United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON And MS BURNHAM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J HICKS QC: We propose to direct that this appeal proceed to a full hearing on two grounds only. Those are the grounds dealt with at the top of the second page of Appendix 1 to the Notice of Appeal, setting out the grounds of appeal. The paragraphs are unnumbered, but the first of the two paragraphs in question raises the Tribunal's treatment of the continuing discrimination point and the second raises the question of the Tribunal's treatment of the issue of prejudice.

1. If Mr Tyagi were represented we would require the Notice of Appeal to be amended to make those grounds clearer or more explicit, but since he is in person that would probably be a pointless exercise and those two paragraphs do, we think, as they stand at the moment, sufficiently direct attention to those two quite distinct issues. What we therefore propose to do is to direct that the appeal proceed on those two grounds and that the remaining grounds be struck out. We must therefore give our reasons for dismissing the appeal on the other grounds.
2. The paragraphs, as I say, are unnumbered, but the first takes the point that the Tribunal failed to take into consideration all the circumstances surrounding the application. There is no justification in allowing that to proceed as a free-standing ground. In so far as it is covered by the two grounds that are going forward it will be dealt with and it is impossibly wide and general to go forward as a separate ground of appeal.
3. The next point taken is that Mr Tyagi was justified in taking no action in regard to the alleged discrimination at the interview of 18 April 1997 because the BBC World Service meanwhile unfairly dismissed him and his submission is that that had two consequences. The first is that, as we understand it, the lesser detriment of being refused promotion was subsumed in the greater detriment of being dismissed altogether, even from the post that he then held. The second is that since he was now out of work all his time and attention were devoted to redressing that situation. There is, in our view, nothing in those points; there was absolutely no reason whatsoever why an application on the ground of the discrimination allegedly suffered in the interview of 18 April 1997 should not go ahead simply because Mr Tyagi was subsequently dismissed.
4. The next point taken is that the question of internal investigation of Mr Tyagi's grievance should have been ground for an extension of the time limit and Mr Tyagi in his grounds of appeal puts it this way:

"… that the period when an employer and employee are engaged in mutual dialogue in redressing the complainant's grievances has to be excluded when counting the time limit …"

Whether or not that is an accurate statement of the present situation in law (and we are, to say the least, doubtful whether it is) it plainly does not apply to the facts of this case, where there was no question of a continuing mutual dialogue in dealing with Mr Tyagi's grievances. Indeed, his whole complaint is that nothing whatsoever was being done or considered in relation to them.

5. Then there are the two paragraphs which we are allowing to go forward, and finally there is a complaint that the Tribunal was not right in accepting the Respondent's claim that Mr Tyagi was in receipt of both Trade Union and Solicitors' advice at the time. That is a finding of fact and, whether right or wrong, there is no ground for alleging that the Tribunal erred in law in reaching that conclusion.
6. In addition to those printed grounds of appeal Mr Tyagi has argued various points before us. There is some overlap and where that is the case we shall not repeat ourselves, but he took a point that the act of discrimination was not complete until a person from the favoured group (as he put it) was appointed. That was, he says, a Mr Vishnushanka, appointed in mid-1998, but in our view it is absolutely clear that by virtue of section 1(1)(a) of the Race Relations Act 1976 the relevant act of discrimination is the failure to treat the Applicant as favourably as the employer treats, or would treat, other persons which must, on the basis of the single - act basis of Mr Tyagi's application, relate to the interview of April 1997.
7. Mr Tyagi also says that it took more than six months to see that there was no vacancy. That seems to be the same as the last point, although with even less force because six months from April 1997 would still have left his application out of date by a very wide margin.
8. Those are the additional points. The other matters which he submitted in argument go to the same points as in his written grounds of appeal.
9. Those are our reasons for dismissing those other grounds and the appeal will therefore go forward on the two grounds only which I have identified. There must be skeleton arguments filed and lodged by both parties 14 days before the hearing.