England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th April 2008

Lord Justice Mummery:

1. This is a renewed application for permission to appeal. The decision which  the applicant wishes to appeal is that of the Employment  Appeal  Tribunal, chaired by HHJ  Peter  Clark. On 20 December 2007 the Employment Appeal Tribunal allowed an appeal by the employer, Centrewest London Buses, against a finding of an employment tribunal of race discrimination. I will explain in a moment the background to the complaint and to the decisions which have been reached. The applicant, who was obviously disappointed with the decision of the Employment Appeal Tribunal, which, consequential on allowing the employer's appeal, dismissed his claims of race discrimination and victimisations in respect of which the employment tribunal had awarded him substantial damages. The applicant made his application for permission on paper and it was considered by Pill LJ on 25 February 2008. Pill LJ refused permission.
2. On this renewed application Mr O'Dair appears. He has supplemented his skeleton argument with a summary of the points which he wishes to make in relation in particular to the reasons given by Pill LJ for refusing permission. I have decided, as I have indicated to Mr O'Dair, that I think this is a case in which I should grant permission. I do not do so on the basis that I think the appeal has got a real prospect of success. I do so on the basis that it raises a significant issue which I agree with Mr O'Dair should be considered by the full court.
3. It is in a difficult area of race discrimination and victimisation arising from the applicant making an allegation of racial abuse and discrimination against a fellow employee. What happened in this case, very briefly, is that the applicant was employed as a bus driver by Centrewest London Buses from 4 January 2005. The particular incident which has given rise to this point occurred on 20 January 2006. The applicant made an accusation of racial abuse against another driver, Mr Martin. Mr Martin denied that he had made any racially abusive comments. The outcome was that Mr Martin was suspended. So was the applicant. The applicant is of black African ethnic origin. He brought proceedings which were decided in May 2007 by the employment tribunal. The employment tribunal found in his favour on a number of claims. Although they rejected certain complaints of racial discrimination and victimisation, they did find that he was unfairly dismissed and they also found that, although he was not subjected to race discrimination or victimisation in relation to the matters that took place on 20 January 2006, he was subjected to race discrimination and victimisation in relation to matters about which he complained that took place between 24 January 2006 and the date of a letter from the employers, dated 7 March 2006. In relation to those claims they considered it just and equitable to extend time.
4. The tribunal dealt with the relevant matters in paragraphs 29 to 31 of their judgment. What they said was that, when the applicant was suspended on 24 January, the employers had before them a complaint by the applicant that Mr Martin had racially abused him and a denial of that complaint. They went on to say this:

"The oral and written reports by the Claimant that were in respect of the complaint of racial abuse contained inconsistencies and the brief statement from one of the independent witnesses did not provide any support for the allegation of racial abuse."

5. The claimant was suspended for making a false allegation, that is one that had no basis of fact and one which the claimant knew had no basis of fact. The tribunal went on to say this:

"Whereas there may have been sufficient evidence on which a reasonable employer could conclude that there was a possibility that the allegation of racial abuse had no basis in fact, there was no evidence on which a reasonable employer could have concluded that the Claimant knew his version of events had no basis in fact, or that he was being deceitful in making the allegation, as opposed to being confused or mistaken. The more serious the allegation, the more cogent the evidence should be to support that allegation. The Respondent failed to heed the CRE Code of Practice. The suspension from 24 January to 7 March following a complaint of racial abuse without adequate evidence to support a prima facie case that the claimant was making it up is a fact from which the Tribunal concludes that the Respondent could have committed an act of racial discrimination and victimisation."

Then they dealt in paragraph 31 with the point on disparity in treatment on the way that the employer dealt with the dismissal of the charge against the applicant. They referred to the involvement of Mr Martin and then concluded:

"We therefore find that the suspension and reluctance to accept that there was no proper basis for the allegation that the complaint was false was an act of discrimination which continued from 24 January 2006 until the Claimant received the letter of 10 March 2006, on 13 March 2006."

6. The reason I am granting permission to appeal is that I think that Mr O'Dair has raised in his skeleton arguments points which are of some importance in relation to discrimination law in the workplace, in particular as to how people who make allegations of racial abuse or discrimination should be treated and on what basis. It seems to me that his arguments on the true effect of the code of practice of the CRE, which are referred to in the tribunal decision, need to be considered by the court. It also seems to me that the full court should consider on what basis an employer who takes action to suspend an employee for making allegations of racial abuse should proceed. Those points are apparent from paragraphs 29 and 31 in particular of the employment tribunal judgment. There are other points which I should mention which have led me to stop short of saying I think that the overall appeal would have a real prospect of success. In overturning the employment tribunal's decision, the Employment Appeal Tribunal identified what they considered to be a number of errors of law in the employment tribunal's decision; and there are questions arising on what is the effect of the reversal of the burden of proof in these circumstances and there is also a question on whether the employment tribunal correctly directed themselves in relation to the process of comparison of the treatment of the applicant with the treatment of a hypothetical comparator. On that point the Employment Appeal Tribunal concluded that the employment tribunal had erred in law.
7. On that point Mr O'Dair wishes to argue at the full hearing that there was no error of law on the true understanding of what Lord Nicholls said in paragraph 12 of his speech in Shamoon v Chief Constable of the RUC [2003] IRLR 285. The outcome, therefore, is that I am satisfied that on the further submissions that Mr O'Dair has made, which Pill LJ did not have the benefit of, there is a case which should go before a full court.
8. I am making it clear, at the expense of risk of repetition, that I am not expressing any view about the overall prospects of the appeal succeeding. It seems to me that, although Mr O'Dair may be right on some aspects of the EAT's criticism of the employment tribunal's decision, he may be wrong on other aspects. The outcome may be that the appeal is dismissed.
9. Permission to appeal is given. I am not limiting the grounds on which the appeal can be brought.

Order: Application granted