United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE PETER CLARK:

1. The Appellant, Mr Jackson, is black and of African-Caribbean racial origin. He is a well-qualified social worker, holding a Masters degree and the professional qualification CQSW. He has engaged in social work and related activities since 1983. During his career he was employed by this respondent, East Sussex County Council, from September 1996 until March 1998.
2. In about May 1999 he applied for the post of Service Manager which was advertised by the respondent in the national trade magazine and internally.
3. On 12 May 1999 a panel of three met to consider short-listing candidates for the post. An Employment Tribunal sitting at Brighton on 14 October 1999 to hear Mr Jackson's complaint of unlawful discrimination brought against the respondent found, in extended reasons promulgated with their decision dismissing his complaint dated 19 October 1999, that the panel scored each of ten candidates according to a standard scale used by the respondent for recruitment. The top four candidates were selected for interview; the remaining six, including the appellant, were not. He scored the lowest of all the candidates.
4. The Employment Tribunal accepted that the appellant had been less favourably treated than the four short-listed candidates. They record that there was no evidence as to the racial origins of those four. In these circumstances the tribunal proceeded to consider the respondent's explanation for not short-listing the appellant. They accepted that explanation, which was that the appellant had not demonstrated in his application form that he had the requisite qualities for which the respondent was looking. In particular, it was thought that he had insufficient management experience, necessary for the post of Service Manager and that he merited only an average mark for written communication skills due to the poor presentation of his written application form.
5. The tribunal noted that two of the three panel members were aware of the appellant's race, he having previously worked for the respondent, but concluded that they disregarded that factor when considering his application.
6. In short, they rejected the appellant's claim of racial discrimination.
7. The tribunal having announced their decision, counsel for the respondent made application for costs. At that point the appellant left the tribunal room. In his absence the tribunal considered that application and by a majority found that the appellant had acted unreasonably in bringing or conducting these proceedings, particularly in light of an earlier, unsuccessful complaint brought before the Employment Tribunal against the same respondent, and ordered him to pay £500 costs.
8. Against the tribunal's decision this appeal is brought. The notice of appeal and grounds of appeal were settled by the appellant himself.
9. Today at this preliminary hearing he is represented by Mr Laddie of counsel, under the ELAAS pro bono scheme. Mr Laddie has sought, and we have granted, permission to amend the grounds of appeal by substituting new and different grounds.
10. Essentially, two points are taken. First, it appears that on 3 October 1999 the appellant wrote to the Employment Tribunal saying that he had written earlier to the respondent on 19 September asking for copies of the application forms and information regarding the successful candidates who were short-listed. There had been no response from the respondent and he sought an order from the tribunal for discovery of documents. He said this:

"These documents are needed to form part of my evidence and if I have them before the hearing it would prevent any unnecessary delays to the hearing at the hearing of 14 October 1999.

11. That application was put before a Chairman of Employment Tribunals and a reply was sent on 6 October refusing to make an order. Without going into the details of this particular case, the Chairman indicated that he considered an order unnecessary to fairly dispose of the proceedings or save costs and that the issues appeared to be clear. He added that further particulars relating to evidence will not usually be ordered.
12. Mr Laddie submits that the refusal of the Chairman at the interlocutory stage to order the discovery of the documents sought by the appellant materially hampered him in the difficult task for any applicant in a complaint of race discrimination to persuade the tribunal to draw an inference of unlawful discrimination.
13. It is right to say that the appellant did not renew his application for discovery at the hearing but we can understand the submission made on his behalf that, having been rejected at the interlocutory stage, the appellant might well have felt that no purpose would be served by renewing the application.
14. We have some anxiety on this point. The procedure for hearing complaints of unlawful discrimination frequently allows for discovery of what we would describe as "the usual documents". We think it arguably wrong to have refused that application in this case. That then, we think, may have a knock-on effect both as to the question of liability, which was decided adverse to the appellant by the Employment Tribunal and also on the question of costs. The tribunal's decision on costs depends on the proposition that the appellant ought to have been aware that there was no evidence to support his complaint of race discrimination. We think it is arguable that he was handicapped in not having the material which he had sought by way of an order for discovery.
15. In these circumstances we shall allow the matter to proceed to a full appeal hearing on both points raised, that is in relation to the question of discovery and in relation to the costs order.
16. For the purpose of the full appeal hearing the case will be listed for half a day, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. No further directions are necessary.