United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J McMULLEN QC Instructed by: Mr R J Dickinson Group Solicitor (Legal Services) London Borough of Hillingdon Civic Centre Uxbridge Middlesex UB8 1UW


 


JUDGE PETER CLARK:

1. On 29th January 1997 the applicant, Mr Scott, who is black and of African-Caribbean racial origin, applied for the post of Housing Needs Manager with the respondent, London Borough of Hillingdon. He was then employed in the Kingston-on-Thames Council Housing Department.
2. He had previously been employed by the London Borough of Ealing. That employment ended on 31st December 1995. On 5th February 1996 he presented a complaint of racial discrimination against Ealing to an Employment Tribunal.
3. He was one of four people short-listed for the Hillingdon post. The short-listed candidates were first interviewed by officers of the respondent on 3rd March 1997. Those officers were Mrs West and Mr Cheales.
4. On 2nd April 1997 the candidates were interviewed by a panel of three councillors. Mr Davey chaired the panel. The other councillors were Lynne Allen and Catherine Dann. Mrs West and Mr Cheales were present at those interviews having organised the recruitment exercise. They were not involved in the decision making.
5. Following that interview the post was offered to a white male candidate, DW. The other three candidates were not considered suitable for appointment, following the panel's discussion.
6. Later in April 1997 DW declined the post. It was then re-advertised in the Guardian newspaper on 16th April.
7. On 10th June 1997 the appellant presented his first complaint against Hillingdon. He alleged unlawful direct racial discrimination arising out of his non-selection for the post.
8. Later in June a second round of interviews took place. As a result the post was offered to and accepted by a candidate of Indian racial origin.
9. In October 1997, according to the respondent's evidence, conversations took place between officers of Ealing and Hillingdon concerning the appellant's complaint of racial discrimination against Hillingdon.
10. Meanwhile the appellant's case against Ealing was part heard and adjourned on 21st May 1997. At the resumed hearing held on 4th November 1997 the appellant learned through cross-examination of Ealing's witnesses, that his action against Hillingdon had been discussed between officers of the two councils.
11. The Ealing case was then settled and on 2nd February 1998 the appellant brought a second complaint against Hillingdon of victimisation under s.2 of the Race Relations Act 1976. Two days later he presented a complaint of victimisation against Ealing. That claim was later withdrawn.
12. Both complaints against Hillingdon came on for hearing before an Employment Tribunal sitting at London (North) under the chairmanship of Mr M S Rabin on 13th to 16th July 1998. After a day in Chambers spent considering the case the tribunal promulgated its decision with extended reasons on 2nd September 1998. In short, it appears the first complaint failed and the second complaint, that of victimisation, succeeded.
13. Against the finding of victimisation Hillingdon now appeal.
14. Broadly, two lines of attack are taken by Mr McMullen QC. (A third argument, raised in the Notice of Appeal, that the tribunal failed to consider whether the respondent had a conscious motive in victimising the appellant is not now pursued in the light of the House of Lords decision in Nagarajan v London Regional Transport [1999] ICR 877.)
15. The first point concerns the tribunal's conclusion that the reason for the respondent's treatment of the appellant, in not selecting him for the post and not permitting him to reapply, was that the respondent was influenced by his claim of racial discrimination brought against Ealing. He was seen as a troublemaker.
16. In reaching that conclusion, for which the tribunal recognised there was a lack of hard evidence, it was necessary, submits Mr McMullen, for the tribunal to specifically reject the evidence of all three councillor panel members, the two officers, Mrs West and Mr Cheales and the respondent's solicitor, Ms Johnson, that none were aware of the Ealing complaint before, at the earliest, July 1997, and in some cases much later. The tribunal did not go that far. Accordingly there was no evidential basis, nor findings of fact, to support the inference of victimisation.
17. Secondly, based on the affidavit evidence of the respondent's solicitor and junior Counsel below, Mr Lewis, on which the Chairman has declined to comment, it appears that on the fourth day of the hearing the parties' representatives were called into a private session with the tribunal, without the parties themselves being present, to be told by the Chairman that the respondent had major difficulties and it might be in the interests of the parties to reach a negotiated settlement. At that stage, before all the respondent's evidence had been heard, the Chairman, whilst emphasising that no concluded view had yet been reached, indicated that so far as the victimisation claim was concerned the appellant had "not passed the evidential threshold".
18. Negotiations ensued, without success. The representatives were then again summoned to a second private session to report on progress. When informed that no settlement had been reached the Chairman then said that he wanted to make it clear that the "door was ajar to victimisation" as the explanation for the respondent's treatment of the appellant.
19. No further evidence had been heard between the two private sessions. A third private meeting then took place at the request of Mr Lewis, at which he suggested that the tribunal had displayed bias against the respondent by changing its stance on the strength of the victimisation claim. That suggestion was firmly denied by the Chairman.
20. The case then proceeded; further evidence and speeches were heard and the tribunal reserved its decision.
21. It seems to us, at this preliminary hearing stage, that both points now raised in the appeal are arguable and ought to proceed to a full hearing. We have already dealt with the argument as to the evidential basis for the tribunal's inference of victimisation. As to the practice of calling in the parties representatives only and giving indications as to the tribunal's views before the evidence and argument have been fully heard, we have been referred in particular to Morison J's observations in Tsontzos v Hilton International (UK) Ltd (EAT/348/97 – 2nd December 1997 – Unreported) and to two other unreported cases in this tribunal Huntingdon Life Sciences v Kirby (1999 - EAT/435/98) and Alleyne v London Underground (1999 – EAT/529/97).
22. The particular question in this case is whether unfair pressure was applied to the respondent to reach a settlement in circumstances where open justice was not done. We are satisfied that that point also requires ventilation at a full hearing.
23. Accordingly, we shall direct that the case be listed for one full day, Category B. We do not consider in the circumstances that the Chairman's Notes of Evidence are required. The parties will exchange and lodge with the EAT copies of their skeleton arguments 14 days before the full hearing.
24. Mr McMullen has made an application for consideration of this case being linked with another case in which he appears Initial Contract Services Ltd v Reilly (EAT/191/99) which was allowed to proceed to a full hearing at a preliminary hearing presided over by His Honour Judge Harold Wilson on 12th July 1999. That request will receive full consideration and be dealt with administratively.