United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D WIDDOWSON (appearing under the ELAAS)


 


JUDGE J HULL QC: We are minded to give leave for this case to proceed to a full appeal on all parts of the case. I will shortly state why we are doing that.

Mr Usman was first employed by the Respondents in April 1992 and in May 1995 he began proceedings in the Industrial Tribunal complaining that there had been racial discrimination against him. Those proceedings came before the Industrial Tribunal in May 1996 and that Industrial Tribunal, though not accepting the whole of the complaint (which we have not seen) did find, apparently, that racial discrimination was established.

Now Mr Usman appeals to us in respect of two matters which were before the Industrial Tribunal against whom the present appeal is brought. He made a complaint on 9 April 1996 of racial discrimination in the form of victimisation. He himself complains that it was victimisation not discrimination but, in fact, victimisation is treated in the Act as a form of discrimination and the mere verbalisation does not affect the matter. He made a second complaint, which was in fact of course the third, on 31 July again complaining of racial discrimination. Those came before this Industrial Tribunal.

It appears to us that the substance of what is said can be gathered from reading the decision, the Reasons given by the Tribunal, who dismissed the applications: it is said that they did not give proper weight to the previous finding of the Industrial Tribunal, that racial discrimination had been established in respect of a failure to give reasons promptly, as we are told it was.

If there was a finding of racial discrimination in favour of Mr Usman then it seems to us that when two allegations were made of victimisation it behoved the Industrial Tribunal to inquire carefully into the matters of complaint and it is said, and we think that it is perfectly plausibly said, that they reached their conclusion simply by saying, in substance, that Mr Usman is a very difficult and troublesome sort of man; opinionated, not open to reason and so forth. They do not seem to have gone into the question whether that was occasioned by the bad treatment which he had received, as their colleagues in the other Tribunal found, whether it was the facts on which that earlier complaint rested which had led to Mr Usman becoming embittered and difficult and so forth.

Clearly if a Tribunal has found that there has been discrimination it behoves any Tribunal which follows afterwards, looking at allegations of victimisation, to look very carefully to see how the disadvantages or ill-treatment of which the complainant complains have been caused. Furthermore we are told on instructions by Mr Widdowson of ELAAS, to whom we are very grateful, who has appeared today for Mr Usman, that many of the conclusions of the Industrial Tribunal are inconsequential or not based on evidence or contrary to evidence. We say no more about that because we have not seen the evidence.

It is certainly possible to demonstrate, on the face of it, some illogicality in various observations of the Tribunal. Among other things it is said that the explanation offered in respect of the matters of the second complaint, where Mr Usman complains that he was not notified of a managers appointment which he would have wished to apply for, was that there had been a mistake about his grade. We are told first of all that that explanation was merely produced at the hearing and had not been advanced before, was inconsistent with other explanations and was transparently incorrect because a document which was produced to the Tribunal showed it to be wrong and indeed Mr Usman's grade was on his contract and on other documents and should have been plainly obvious to the Respondents. So that explanation was not on the face of it credible.

We are told quite justly by Mr Widdowson that if an explanation which is put forward does not commend itself, is in the view of the Tribunal wrong, they then should have gone on to ask themselves very carefully why it was that the employee had suffered some disadvantage: do they infer that that shows discrimination on the ground of race, or in this case victimisation? We say no more about it, it will be entirely for our colleagues who hear this appeal. But we do note with considerable misgivings that it is alleged in this case that there was bias arising in this way: that the Tribunal took against Mr Usman at an early stage because they thought that he was opening his mouth too wide and declining to consider settling his case on a reasonable basis. That is answered by the Chairman, of course, but we think it right that that too should remain in the case so that our colleagues who hear the appeal will be able to consider that matter too and decide it in due course.

With regard to the evidence, it seems to us at the moment, having heard the case argued so very convincingly on the basis of very short statements,that it may be possible to hear the appeal without calling for the Chairman's Notes of Evidence, by asking the Appellant simply to put important documents into an agreed bundle, as we hope it will be.

With regard to the evidence itself. We hope that if Mr Usman applies (as he intends to) for legal aid that it will possible to agree the vital parts of the evidence simply by saying "there was no evidence on this topic", or "the evidence on that topic can be summarised as follows -." Something quite short to save the very considerable labour involved in preparing four days' Notes of Evidence. It may be possible, again, to say that the evidence or part of the evidence of one witness or two witnesses will be sufficient to enable the case to be argued. It may very well be, and we say nothing about this, that any Counsel or Solicitor instructed by Mr Usman will decide to proceed only with part of the case, not with every possible averment. For the moment, therefore, we are not going to ask for the Chairman's Notes of Evidence and we say that we will entertain any further Application if one is necessary. In the first instance that should be made to the Registrar of our Tribunal and if necessary it can be renewed before our Tribunal.