United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JONES (of Counsel) Mischcon de Reya 21 Southampton Row London WC1B 5HS


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Miss Jawhary wishes to make against the unanimous decision of an Industrial Tribunal which was promulgated on 26 June 1998. By the decision of the Tribunal they held that the Applicant was wrongfully dismissed, but dismissed her claim of race discrimination. She appeals from their finding in relation to race discrimination. She is of Palestinian ethnic origin and of Jordanian nationality and was employed by IBCA Ltd. She claims that she was less favourably treated than her white European colleagues in essentially two respects.

Firstly by the way she was spoken to by her manager, Mr Huhne. In particular, she said that he said words to the effect that people in this country take plagiarism seriously, implying by that remark that as a foreigner, she could not be expected to comply with the standards of behaviour in England. That was a stereotypical remark it was said, and showed a general hostility towards people with her background, that is, ethnicity and nationality, and that Arabs somehow or another do not, until it is pointed out to them, have the same standards of behaviour as people who are of the ethnic majority.

That is just an example of this sort of comment that she was complaining of, but she also complains that having arrived at the conclusion that she should be dismissed, they treated her in a way which was also less favourable than the treatment meted out to her colleagues, in the sense that she was treated as though she was a suspect for removing confidential information from the office and not allowed to work out her notice and was frog-marched out of the premises.

The point of law that the Appellants have identified in this case is that the Tribunal have wrongfully approached the question at issue. They have asked themselves whether the person who was taking the action and making the remarks was motivated by race rather than asking whether the treatment was meted out to her was less favourable than an actual or hypothetical comparator and then asking whether the difference in treatment was attributable to race recognising that those differences might occur, even if the person doing the act of saying the words, may have been unconsciously discriminatory. That submission is based upon a paragraph in the decision which effectively concludes that Mr Huhne was not a racist and in paragraph 24 they refer to racial motivation in the way in which the dismissal was effected.

We have to say that we think that is an arguable point of law, but we should remind the Appellant that by giving leave on that issue we are not implying anything as to the ultimate conclusion that will be taken by the Employment Appeal Tribunal. Then it is said that the Industrial Tribunal have failed to understand the nature of the complaint which was being made and that accordingly, the Employment Appeal Tribunal should look at this case further at a full hearing.

We are of the view that the whole of this decision should be looked at again. It does appear that there may have been two significant errors in the findings of fact made by the Industrial Tribunal. We say that because we have had the advantage of reading a full and helpful draft answer filed on behalf of the Respondent in this case, where in paragraphs 3(d) and 3(e), there is an acceptance by the Respondents that the Industrial Tribunal have made findings which are slightly inaccurate.

Accordingly the matter will go for a full hearing, it will be listed as category B. It is unlikely that notes of evidence will be required in this case. The parties will have to think further as to whether they do need notes of evidence. If they were of the view that such notes were required, then as a condition of my granting leave and I do not say that leave will be granted, they will have to seek between themselves to draft an agreed note of the evidence. Both parties were represented by Counsel at the hearing which lasted for three days, with an agreed note or two notes indicating where the disagreements lay. The learned Chairman will be much better assisted in providing her own notes of evidence, if as I say I subsequently grant leave for such an order to be made. I will only do so, as I say, if that step was first taken by the parties. Accordingly, this will go for a full hearing, I estimate that it will take no more than one day to argue.