United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLLS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: This appeal comes before us by way of preliminary hearing. The parties are a Mr Kawol and Shaw Homes Housing Association Ltd.

1. The appeal is against a decision of the Employment Tribunal, reasons for which were sent to the parties on 4 January 1999. The hearing took place on 16 November and 7, 8 and 16 December 1998. The decision was reserved and the unanimoust decision was that the Appellant's claim of race discrimination failed and was dismissed.
2. The claim was one of direct discrimination and the Appellant relied on a number of incidents.
3. Today the Appellant has the advantage of being advised and represented under the ELAAS scheme. Mr Nicholls, who represented him under that scheme, has helpfully put in a new Notice of Appeal which does not bear a great deal of relationship to the original Notice of Appeal. In that new Notice he raises under three heads, broadly, two grounds.
4. The first ground is to the effect that the Employment Tribunal did not correctly apply the approach in the Zafar case. The thrust of that argument is that they took an approach based on reasonableness rather than one based on comparison.
5. In their Extended Reasons there are a number of instances where the Tribunal do take an approach, whereby they conclude that something done by the employer was reasonable or justified. A problem in this respect is that there was no actual comparator, merely the potential for an analysis by reference to a hypothetical comparator.
6. It seems to us that there is considerable force in an argument that, if a paragraph had been added to the effect that there was no actual comparator in the preceding identified matters but having regard to our findings, we have concluded that the hypothetical comparator would have been treated no differently, that would answer the criticism levelled at the Extended Reasons.
7. The second broad description of the new grounds of appeal are that in reaching their conclusions on the inferences to be drawn, both in respect of cases where there was no actual comparator and in cases where there was an actual comparator, the Employment Tribunal do not give their reasons. It is said that that is a defect along the lines explained in cases such as Meek.
8. We accept that the Tribunal do not expressly give their reasons. Again, it seems to us, that there is force in the argument that the addition of a paragraph to the Extended Reasons to the effect that it is the earlier findings of primary fact made by the Tribunal, as to the behaviour of the Appellant and the Respondents, would answer this criticism.
9. An alternative argument may be that, having found the primary facts, the decision reached by the Tribunal is within the range of decisions that a Tribunal could make and therefore the inference they have drawn, albeit not fully explained, is one that should stand.
10. From the foregoing it will appear that we see there is force in arguments that, if the points are established that are now advanced on behalf of the Appellant, this Tribunal would nonetheless not remit and would dismiss the appeal. However, it was pointed out to us that under the Practice Direction what an Appellant has to show is a reasonably arguable point of law which gives this Tribunal jurisdiction.
11. We feel that that should be a reasonably arguable point of law that leads somewhere and leads to a reasonable chance of success but we accept there is force in the point that, if this Tribunal were to find on a full hearing that there had been an error in approach or an error in expression, it would have jurisdiction and discretionary issues would arise as to how the appeal should finally be disposed of.
12. We have therefore concluded that we should allow this appeal to go forward on the basis of the amended Notice of Appeal put in this morning because, in our judgment, that Notice of Appeal does raise points of law that are reasonably arguable as to (1) whether there was an error in approach (2) whether there was inadequate expression and (3), in our judgment importantly, an assessment of what is required of an Employment Tribunal when dealing with a discrimination case of this type, after they have found primary facts and thus as to their explanation of the conclusions they have reached both as to less favourable treatment and discrimination and thus, the two-stage approach to the composite question set out in Zafar. We have concluded that potentially that element of the argument has wide-reaching effects. We therefore propose to give this appeal Category A and to estimate it for a day.