United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Ms A Jones Solicitor Employment Law Division Maclay Murray & Spens Solicitors 58 Queen Street Edinburgh EH2 3NS


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for preliminary hearing, Scottish Courage Brewery Ltd seeks to have set aside as erroneous in law the Decision of the Manchester Employment Tribunal after a six day hearing in November 2000 and February 2001, embodied in Extended Reasons sent to the parties on 4 April 2001.
2. In that Decision they found the Scottish Courage Brewery which was the employer of Mr Timothy Thomas Scott liable for racial discrimination by failure to afford access to opportunities for promotion to the best production job in the brewery, which had its culmination in the appointment of a Mr McManus to the "Beer Handling" post that Mr Scott wanted on 25 January 1999.
3. Ms Jones, who has appeared on behalf of the Appellant before us today has sought to argue two principal points on the Notice of Appeal dated 16 May 2001, subject to modification by her in the course of her oral argument before us.
4. The first question on which we think there are arguable grounds to warrant our directing this case to go forward to a full hearing before the Employment Appeal Tribunal was one on which we did not ask her to address us orally as we were all satisfied that there is a potential issue that warrants an inter partes hearing. That is, whether the Tribunal misdirected themselves in paragraph 48 of their Extended Reasons, on page 18 of the appeal file, in holding that they should admit Mr Scott's claim, the acts of racial discrimination they identified having all taken place outside the normal time limit of three months for bringing a claim. Their reason was that as they put it, it was the actual appointment of Mr McManus to the job on 15 January 1999, when he had had the benefit of the earlier training that Mr Scott had not obtained, which was:

"not an act of discrimination in itself but it was the occasion when the effect of the discrimination crystallised for this particular applicant"

We think that there is a possible ground of argument, as contended in the Notice of Appeal, as to whether the Tribunal misdirected themselves in the way they approached the question of their jurisdiction to entertain Mr Scott's complaint at all, in those circumstances. We will say no more about that except that we will direct that to go forward as an issue for the full Tribunal to hear.

5. With more hesitation, we also accept Ms Jones' submissions that there are potentially arguable grounds on the Tribunal's actual finding of racial discrimination on the facts of the case. We have had reservations about this because we are very conscious that it is not a function of the Appeal Tribunal to go over grounds of factual evidence which has already been dealt with by the Tribunal, and that issues of fact and degree are for the Employment Tribunal and not this Tribunal to deal with. Nevertheless, we have been persuaded that there is an arguable ground for saying here that the Tribunal erred in reaching a conclusion of racial discrimination, without identifying sufficiently the grounds on which they reached that conclusion, in paragraph 48 of their Decision where they simply said:

"We have had to ask ourselves "Do we infer that the applicant's disadvantage had occurred on racial grounds? It has been a difficult decision but on balance we have decided that we do so infer. In our view he has suffered less favourable treatment over a period up to 17 October 1998 and again in the short period between 14 December and 28 December 1998."

We consider that that gives rise to potentially arguable points: first on whether the Tribunal's conclusions as there expressed are based on sufficient grounds, having regard to the earlier factual findings and the evidence in the case referred to in their Decision; and secondly, whether that passage amounts to a sufficient explanation of the reasons which led the Tribunal to the conclusion rather than simply a statement of the conclusion itself.

6. On those two principal issues we will direct that the case should go forward to a full hearing of the Employment Appeal Tribunal. We give leave to lodge an amended Notice of Appeal identifying those issues more closely within fourteen days from today. We direct that the case be set down for a full hearing on these, listing Category C, estimated length of hearing four hours. We do not take the view that this is a case where we need to direct any production of the Chairman's notes of evidence. Skeleton Arguments for the full hearing are to be exchanged between the parties and lodged with the EAT office not later than fourteen days before the date to be fixed for the full hearing.