United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BURNS (of Counsel) ELAAS


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Dass wishes to make against a unanimous decision of an Industrial Tribunal held at Stratford, which following a three day hearing, concluded that this application alleging unlawful racial discrimination should be dismissed.

Mr Burns has assisted us in this case. He is a part of the ELAAS system. We acknowledge the support and help which the ELAAS system gives in cases such as these and we are grateful to Mr Burns for appearing before us today and for the time he has given on a pro bono basis.

There are, as it seems to us, three points essentially which are arguable. The first relates to the role which Mr Ludi played in this case. It would appear that Mr Ludi, who was Mr Dass' superior, was telling his superiors that the applicant's performance of his duties was less than satisfactory, but at the same time telling the applicant that his performance was satisfactory. The question arose as to the renewal of Mr Dass' annual contract for the term beginning October 1995. It would appear that Mr Ludi told Mr Kirkwood one thing, and the applicant another. As a result of which Mr Dass found himself without a contract on the grounds, apparently, of his lack of competent performance of his job. The tribunal investigated that matter and concluded that the reason why Mr Dass was not told of any shortcomings on his part or of any alleged comment by students, was for 'cultural reasons'. That was the expression used by Mr Ludi himself. The tribunal said that they did not believe that Mr Ludi was in anyway ill disposed towards Mr Dass; that he did not hold any matter against Mr Dass; and that he was nonetheless predisposed against Mr Dass, and the tribunal said this:

"25. ... Mr Ludi did, we believe, discriminate against Mr Dass but not, we are sure, on the grounds of race, colour or nationality."

It seems to us that those findings raise an arguable point as to whether the tribunal have really considered with sufficient care the question as to whether Mr Dass may not have a good claim against the respondents on the basis that Mr Ludi discriminated against him by not telling him of his shortcomings for racial reasons. It depends what is meant, to some extent, by 'cultural reasons'.

Secondly, it seems to us that when it comes to the appointment that was made of Mr Ford, the Industrial Tribunal simply say that rightly or wrongly the University genuinely thought Mr Ford to be a better choice. They had not advertised the position. It was carried out on the basis of networking or on an in-house basis. The scope for racial discrimination was manifestly there as a result of the procedure which was adopted. If they genuinely thought wrongly that Mr Ford was a better choice for the new lecturing post, that at any rate, would leave open the question as to whether there was grounds of drawing an inference of race discrimination.

The third ground relates to the complaint of victimisation. It seems to us that this is arguable but does not fall into the same category as the other arguments. The point being made is that it would appear that everything went wrong after 28th June 1995, when Mr Ludi would have known that Mr Dass wanted to take time off to pursue a complaint of race discrimination in an Industrial Tribunal, and the tribunal in this case have, it is submitted, failed to make the connection between that event the problems which occurred thereafter. In other words, they misdirected themselves on the question of causation when it came to the victimisation complaint. We regard that as just arguable. But we certainly think that the first point needs to be investigated at a full hearing and we give leave in relation to all three grounds.