United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr T McGrade, Solicitor Of- Messrs McGrade & Co Solicitors Sovereign Centre 5 St Vincent Place GLASGOW G1 2DH
For the Respondent	Ms J Cherry, Advocate Instructed by- Office of the Solicitor to The Scottish Executive Executive Secretariat Area G/C Victoria Quay EDINBURGH EH6 6QQ

SUMMARY
RACE DISCRIMINATION

Race discrimination – case dismissed – religious discrimination


 


LORD JOHNSTON:

1. This appeal arises in rather an unusual way and from rather unusual circumstances.
2. The appellant, representing himself at the time, brought a claim against the Scottish Ministers, now respondents, in the Employment Tribunal at Dundee, that he had been discriminated against on racial grounds in the course of his employment. In particular, he made allegations that derogatory remarks of a racial nature were made against him or to him by fellow employees, who were his line managers, and these are found most usefully summarised in a document A3 which the appellant presented to the Tribunal on the second day of the hearing rehearsing evidence he had given on the first day.
3. While the appellant was being cross-examined by Counsel for the respondents, the Chairman of the Tribunal interrupted, raising a question of law to the effect that the complaint really being made by the appellant was not discrimination on racial grounds, but, rather on religious grounds, which at the time of the hearing did not fall within the concept of the Race Relations Act as defined by section 3 thereof. The Chairman adjourned during the course of the first day and again adjourned overnight to allow the appellant to consider his position and to take advice. It appears that the appellant did take some advice and when appearing on the second day sought to suggest that his claim was really based on race. However, he brought no new evidence. It therefore followed that at the time that the case was dismissed, which it was on the basis of the Chairman's view of the true issue was religious discrimination, the appellant's evidence was concluded.
4. Before us, Mr McGrade, appearing now for the appellant, accepted that during the course of his evidence in chief in answer to a question from the Chairman, and this is borne out in the findings of the Tribunal and also in the Chairman's report, that his real complaint was because he was a Muslim.
5. Mr McGrade submitted to us that the Tribunal should have allowed him to continue with his evidence and seek to substantiate his claim for racial discrimination. In any event, he submitted, that the decision of the Tribunal was perverse. Miss Cherry, appearing for the respondents, submitted that there were exceptional circumstances which warranted the Chairman bringing the matter to an end when he did, not least having regard to the fact that there was scheduled some 10 days of evidence and a very considerable number of productions. The situation, she submitted, was different from no case to answer, rather disclosing, on the face of the evidence, the undisputable fact that the Tribunal had no jurisdiction. On any view of the matter that could not be perverse.
6. We were referred to Coral Squash Clubs Ltd v Matthews [1979] IRLR 390, Logan v Commissioners of Customs and Excise [2004] IRLR 63 and Yeboah v Crofton [2002] IRLR 634.
7. We are in no doubt that in the exceptional circumstances focussed on this case and the frank admission that was made by the appellant on the first day of the evidence, the Tribunal was more than entitled to conclude at the conclusion of his evidence, that the claim was based upon religious and not racial discrimination. We also consider the Chairman was entitled to take the view that the matter should not be re-run on the same track, given the nature of the evidence given by the appellant in chief. We therefore conclude that the Tribunal were entitled to take the course they did, particularly faced with a potential 10 day hearing and considerable expense. Indeed, on the basis of the appellant's evidence in chief, if the case had run its full course to that extent, he might well have been exposed to a claim for costs.
8. In all these circumstances we consider this appeal requires to be dismissed.