United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BROWN (of Counsel) ELAAS


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mr Tchoula has an arguable point of law in an appeal which he wishes to maintain against the decision of an Industrial Tribunal held at London (South). By that decision, the tribunal decided that his former employers, Netto Foodstores Ltd had not discriminated against him contrary to the Race Relations Act 1976 nor had he been victimised by them under that legislation. Accordingly his Originating Application was dismissed.

Mr Tchoula has raised a number of points of law which he wishes to pursue at the appeal. The first is what might generally be described as criticisms and complaints about the way that the Industrial Tribunal treated him before and during the course of the hearing. It is always regrettable when parties who have lost before an Industrial Tribunal are left with a burning sense of injustice as he is, in this case.

In accordance with our practice and procedure, Mr Tchoula was invited to swear an affidavit setting out in detail what his complaints were. That affidavit has been responded to by the Chairman, who essentially denies that the proceedings were unfair in any of the respects alleged. It seems to us arguable that there comes a time where the sense of injustice which is felt, despite the denial of the tribunal Chairman, might lead the Employment Appeal Tribunal on that ground alone, to ask for the case to be reheard before a different Industrial Tribunal. We make no assumption that that would be the result of any such appeal, we merely think that it is at least arguable that this may be such a case.

Secondly, he makes a specific complaint in relation to the conclusion which the Industrial Tribunal arrived at in paragraph 15, that is in relation to the way he was dealt with by his employers over a lateness episode. It was his contention that because he was black, the employers made a telephone call to his home to check where he was, whereas if he had been white he says that no such check would have been made. The Industrial Tribunal said that that could not be unfavourable treatment and that even if it were, they asked the rhetorical question as to what the detriment would be that Mr Tchoula had suffered as a result of that treatment.

It seems to us to be arguable as to whether the approach of the Industrial Tribunal was correct on this matter. It seems to us also to be arguable that the tribunal erred in law in refusing to look at comparable examples of lateness which occurred after the date when Mr Tchoula ceased to be employed. The question as to whether such evidence is relevant and admissible in a complaint of unlawful discrimination is one that is fit for argument before the full panel of this Court.

Thirdly, in relation to victimisation the tribunal deal with this matter in paragraph 17 of their decision. It seems to us to be arguable that the way they have dealt with it in that paragraph is not correct in law, and in any event, lacks sufficient particularity so as to enable Mr Tchoula to know why his complaint under this head was being dismissed.

Fourthly, in paragraph 18 of the decision, the Industrial Tribunal under the heading "Dismissal", referred to the fact that:

"The applicant lacked the ability to be a "team player" and lack interpersonal and management skills."

It seems to us to be arguable that an Industrial Tribunal when faced with a contention that an employee who is of an ethnic minority was not a team player or did not fit in, should recognise it as one of the warning signals which they should be astute to detect as being a potential sign of discrimination. It seems to us, therefore, that it is arguable that the Industrial Tribunal have not carried out the function which Parliament has imposed on them in a case such as this. We express no view one way or the other on this question, but it seems to us to call for debate before a full panel of the Employment Appeal Tribunal.

Fifthly, we consider that it is arguable that the tribunal should have read more into the incident of the daily control which is referred to at paragraph 19 than they did. It is Mr Tchoula's point that the out of date cake on the shelf was an item which had been on the shelf for many days before that, and yet he was the only one of the checkers who was spoken to about this matter. Again, we express no view one way or the other as to the outcome of any submissions on that point.

It suffices to say, therefore, that on those grounds we consider the appeal to be arguable and fit for hearing before a full tribunal. We would also like to indicate that complaints which appear in the Notice of Appeal about the respondent's solicitors and the preparation of the bundles is not a point which is being pursued, and therefore will not be a feature of the appeal.

In terms of directions, obviously the employers are to be given 14 days in which to serve their Notice of Appearance. We do not regard the Notes of Evidence as being required for the purposes of this hearing. For reasons of our own, I would wish this case to be listed before the President and colleagues when the matter comes back for hearing, as it will, I am afraid, not before October 1997.

I estimate the time for the hearing of this appeal to be one day. It should be listed formally as Category B, but marked with a 'P' as it is to come back to me. I would direct that a copy of this short judgment should be attached to the papers so that at the resumed hearing the issues will have been carefully defined.