United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE KEENE: This is the preliminary hearing of these appeals to determine whether there is an arguable point of law which justifies letting them go forward to a full hearing. The appeal is against the unanimous decision of an Employment Tribunal sitting at Bristol which dismissed a claim by the appellant of racial discrimination.

1. Mr Plettell is a man of Indian origin, although the tribunal found that that was not apparent from his name.
2. We are satisfied that there is an arguable point of law which is raised on the appeal against the substantive decision and we, by our order, will allow that to proceed to a full hearing. As a matter of form, we will allow the appeal also to go forward in respect of the refusal of a review which is the other appeal before us.
3. We do so with some caution, because on the face of it, paragraph 11 in the tribunal's decision, with its finding that Mr Base was not aware of the appellant's race at the time when the shortlist selection was drawn up, would seem to be at first blush fatal to the appellant's chances of success. It is of course axiomatic that it is for the tribunal which hears the witnesses to decide upon credibility.
4. However, Mr Plettell has persuaded us this morning that there are arguable grounds and, in particular, the approach adopted by the tribunal to the issues arising in respect of Mr Dumbleton. It seems clear that Mr Dumbleton in his job as human resources adviser was aware of the ethnic origin of the appellant. In his role he was required to provide line managers with advice on recruitment and selection, so that one might expect that knowledge to be passed on to those dealing with the selection of a shortlist for the vacancies in this case. Indeed, Mr Plettell tells us that there was evidence before the tribunal that Mr Dumbleton was there at the meeting when the shortlist was drawn up. That is certainly not apparent from the tribunal's decision.
5. But we are troubled by the way in which the tribunal dealt with Mr Dumbleton's role. In paragraph 10 of the decision the tribunal says that there is a suggestion that Mr Dumbleton was involved in the selection process. Having identified that suggestion, the tribunal then arguably did not deal with it and say whether or not they found that suggestion to be justified. We, for our part, cannot in the course of this preliminary examination of the merits find whether the tribunal accepted or rejected that suggestion. It seems to us to be arguable therefore that there is a lack of a clear finding on something which was of central importance to the application. That is the main basis upon which we are prepared to allow these appeals to go forward.
6. It seems to us however that there may also be subsidiary arguments which Mr Plettell can properly advance and we do not propose to shut those out. He has made reference this morning to the fact that the tribunal at places in its decision seems to have found the company's explanations for not shortlisting him to be unsatisfactory and yet they find that there was no racial discrimination. It may also be that there is a degree of inconsistency in the tribunal's decision between paragraph 8, where the tribunal expressly finds that the vacancies did match the appellant's knowledge and experience, and paragraph 12 where they seek to set out their understanding of the non-racial basis for not selecting the appellant.
7. For all those reasons, it seems to us, that there is an arguable appeal here which should go to a full hearing. As I have indicated, we will link the appeal against the refusal of a review to the main appeal itself.
8. So far as directions are concerned, this is an appeal which seems to us to require the production of the Chairman's Notes of the whole hearing. There will also be an order that skeleton arguments from both sides be exchanged not less than 14 days before the date fixed for the full hearing. The case to be listed as Category C.