1. These submissions are limited to showing that there is no reasonable prospect of success for any appeal. The Notice of Appeal fails properly to identify any arguable errors of law by the ET.

2. The EAT has no power to interfere with the ET's decision unless it can be shown (a) that the tribunal misdirected itself in law or misunderstood the law or misapplied the law; or (b) that there was no evidence to support a particular conclusion or finding of fact or (c) that the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively was one which was obviously wrong.

3. For reasons of conciseness, the Appellants' contentions will not be repeated verbatim below. Referring to the relevant paragraph numbers in the Notice of Appeal, the Respondent's preliminary hearing submissions are as follows:

Paras. 1 & 2

This is not a point of law. The Appellants are seeking simply to repeat one of the arguments raised and rejected at trial. This argument was considered and rightly rejected by the ET on the evidence. Paragraph 27 of the Extended Reasons summarises the conclusion. Other relevant findings of fact include paras. 25.5, 25.6, 25.8, 25.10, 28 and 29. The "Finance Committee" simply rubber-stamped the Bursar's decisions and the Appellants put forward absolutely no evidence at trial to suggest anything different. In so far as the Appellants now seek to challenge the ET's finding of fact to that effect, and its reasoning based upon those facts, they plainly have absolutely no reasonable prospects of success.

Para. 3

This is not a point of law and it is wholly improper for the Appellants to suggest that the ET should have set out the law in any more detail in the Extended Reasons. Setting out all the agreed requirements of the RRA was wholly unnecessary in this case because during closing submissions it was agreed between the parties' legal representatives that there were no issues between us on the law. The Appellants' written submissions on the law (referred to by the ET at para. 2.3 and para.21 - copy at R4) set out the law in full and this was agreed. Even now the Appellants plainly fail to identify any error of law on the part of the ET because of the alleged failure to recite that law.

Para. 4

The less favourable treatment and detriment are obvious. Indeed at trial the Appellants did not even seek to suggest that if the acts of Mr Boden complained of were motivated by race then there was any further issue. Dismissal is obviously an act of less favourable treatment by which the Respondent suffers detriment. That was the central allegation of the case. It was conceded by the Appellants that the ET could look either at an actual or hypothetical comparator. The less favourable treatment and detriment is particularised including in the following paragraphs of the Extended Reasons - 25.6 (the targeting of the Respondent by the Second Appellant and his subsequent dismissal), 26.3 (the disproportionate fraud investigation), 26.4-26.14 (the marginalising and exclusion of the Respondent from January 2003 onwards and the specific examples of different treatment regarding staff under his control), and 26.17-26.18 (summary).

Para. 5.

There was an agreed List of Issues (C4) which included all the allegations upon which the ET was asked to make findings. The material allegations are all set out in the Extended Reasons and the ET's findings thereon are all set out expressly.

Para.6

(a) This was a very minor point and of little relevance. It was an agreed fact that the Second Appellant had blocked off the door. The Claimant concentrated on the Chronology from December 2002 at the trial (see para. 24 of the Extended Reasons). The ET also focussed on those main points in reaching their conclusion - see para. 26.3 onwards of the Extended Reasons;

(b) Ditto;

(c) Ditto;

(d) This is nonsense. The Claimant was never involved in administration of the college ball. He was merely invited as a guest. In any event this fairly minor allegation is fully summarised at para. 14 of the extended reasons and the ET's conclusion is at para. 26.9.

(e) Again this is nonsense. This allegation is fully summarised at para. 26.13 of the Extended reasons.

Para. 7

These points were not the most important events and failing to deal with them could not possibly undermine the ET's conclusions of fact on the far more important allegations. Mr Boden is a racist - as the ET has found on the facts. It is not open to the EAT to interfere with those findings of fact.

Para.8

This is not an alleged error of law. The ET's conclusion is fully justified on the evidence. In fact the Appellants pointedly failed to produce proper or adequate evidence of what "costs savings" had been achieved - refusing to answer questions on the point - and see para. 25.5 of the Extended Reasons - no other "costs savings" have ever been sought by the College.

