United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N BRAGANZA (of Counsel) Instructed by: Commission for Racial Equality Elliot House 10-12 Allington Street London SW2E 5HE
For the Respondent	MR C BREEN (of Counsel) Instructed by: Messrs Elliotts Solicitors Centurion House Deansgate Manchester M3 3WT


 


JUDGE H WILSON:

1. This has been the hearing of full argument on the Appellant's appeal against the finding of the Employment Tribunal that his claim alleging discrimination on the grounds of race should be dismissed. The Appellant is being represented today by Ms Braganza and the Respondent by Mr Breen who represented the Respondent before the Tribunal. For reasons, which I shall allude to later in this judgment, having considered the skeleton arguments and the submissions made to us by the advocates on each side, we have concluded that there is merit in the appeal. We consider that the Employment Tribunal's decision is flawed on 3 main issues.
2. First, having found on primary facts which are set out in paragraph 9 of the decision that the Appellant had been treated less favourably, that is to say:

He was discriminated against in that he was assaulted by Mr Brown

Insulted by Mr Brown

Teased by fellow workers because of his virginity

Harassed by fellow workers, moving his caravan and shaking it when he was within it

And having referred to the Court of Appeal judgment in the case of King v Great Britain China Centre [1991] IRLR 513, the Employment Tribunal failed to follow the guideline lists, set out by Lord Neil J in his judgment in that case. Those guidelines were expressly approved subsequently, by Lord Browne Wilkinson in the House of Lords case of Zafar v Glasgow City Council [1998] IRLR 36. We note in passing that Mr Breen's reference to Seide v Gillette Industries Limited [1980] IRLR 427 has to be read in the light of and subject to those later authorities.

3. Secondly it appears that the Employment Tribunal erred in divorcing religion from ethnicity. Having posed two questions and received written submissions thereon, as is demonstrated by the contents of their decision, the Employment Tribunal did not answer those questions. While the practice of a particular faith is not necessarily linked with ethnicity, it can be part of an ethnic cultural upbringing and therefore relevant to the matters of inference to be drawn.
4. Thirdly and finally, the Employment Tribunal erred in failing to adopt the approach to the totality of the Appellant's complaints, which is highlighted in the case of Quereshi v Victoria University of Manchester and Brazier [1996] EAT/484/95.
5. For those reasons we rule that the matter should be remitted to a completely fresh Tribunal for retrial as soon as possible and in light of that decision we make no further reference to the facts of the case because they should be at large before the new Tribunal.