Title: Appeal No.
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Last saved by: Joe
Company: Employment Tribunal Service

Appeal No.EAT/1468/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MS G MILLS
MR J R RIVERS

MR S S KUTTAPPAN	APPELLANT

1) MR S S BOYDEN	RESPONDENTS
2) MIDAS SECURITY GROUP LTD

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant

MRS S BELGRAVE
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme

JUDGE PETER CLARK

1.	This Appellant, Mr Kuttappan, spent 2 periods of employment as a Security Officer  with Firm Security Group Ltd (Firm), based at the Whitgift Centre in Croydon.  The first was from October 1994 until March 1995 and the second between August 1995 and July 1996.  The second spell of employment ended when he was dismissed for allegedly sleeping on duty.

2.	Firm supplied security guarding services under a contract made with Whitgift Centre Management Ltd, the third Respondent in these proceedings.  In June 1997 that contract ended and the third Respondent awarded the new contract to Midas Security Ltd (Midas), the second Respondent in these proceedings.  Mr Boyden, the first Respondent, was at all relevant times the Managing Director of Midas.

3.	In the proceedings, commenced by an Originating Application presented to the London South Employment Tribunal on 15 April 1999, the Appellant complained of victimisation and race and sex discrimination against all three named Respondents.

4.	The thrust of his case was that he had made a complaint of racial discrimination against Firm, following his dismissal in July 1996.  This was known to the second and third Respondents.  In August 1997 he was interviewed for employment by Midas but his application was rejected.  Thereafter he presented a complaint of race discrimination and victimisation, arising out of that rejection, against the second and third Respondents.  That claim was, in the end, settled in February 1999 but meanwhile he had acted as representative of other employees and potential employees of the second and third Respondents, in their complaints of sex and race discrimination.

5.	Between December 1998 and March 1999 the Appellant entered into correspondence with Mr Boyden about the possibility of his entering Midas’ employment.  Mr Boyden would not have the Appellant at any price.  That, claimed the Appellant, amounted to victimisation on the part of the first and second Respondents.

6.	He also made a similar allegation against the third Respondent.  That was in due course rejected by an Employment Tribunal sitting at London South under the chairmanship of Mr David Milton, as were all complaints made against the third Respondent.  The Appellant does not challenge those findings in this appeal.

7.	Further, the Appellant contended that in refusing to consider him for employment, the first and second Respondents discriminated against him on the grounds of his race.  He is Asian and of Indian national origin.  In that connection, he named as an actual comparator a white man, Mark Smith, who was employed by the first and second Respondents, despite having previously being disciplined, the Appellant alleged, for reporting for work under the influence of alcohol.

8.	The case was heard over 9 days by the Milton Tribunal, followed by a further 2½ days deliberation in chambers.  By a decision with very full extended reasons, promulgated on 29 September 2000, the Tribunal reached the following conclusions.

(1)	Unanimously, they dismissed the claim of direct racial discrimination brought against all Respondents

(2)	By a majority, they upheld the complaint of victimisation contrary to the Race Relations Act 1976 against the first and second Respondents and awarded compensation in respect of that complaint in the total sum of £2,500.00.
9.	The complaint of sex discrimination was dismissed on withdrawal by the Appellant.  Against that decision, Mr Kuttappan now appeals.  He takes 3 points, all of which we have considered and in relation to the third point, have had the advantage of submissions by Mrs Belgrave of Counsel, who has appeared on his behalf under the Elaas pro bono scheme.

10.	The points are as follows:

(1)	That the Tribunal was wrong to reject his claim of direct racial discrimination based on the comparison with Mark Smith.  There was a difference in race; Smith was white, the Appellant was Asian.  There was a difference in treatment; Smith was appointed on 1 March 1999, the Appellant was refused employment.  The Tribunal ought to have drawn the inference of unlawful discrimination

The Tribunal set out their findings on this aspect of the case at paragraphs 63-84 of their reasons.  They found Smith to be an unimpressive witness with a poor employment record.  They accepted the force of the Appellant’s case; that if Midas were ready to employ Smith with all his obvious drawbacks, but not the Appellant, that was disparate, unfair treatment of the Appellant.

If the Appellant had been an unknown Asian security guard with a good curriculum vitae and employment record, the Tribunal would have looked very carefully for conscious or unconscious racial bias against him on the part of the first and second Respondents.

