United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 89_95_2405

Appeal No. EAT/89/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24th May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR K M HACK JP

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KINGSWAY COLLEGE & OTHERS          APPELLANTS

MR SHAHROKNI          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR G CONLIN

(of Counsel)

Eversheds, Jacques & Lewis

Senator House

85 Queen Victoria Street

London

EC4V 4JL


 


MR JUSTICE MUMMERY (PRESIDENT): This the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at London (North) on 7th to 11th and 14th November 1994. The Tribunal heard complaints of racial discrimination and victimisation brought by Mr Shahrokni against five respondents. In the full reasons given to the parties on 1st December 1994, the Tribunal found unanimously that the first respondent, Kingsway College and the third, fourth and fifth respondents, who were members of the staff, discriminated against Mr Shahrokni by reason of his race and victimised him. But the complaint against the second respondent was dismissed. The Tribunal also ordered that the parties should endeavour to agree compensation, but, if nothing was agreed by 1st February 1995, the matter would be restored to the list.

All the respondents found liable appealed against that decision by a Notice of Appeal served on 11th January 1995. The matter was set down for a preliminary hearing. The purpose of holding a preliminary hearing is to determine whether the Notice of Appeal raised a point of law reasonably arguable at a full hearing. If the Notice of Appeal did not raise such a question, there would be no point in proceeding to a full hearing because this Tribunal only has jurisdiction to decide appeals which raise points of law.

The grounds of appeal were that both in relation to the conclusion on unlawful race discrimination and in the conclusion on victimisation no reasonable Tribunal, properly directing itself, could reasonably conclude by a process of inference that there was liability.

On the appeal we have heard detailed arguments from Mr Conlin on behalf of the appellants. He has taken us in detail through the decision. Our conclusion is that he has failed to identify any arguable point of law in relation to liability to Mr Shahrokni for race discrimination/victimisation. He accepts, that if such liability exists, then it will certainly fall upon the college. We agree. In view of that conclusion we do not allow this appeal to proceed to dispute liability under either head so far as the college is concerned. We would also add that there is now no reason why the question of compensation cannot be agreed. Failing agreement there is no reason why this matter should not be restored to the list of the Industrial Tribunal to determine compensation.

There is, however, one limited area on which we are of the view that this matter should proceed to a full hearing. That is on the personal liability of the third, fourth and fifth appellants.

In paragraph 5 of the full reasons the Tribunal stated:

"We find that the College and each of the named Respondents with the exception of the Second Respondent treated the Applicant less favourably."

They went on to conclude that each of those respondents was liable for both race discrimination and victimisation. It is not, however, spelt out as clearly in the full reasons of the decision as it might have been as to the basis on which the Tribunal found that each of those respondents was personally liable for both types of unlawful act. This is a serious matter for the individuals. In our view, there is an arguable point of law as to the extent of liability for the wrong Mr Shahrokni has suffered as between the individual respondents. It is clear from the facts stated in the decision that they were not all in the same factual position. They held different positions of responsibility in the College. In our view, this matter should go forward to a full hearing at which each of the individuals will have an opportunity to argue why they are not individually and personally responsible for the wrongful acts established against the college on whose staff they served.

In those circumstances, the appeal proceeds on that limited basis. We have also pointed out to Mr Conlin (and he appreciates the position) that it will require reconsideration on the part of him and his solicitors as to how far they can continue to represent all of the individuals. If each of them possibly occupies a different legal position it may become necessary for them to be separately represented, so that full justice can be done to their arguments.

The order we make today is that the appeal proceeds to a full hearing, solely on the question of the liability of the individual third, fourth and fifth respondents for the acts of unlawful discrimination and victimisation.

We direct that the matter of compensation should now be restored to the Industrial Tribunal, unless agreement is reached on the amount.