Para. 9

This is nonsense. Mr Boden never suggested that the level and nature of the fraud investigation was suggested by the external Auditors. Mr Boden continued at trial, despite the overwhelming documentary evidence against him, to suggest that this was not a fraud investigation at all. The ET rightly rejected his version and their conclusion is fully justified and explained in the Extended Reasons. Indeed the Appellants' Legal Representative at trial conceded that Mr Boden was wrong in his continued explanation - and conceded that this was in fact a fraud investigation against the Claimant - see Closing Submissions "(1) On the Race Case" - last bullet point. The draftsman of the Notice of Appeal appears to be confusing the audit regarding external computer access (which was long ongoing) with this much more specific fraud investigation of the Claimant.

Para. 10

This is nonsense. The ET did set out Mr Boden's spurious explanation for the difference in treatment (i.e. that "he was not enamoured with the idea of a loan for consolidation of credit cards") but rightly rejected it because the evidence proved that short term financial problems were indeed the cause of other college loans - see para. 26.5.

Para. 11

This is not a point of law. The Appellants are seeking simply to make an argument which they did not raise at trial - see the closing submissions. The facts are fully set out in Paras. 3 and 4 of the Extended reasons. In any event the delay does not "suggest that Mr Boden's actions were not actuated by race." The finding as to race is fully explained and justified on the evidence.

Para. 12

It is quite improper to make such an allegation. This was never raised in evidence or argument by the Appellants at trial (see for example the penultimate page of the Appellants' Closing Submissions at trial). There was (and is) absolutely no evidence regarding such an explanation. There was and is no evidence that the individual had cystic fibrosis or heart or lung transplant. There was and is no evidence that her health was suffering. There is no evidence that the College had any such matters in mind when conducting itself as it did. The decision to appoint Miss Hernandez and get rid of the Claimant was, in any event, made by the Second Appellant from the outset - see para. 25.6 - and Miss Hernandez knew all along that she would not be made redundant. The Claimant's health was suffering but his feelings were of no importance to the College. The EAT has no power to interfere with the ET's findings.

Para.13

These are matters of fact which have been decided by the ET. There is no arguable point of law here. The EAT has no power to reopen such issues.

(a) There is no error of fact. The meeting of 21.11.02 was an agreed fact - see agreed trial chronology but completely irrelevant to the allegations pursued by the Claimant at trial - it related to hours being worked, which was not a matter in issue.

(b) This is a minor typographical error - it should be warden not bursar - and the error is wholly irrelevant to the facts determined by the ET.

(c) This is not an error. The note at p.584 of the Trial Bundle was prepared by Mr Jenkinson before the meeting "for the meeting" just as his note at p.582 of the bundle was prepared before the meeting with the Claimant "for the meeting" with the Claimant. The meeting with Mr Boden allegedly lasted 1 hour but no further notes were ever produced according to Mr Jenkinson's own evidence. None of the important issues are dealt with in the Note at p.584. Again there are no notes of the further meeting which Mr Jenknison disclosed he had had with the Second Appellant. Mr Jenknson took no notes of his own - he said at trial.

(d) This is not an error or fact. The words quoted form part of a sentence and have been taken completely out of context. The Claimant was reluctant to sign off on projects of which he had no knowledge whatsoever. He had always previously been involved in project evaluation, but was excluded by the Second Appellant from around February 2003 onwards. He had written on 31 January 2003 (p.308 of the Trial Bundle) explaining why he was not prepared to sign off authorising such projects in future. He was not asking to be excluded. He was saying that he would not sign off if not involved. The full sentence reads "I am not suggesting that you should get me involved but I am not at ease 'authorising' projects of which I have no knowledge."

(e) This is not an error or fact. The ET plainly does not take this allegation into account in reaching its conclusions against the Second Appellant. It says so expressly.

Para. 14

It is clear from the extended reasons that the ET has carefully considered all the relevant factors. It has weighed up the countervailing points and decided the important factual issues against the Appellants. That decision is not appealable. There is nothing in the Notice of Appeal which comes close to a proper ground of appeal in relation to any point of law. It was a matter for the ET and the EAT cannot interfere.

JAMES STUART
COUNSEL FOR THE RESPONDENT/CLAIMANT

20 JUNE 2005