United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	ADRIAN ILES (of Counsel)
For the Respondents	EMMA DIXON (of Counsel) Lewis Silkin Solicitors


 


MR JUSTICE NELSON: In the judgment of the EAT at paragraph 52 we invited submissions in writing from the parties as to whether the issue of causation should be remitted to the Tribunal which made the decision appealed against or whether it should be dealt with by a different Tribunal.

1. The Appellant's submissions are set out in letter of the 23rd October and 31st October 2000. The Respondent's submissions are set out in a letter of the 25th October 2000. We have considered the letters.
2. The Appellant contends that she had lost confidence in the Stratford Employment Tribunal which heard the matter at first instance and does not believe that her case will be dealt with fairly there. She requests that her claim for victimisation be remitted to another Tribunal, the London (North) Employment Tribunal or alternatively Croydon. If that is not possible she wishes the matter to be remitted to a differently constituted Employment Tribunal at Stratford
3. The Respondent submits that the matter should be remitted to the original Employment Tribunal which has already heard lengthy evidence in the case. A freshly constituted Tribunal would necessitate hearing the majority of the evidence again, going over the same ground as that already heard by the original Tribunal, and that this exercise could take two or three days. The events took place in May and June 1997 and the Employment Tribunal hearing was between August and December 1998. Neither Mr Adama nor Mrs Selwood now work for the Respondents. In both fairness and for minimising further sizeable costs in the matter the Respondent submits that the causation hearing should be remitted to the original Tribunal.
4. We are satisfied that the matter should be remitted to the original Tribunal at Stratford. We have found that the Tribunal addressed the appropriate questions under the law as it then stood, and that they considered the issues and the evidence with care. We were clear in our view that their findings of fact were properly open to them, and that none of their findings were perverse. Having heard the evidence, albeit now nearly two years ago, they are in the best position to determine the issue created in the decision in Nagarajan in the House of Lords, namely whether the Respondents had been influenced by the Appellant's complaints of racism in their decision to suspend her and then dismiss her. The Tribunal decided the matter on the basis of conscious motivation but must now consider whether the clear complaints of racism were such that the Respondents were influenced by those complaints, albeit subconsciously, in making the discriminatory decisions they have been held by the Tribunal to have made.
5. The fact that that Chairman said in correspondence that subconscious motivation had been considered by the Tribunal, but in view of the law it was unnecessary for their views on that to be incorporated in their decision, does not prevent the matter from being remitted to them.
6. Indeed it is appropriate in terms of expedition, expense and fairness that the matter is remitted to them, as we so order.

Costs

7. We have considered the Appellant's application for costs which is based on the argument that the matter was clear and obvious after the decision in Nagarajan in the House of Lords and should have been conceded by the Respondents, who by failing to do so, unnecessarily caused the cost of the hearings to be incurred.
8. We do not accept this contention. Whilst we have decided in the Appellant's favour we do not consider that it was unreasonable of the Respondent to contest the matter on the facts of the case. Their conduct was not such as to make it appropriate to make an order for costs against them and we refuse the Appellant's application.