United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K UNDERWOOD (of Counsel) APPEARING UNDER EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS)


 


MR JUSTICE MORISON: The purpose of this hearing is to determine whether there is an arguable point of law in a Notice of Appeal which the Appellant, Mr Sikpi, wishes to make against the unanimous decision of an Employment Tribunal held at Stratford after a two day hearing which rejected his complaint of unlawful discrimination on grounds of race and his complaint of breach of contract.

1. The Employment Appeal Tribunal panel sitting this morning have expressed concern about the decision in general terms and a feeling of general discomfort. Those feelings alone would not justify the matter going forward for a full hearing because there has to be some identifiable arguable point of law.
2. The point of law that we consider to be arguable can be put in this way. In paragraph 8 (1) of the Tribunal's decision, they make findings of fact and express their own concern about the conduct of Mr Moonoosamy, who was the manager whose conduct lies at the heart of the case. They concluded they had no doubt that looking at the facts and what Mr Moonoosamy did that if this were a straight unfair dismissal claim, the Employment Tribunal would have been persuaded that the employers had acted unreasonably in the conduct of the disciplinary hearing. They noted that one of the matters that led to a disciplinary charge was a ten minute lateness for work on 12 June, coupled with what is described as a falsification of the time sheet, I imagine recording arrival at 8.00 am rather than ten minutes past. The Tribunal went on to say in paragraph 8.2:

"In the event we have made a finding that the dismissal was substantially for a reason which was legitimate and not such as to constitute less favourable treatment. It follows that is not appropriate for us to consider the drawing of inferences because the Applicant has not made out the foundation of a discrimination claim in respect of the dismissal (the only matter about which he complained)."

3. It seems to us arguable that the Tribunal's conclusion that the dismissal was substantially for a reason which was legitimate and not such as to constitute less favourable treatment, involves a non sequitur. The fact that a reason was a legitimate reason in terms of unfair dismissal does not mean that the Applicant was thereby not treated less favourably than others were or might have been. In any event, it is arguable, as it seems to us, that by their decision not to consider drawing inferences given the findings to which we have referred, the Tribunal disabled themselves from fulfilling their duty in applying the criteria set out in King.
4. By identifying those points of law, we do not wish to imply any more than that we consider those points to be arguable. We are not in any way expressing a view as to what the outcome of those arguments would or might be at the full hearing. We are satisfied that the matter should go further on those grounds. I do not consider that it is necessary that there should be an amendment to the Notice of Appeal to deal with those grounds because it seems to me that this judgment, which will be available to the Employment Appeal Tribunal, will have defined sufficiently the grounds which are susceptible to argument and the appeal will be confined to those grounds at the full hearing.
5. The Respondents have kindly supplied us with a PHD form. They of course have addressed their attention to the Notice of Appeal as it was originally filed. In due course they will no doubt require to put in an answer to the Notice of Appeal. As at present advised they were of the view that no notes of evidence were required for the purpose of this appeal. I am currently of the view that this appeal can be argued without notes of evidence, but I contemplate the possibility that the Respondents themselves may wish the notes to be provided having read the terms of this judgment, and if they do, then of course the matter can be raised at a directions hearing for determination of that question.
6. I express the view as I have indicated that notes will not be required. It is a question of looking at the decision itself and forming a view as to whether the Employment Tribunal has erred in law. I would estimate that this is a three-quarters of a day hearing. It is, as all discrimination cases are, important and it should be listed as a Category A case. There are no further directions that need to be made at this time.