Appeal No.	EAT/203/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 1998

Before
HIS HONOUR JUDGE CLARK
MISS A MADDOCKS OBE
MR P A L PARKER CBE

MR J HUSSANEY	APPELLANT

(1) CHESTER CITY F C	RESPONDENTS
(2) MR K RATCLIFFE

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant

MR C HAY
(Representative)
Northern Complainant Aid Fund
Checkpoint
45 Westgate
Bradford
W Yorks
BD1 2TH

	JUDGE PETER CLARK:     This is an appeal by Mr James Hussaney, the Applicant before the Liverpool Industrial Tribunal sitting on 3 - 5 November 1997, against part of that Tribunal’s decision, promulgated with full reasons on 21 November 1997.

	The Appellant was a member of the First Respondent football club’s youth squad from June 1995 until June 1997.  He is of mixed race.  The Second Respondent, Mr Kevin Ratcliffe was the club’s manager.

	On 29 January 1997, prior to a reserve team match, the Appellant was required to change the studs in the Second Respondent’s boots.  He fitted them incorrectly.  The Second Respondent was heard to say “Where’s James, the black cunt” by two of the Appellant’s friends, who reported what had been said to him.

	The Applicant telephoned his father, who came to the ground to remonstrate with the Second Respondent.  He was headed off by Mr Fogg, the youth team coach.  Later that evening the Second Respondent offered what he claimed was an apology.  He did not deny using the words overheard by the two young footballers.

	As a result of a telephone conversation between the Applicant’s mother and the club Chairman, Mr Guterman, a meeting was held on 4 February 1997.  On that occasion the Second Respondent was genuinely apologetic.  It was agreed that the club would issue a formal apology to the Appellant and that the Second Respondent would receive a disciplinary warning.  At the meeting Mr Fogg was hostile to the Appellant’s mother, saying that the Appellant had a bad attitude.  The Tribunal observed that no two witnesses called on behalf of the Respondents could agree as to what that meant.

	Subsequently, the Appellant never received the promised apology.  The Second Respondent was sent a disciplinary letter, which the Tribunal found was too mild in tone; said nothing about the likely consequences of repetition and was not the letter of an employer who had formed the view that the manager had seriously misconducted himself.

	On 21 March 1997 the Appellant was informed by the Club that he was being released; he would not be offered a professional contract.  Of the nine players in the youth team only two were released, the Appellant and the goalkeeper, Paul Smith.

	On these facts the Tribunal had to decide two issues; First, was the Second Respondent, and through him the 1st Respondent, guilty of unlawful racial discrimination by reason of the racial abuse which he uttered.  The Tribunal held that that part of the Appellant’s case was made out, and they awarded him £2,500 compensation for injury to feelings.  There is no appeal or proposed cross-appeal against that finding.

	Secondly, the Appellant contended that he had not been offered a professional contract because he had complained about the Second Respondent’s racial insult; in other words, a complaint of victimisation under Section 2 of the Race Relations Act 1976.  The Tribunal rejected that part of the claim and it is against that finding that this appeal is brought.

	Before us today Mr Hay has carefully taken us to the factual and legal issues which arose on this part of the Appellant’s claim.  His main submission is that in rejecting the victimisation complaint the Industrial Tribunal failed to give sufficient reasons for that finding in accordance with the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250.  In particular, he points out that under Section 65(2)(b) of the Act, Industrial Tribunals are invited to draw inferences of discrimination from unsatisfactory or inadequate answers to questionnaires served under the Act.

	In this case the Second Respondent, in answer to a question posed in the questionnaire served on him, answered that the goalkeeper, Paul Smith was released for the same reason as that given in relation to the Appellant.  In relation to the Appellant, Mr Ratcliffe said that he lacked the requisite skills and mental strength to perform at a consistently high level, at the standard required by members of the club’s 1st team squad.  

	Mr Hay points out that Paul Smith was called to give evidence, that his evidence we are told, was unchallenged and that Smith produced a reference letter which the Club had written on his behalf, which gave as the reason for his release, his size and strength; nothing to do with the reasons given in the Appellant’s case.

	Secondly, the Industrial Tribunal found that the complaints of bad attitude made against the Appellant and forming part of the explanation for his not being offered a professional contract, were baseless, and in particular, in relation to Mr Fogg that the baseless accusation of bad attitude was a response to the complaint which the Appellant had made of racial abuse against the Second Respondent.

	Those are factual matters on which the Industrial Tribunal’s reasons are silent.  So far as the legal issues are concerned, Mr Hay submits, on the basis of the Court of Appeal decisions in Aziz and Nagarajan, that the Tribunal had to ask itself three questions.  One, did the Appellant do a protected act?  He submits the answer to that question must be: Yes, the Appellant had complained of racial discrimination against the Second Respondent.  

	Two, did he suffer less favourable treatment?  Again, it is said the answer is:  Yes, when a comparison is made with the seven members of the youth squad, all white, who were retained under professional contracts and, indeed, when a comparison is made with Paul Smith, who was released for quite different reasons to those originally put forward by the Respondents.  

	Thirdly, was there a causal connection between the less favourable treatment and the doing of the protected act?  It was here, submits Mr Hay, that the Industrial Tribunal’s failure to make findings as to material factual matters leaves this decision wanting.

	At this stage we are concerned only with whether or not this case raises an arguable ground or grounds of appeal to go to a full hearing.  We have set out the matter in as much detail as we think is helpful and necessary to explain why we have permitted the case to go forward to a full hearing.

	So far as consequential directions are concerned, this case will be listed for a full appeal hearing of four hours; Category B.  We have heard submissions from Mr Hay as to the need for a direction for Chairman’s notes of evidence.  The way in which we have left is that he will write to the Respondents’ representative indicating those parts of the evidence which he invites the Respondents to accept were in fact given.  

	If these matters can be agreed then no difficulty arises and that exchange of correspondence will be in the bundle to be put before the full appeal tribunal.  If there is disagreement on any of the matters raised, then both parties have liberty to apply to me for further directions as to Chairman’s notes of evidence.