United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARJIT GILL (of Counsel) Commission For Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH


 


JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North on 15 and 16 December 1998 when a complaint of racial discrimination was dismissed. The reference to only one day in the decision of the Employment Tribunal is a typographical error. The appeal comes before us today by way of preliminary hearing to determine whether or not there is a point of law to justify this matter being heard in full before the Employment Appeal Tribunal.

1. We have had an opportunity of hearing argument by Mr Gill on behalf of the Appellant. There emerged one slight puzzle which we mention in case, when the matter is remitted for Chairman's notes pending the full appeal, the Tribunal Chairman may have some observation one way or the another about it. In our papers the paragraphs 6 to 11, which were on page 12 of our bundle, and were part of the Originating Application were missing. On the face of it, they contain certain allegations of race discrimination which Mr Gill argues were the ones not addressed in the decision of the Employment Tribunal. But we have now had an opportunity of seeing that page which at some time through error was omitted from our papers.
2. We do not consider that it is helpful in this case to narrow the issues that are raised. Those are clearly set out in the Notice of Appeal and it seems to us that the parties are alive to the issues that have to be argued and that there is no real narrowing that can helpfully done at this stage by us. The Notice of Appeal clearly raises issues of law which merit consideration in full. Without narrowing the Notice of Appeal, we pinpoint the main allegations as being;

(a) whether the Tribunal omitted to consider in their decision some of the allegations of racial discrimination in fact made at the hearing

(b) whether, in considering if admitted and racially stereotype names amounted in this case to unlawful discrimination, the Tribunal applied an appropriate test

(c) whether the Tribunal made adequate findings and asked themselves the correct questions as to first, less favourable treatment, and secondly, as to whether any less favourable treatment found by them amounted to unlawful discrimination on the ground of race.

We have had the advantage of hearing for a moment or so from Mr Duggan, who is Counsel for the Respondents, and the additional advantage is that Counsel now engaged both appeared on the original hearing before the Employment Tribunal, so there will be a good deal of continuity.

3. It is clear that there will be a substantial issue between the parties as to what matters of complaint were actually contained in the evidence before the Employment Tribunal, as opposed presumably, to those actually referred to in the documentation. Because of that, and because the nature of this appeal is to question in part whether the Employment Tribunal adverted to the evidence about a number of complaints, we are driven to the conclusion that it is necessary to request the Chairman to provide his notes of the evidence in this case. We cannot think of any way to narrow that request. We are aware, particularly as this was a two day hearing, of how onerous this request will be, but for the just consideration of the appeal, we can think of no way of avoiding such a direction.
4. The grounds set out in the Notice of Appeal in our judgment justify a full hearing. It will be listed for one day in Category C. We direct that Skeleton Arguments be submitted by the parties not less than 14 days before the hearing, and we request the Chairman to provide his Notes of Evidence. They should include copies of any witness statements submitted to the hearing at the Employment Tribunal.
5. Within 14 days of the receipt of the Chairman's Notes of Evidence, the Appellant will file a schedule indexed to those notes and any document identifying those incidents of discrimination, that it is alleged were not referred to or taken into consideration by the Tribunal in their decision, and 14 days thereafter the Respondents will file a response to that schedule and to any other matters which they consider will help to clarify the issues before the Employment Appeal Tribunal.