In Extended Reasons, also dated 11 April 1996, (the reasons) running to some 38 closely typed pages, the Industrial Tribunal carefully set out their findings of fact; the issues and their conclusions on those issues. They dismissed both complaints for the reasons given. As to the first complaint, they made findings as to whether or not there had been less favourable treatment of the Appellant; where they found that there had been, they accepted the Respondent's explanation for such treatment, directing themselves in accordance with the guidance to be found in the judgment of Neill LJ in King v Great Britain China Centre [1992] ICR 516 , 528F - 529C. We find those principles accurately set out in paragraph 9 of the reasons.
Secondly, they considered the complaint of unfair constructive dismissal and found that there had been no dismissal. There is no appeal against that finding.
Finally, the Tribunal acceded to an application on the part of the Respondent for costs, and awarded costs in the sum of £275 against the Appellant.
The Appeal
The Appellant appeals against the Industrial Tribunal's findings that he was not discriminated against on the grounds of his race. Secondly, he appeals against the costs order.
Appeals to the Employment Appeal Tribunal
Appeals to this Tribunal from decisions of Industrial Tribunals lie only on a question of law. The Industrial Tribunals Act 1996 Section 21(1).
It follows that it is not our function to retry questions of fact. That is the exclusive province of the Industrial Tribunal which saw and heard the witnesses, in this case over many days.
Perversity
The grounds of appeal, developed by the Appellant's wife, Ms Kelly, who has appeared on his behalf throughout, are based on perversity. We can discern no complaint of self-misdirection in law on the part of the Industrial Tribunal.
In order to succeed on that basis it must be shown that the Tribunal reached a finding wholly unsupported by any evidence - see Piggott Bros v Jackson [1991] IRLR 309, or reached a conclusion which was an impermissible option, plainly wrong, or any of the other epithets helpfully collected by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 , 443.
It is said that in a number of respects the Industrial Tribunal misunderstood or misapplied the facts. That formula, to be found in the judgment of Phillips J in Watling v William Bird & Son Contractors Ltd [1976] 1 ITR 70, 71G, has been disapproved by the Court of Appeal in British Telecommunications Plc v Sheridan [1990] IRLR 27 . In the latter case McCowan LJ warned against the Employment Appeal Tribunal allowing an appeal because it took a different view of the facts from the Industrial Tribunal.
Chairman's Notes of Evidence
Ms Kelly acknowledges that the bulk of the grounds of appeal in this case cannot properly be advanced without the Chairman's Notes of Evidence relating to those issues there raised. See Piggott Bros and the subsequent case of Ministry of Defence v Hunt [1996] IRLR 139.
The procedure for obtaining Chairman's Notes is set out in paragraph 7 of the Practice Direction issued by Mummery J on 29 March 1996. It reflects the practice which has developed through the earlier cases on this topic.
Paragraph 7 provides, so far as is material;
In this case the Notice of Appeal was lodged on 21 May 1996. On 26 November 1996 the Respondent's skeleton argument, settled by Miss Mountfield, was sent to the Appellant. It was there argued that certain grounds of appeal were unsustainable in the absence of the Chairman's Notes. Accordingly on 30 November 1996 Ms Kelly wrote to the EAT requesting the Chairman's notes without limitation. That is, notes of 20 days evidence. The following week the Registrar refused the application.
No action was then taken by Ms Kelly until today when she renewed her application for Chairman's notes. The position was reached where no further progress could be made in the appeal shortly before the lunch time adjournment. Faced with the risk of having to pay the Respondent's costs thrown away by an adjournment of this appeal, in order to obtain the Chairman's notes, Ms Kelly decided to withdraw her application for the notes. Accordingly her submissions on the issue of race discrimination are limited to three grounds:
In short, we can see no grounds in law for interfering with the Industrial Tribunal's finding as to race discrimination. Their reasons are unimpeachable. They speak for themselves.
The Costs Appeal
The Tribunal found that the Appellant and Ms Kelly consistently arrived late for Tribunal hearings. There were delays caused by breaks for photocopying. On the last day Ms Kelly left her closing submissions at home and had to go back to get them. The Tribunal estimated that at least one full day's hearing time was lost in this way. They regarded that behaviour as unreasonable conduct in the conduct of the proceedings within the meaning of Rule 12(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Taking into account the Appellant's earnings of £20,000 per annum in his new employment they ordered costs against him in the modest sum of £275. We note from an affidavit sworn in these proceedings by Mr Cross, the Solicitor for the Respondent, that the total legal costs were estimated at £14,435.
In our judgment the Industrial Tribunal acted within the ambit of their discretion in making the costs order which they did. There are no grounds for interfering with that order.
It follows that this appeal must be dismissed.