hopelessly out of time and was only introduced into these proceedings more than two years after the events complained of.  The second was dismissed on the basis that not a word of evidence was given to support it.  The third was dismissed by reason of the fact that there was no evidence to support the allegation underpinning the claim and that the Applicant had, once again only raised it in the last minute when every opportunity had been given to him by the Respondents in the course of their extensive internal procedures to raise matters of that sort but that he had failed to do so.”

Given that the Tribunal has found the Applicant lost his case because he failed to bring evidence, no question of law arises in my judgment.

6	The Tribunal recalled that the Applicant had had representation at a very sophisticated sequence of hearings in the Respondent’s procedure, by his trade union representative, and had been previously represented by solicitors and counsel.  The Tribunal was shown a letter indicating that those solicitors had formed the view and advised the Applicant that he had no prospect of success.  To continue with the proceedings in those circumstances meant that he was at risk of having his claims rejected.  That was the case.  The Tribunal dismissed his claims because there was no evidence to support them.  That is a matter purely of fact.

7	The Tribunal then considered that to bring such proceedings in the light of the advice he had been given, and to change the nature of the case between the previous and the substantive hearings, was unreasonable.  The exercise of discretion in the award of costs, although it is unusual, cannot in my judgment be faulted in this case as being wholly wrong in principle.

8	This case has now been considered by a judge who made a recommendation to the Registrar, by the Registrar who has considered the papers and made her decision under Rule 3 (7) and now by me with a fuller exposition of the material by way of written submission.  My conclusion is that there is no jurisdiction to hear this case.  I dismiss the application. No further action will be taken and the appeal is dismissed.