United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Central London Law Centre 19 Whitcomb Street London WC2H 7HA


 


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 Lindsay wishes to make against the rejection of his complaint of unlawful discrimination by victimisation brought against his former employers, Alliance & Leicester Plc.

The decision of the Tribunal is set out at some length and was sent to the parties on 21 September 1998. Essentially, Mr Lindsay was complaining, amongst other things, that he had been unlawfully victimised by his employers after he had raised a grievance alleging that he was being discriminated against on the grounds of his race.

The specific matter to which the appeal is directed relates to part of his complaint of victimisation which was that thereafter, he was monitored and had notes written about him in a way which showed that he was being picked on because he had raised his grievance. In particular, his attendances were being monitored in a way which happened to no other employee.

The employers had exchanged witness statements with the Appellant's advisers and amongst them was a statement from Wendy Blanks, who had made a number of entries on Mr Lindsay's attendance record showing that she was monitoring his attendance. She was no longer employed by the Respondents and was the subject of a witness order. Before the proceedings terminated the representative of the employers asked for that witness order to be discharged because they no longer wished to call Wendy Blanks.

The Tribunal deal with the matter essentially at paragraph 25 of their Decision. Counsel says that the approach which has been adopted in paragraph 25 is manifestly wrong. It is treating the decision in Zafar as some kind of obstacle for the drawing of inferences which otherwise should have been drawn to the effect that the reasons for the employer's actions is to be attributed to, in this case, victimisation. In addition, he says, looking at that paragraph having regard to the previous findings of fact, the conclusion of the Industrial Tribunal that the complaint of victimisation had not been made out was perverse.

We regard both those points as arguable. It is not, as it seems to us, a case where the perversity point requires an examination of the notes of evidence because it is an entirely self-contained point based on the Tribunal's findings as they stand in the written decision. Accordingly, notes of evidence will not be ordered in this case. I have looked at the Respondent's PHD form and they are not suggesting that notes would be required if the appeal were to proceed.

Although Counsel estimates that it will be half a day, I think with cases such as this care will obviously have to be taken looking at the issues, and I would have thought that it would be sensible to allocate a full day to this case. The employer's say one hour, but I think that is on the basis that they assume that the appeal is virtually unarguable. The Appellant suggested one day. Mr Kibling suggested that it could be dealt with in half a day. I think a day, and I think that it should be listed as a Category A case, because I regard all discrimination work of this sort as extremely important and it is right that its importance should be reflected in the marking category that we give it.