However, on the particular facts of this case, they had no hesitation in finding that the first and second Respondents’ rejection of the Appellant was purely on the grounds that he was viewed as a trouble maker, not on grounds of his race.

If he had been a white trouble maker, he would have been treated in precisely the same way, held the Tribunal.  Whilst by a majority the Tribunal accepted that the Appellant had been victimised, they rejected any suggestion of discrimination on grounds of his race.

12.	It seems to us that that was a permissible finding open to the Tribunal on the facts as found and not one with which we can or should interfere; our powers being limited to correcting errors of law.

(2)	Next, he challenges the amount of compensation awarded in respect of the victimisation found proved.

	The question of remedy is dealt with by the Tribunal majority at paragraphs 86-100 of the reasons.  They had considerable reservations as to whether the Appellant really wished to work for Midas at the Whitgift Centre.  He was at the time busy representing others in their Tribunal cases and obtained a permanent civil service job to commence in August 1999.

	They did not think that it was a case for aggravated damages.  Allowing for the very small loss of a chance of employment with the Respondents as they found it to be, they awarded the total sum of £2,500.00 in compensation, to include compensation for injury to feelings.
	Mr Kuttappan submits that the proper award should be double that figure.  We cannot accept that submission.  The Tribunal had a very good opportunity to assess the evidence in this case over a long period of time, followed by lengthy deliberations in private.

13.	We cannot say that the award in this case was a wholly erroneous estimate of the damage suffered by the Appellant in this case.  Skyrail Oceanic Ltd v Coleman [1981] ICR 864, 872B per Lawton LJ.  In these circumstances we reject his second head of appeal.

(3)	Finally, the Tribunal’s reasons do not identify which member was in the minority and who were in the majority in arriving at their decision.

Mrs Belgrave submits that the minority member ought to be identified, not least so that, as a frequent litigant before the London South Employment Tribunal, and indeed as representative, he may object to that member sitting on one of his cases in the future.  However, the question for us is whether the decision was defective, as a matter of law and procedure, in not identifying the minority member.

	Rule 10(1) of the Employment Tribunal Rules of Procedure Regulations 1993 simply provides that the Tribunal’s decision may be taken by a majority.  As a matter of practice, the respective views of the majority and minority members ought to be clearly set out in the reasons Parkers Bakeries Ltd v Palmer [1977] IRLR 215.

However, Mrs Belgrave accepts that the Rules of Procedure 1993, as currently drafted, do not provide a requirement that the dissenting member should be identified and further that there was no authority to that effect.

	She has referred us to the Locabail decision on questions of bias and natural justice.  It is acknowledged that a court or Tribunal may be challenged on the grounds of perceived bias where extreme views have been expressed.  That, she submits, is the case here by particular reference to general observations made by the dissenting member at paragraph 114 of the reasons.

14.	It seems to us that there is no real practical difficulty in Mr Kuttappan making the objection in future cases.  His remedy is to write to the Regional Chairman at London South, inviting him to discover, as he plainly can, the identity of the dissenting member in this case, and asking that that member be not assigned to any future case in which Mr Kuttappan is involved. Whether or not that application will be favourably received is a matter for the Regional Chairman and not for us.

15.	Looking at the matter more generally, the practice as to whether to identify the dissenting member, varies in our experience.  Normally where the Tribunal Chairman is in the minority, that fact is revealed in the reasons.  But the identity of a dissenting lay member is not always made clear.

16.	That incidentally appears to be the experience also of Mr Milton, a very experienced Chairman, as appears from his letter to the Registrar in this case dated February 2001, to which Mrs Belgrave has specifically referred us.

17.	It seems to us, in the absence of a clear rule of procedure, that we cannot properly say that it was wrong in law for this Employment Tribunal to promulgate a majority decision without identifying a dissenting member.  We think that the proper course, the point having been raised, is for the matter to be brought to the attention of the President of Employment Tribunals, Judge John Prophet.  He may wish to consult with his Regional Chairmen and others on the point and to consider issuing advice to Tribunal chairmen in order to  standardise the practice.

18.	Having considered the three grounds of appeal in this case we have concluded, for the reasons we have given, that no error of law is here made out and accordingly the appeal must be dismissed at this preliminary hearing stage.

© Copyright 2001

EAT/1468/00

EAT/1468/00
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