United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR DAVID HARDSTAFF Solicitor Messrs Eversheds Solicitors 1 Royal Standard Place Nottingham NG1 6F2


 


MISS RECORDER SLADE QC

1. This is a preliminary hearing of an appeal by The Post Office against the decision of an Employment Tribunal in Birmingham which held that the Applicant, Mr Khan, was unlawfully discriminated against, on the grounds of his race, in respect of applications that he had made for promotion, acting up and refusal of overtime.
2. This matter has been listed to determine whether the grounds of appeal raise reasonably arguable points. The Employment Tribunal had before it two Originating Applications which raised complaints of race discrimination. One of the Applications also alleged victimisation. There is no appeal against findings of victimisation which the Tribunal made.
3. The first ground of appeal which is raised is that the Tribunal misdirected itself in law, and/or misapplied the law, by automatically drawing an adverse inference of race discrimination, after concluding that the Appellants had not provided an adequate explanation for the difference in treatment of the Respondent, Mr Khan. Mr Hardstaff, who appears for the Appellants, draws particular attention to paragraph 48 of the Tribunal's Extended Reasons, and in particular, the passage in which they say:

"We are therefore left with the only possible explanation that the treatment of Mr Khan was due to his race."

4. The Tribunal appeared to have approached the question of drawing of inferences of race discrimination in an appropriate way. In paragraph 29 of the Decision, the Tribunal set out their approach to drawing of inferences in what appears to be an unobjectionable way. They conclude that paragraph by stating:

"Whilst we may be entitled to draw an inference from the facts as we find them, we remind ourselves that we are not obliged to do so."

Moreover, in paragraph 48 of the Tribunal's Reasons, at the end of the paragraph, of which some criticism is made, the Tribunal say:

"We are prepared, on the primary facts as we find them, to draw inferences of racial discrimination against the respondents."

5. In our view, if this point had stood on its own, there may well not have been a reasonably arguable point as to misdirection in the approach that the Tribunal took to drawing inferences of race discrimination. However, that point does not stand on its own. It is linked to a criticism of the Tribunal's Decision made in the third ground of appeal that the Tribunal failed to give adequate reasons for its finding of race discrimination, and here, we consider that there may be some force in the Appellant's argument.
6. So far as the criticism, made by the Tribunal, of the failure to appoint Mr Khan to certain positions for which he made application, in our view, there is an argument that there are insufficient findings, and insufficient reasoning to enable the employers to know why it was that the inference of race discrimination was drawn.
7. We note that so far as the last batch of applications are concerned - the compendium application - the Tribunal appeared to have drawn an adverse inference, although they do not precisely say what adverse inference they drew, from the absence of a Mr O'Rourke from the Tribunal. He was a member of the interview panel for the compendium set of applications. We consider that there is some force in the argument that the Tribunal failed to give adequate reasons for its finding that there was race discrimination in the failure to appoint Mr Khan to the various positions.
8. Similarly, so far as the complaint that Mr Khan was not given the opportunity to act up is concerned, it appears that the Tribunal may not have dealt adequately with the explanation which was, we are told, advanced on behalf of the Respondents, that he had not been on an IOMS course. It is said that there was evidence before the Tribunal that it was only in exceptional circumstances that acting up was allowed to those who were not IOMS trained. There is no reference to that explanation in the Tribunal's Reasons.
9. Turning now to the second ground of appeal,which is somewhat subsumed in what we have said about grounds one and three; there is, we think, some force in the criticism made in ground two, that the Tribunal failed to consider the explanation advanced for the difference in treatment. The Tribunal appear to have considered an explanation for difference in treatment which was not, in fact, advanced by the Respondents, the Appellants before us.
10. As for the fifth ground of appeal, the Tribunal held that the Respondents, the Appellants before us, had discriminated against Mr Khan in the refusal of overtime. The Appellants contend that that complaint did not form part of his complaints in the Originating Application to the Tribunal. There appear to be grounds for making that complaint, and again, we consider that point is reasonably arguable.
11. As for the perversity argument, we express no view on that. At this stage, even on the basis of the findings made in the Tribunal's Decision, we have inadequate material from which to express a view as to whether that, as a separate ground, has a reasonable prospect of success. But, as we have said, there are grounds in this appeal which merit further consideration at a full hearing.