United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LAWRENCE DAVIES (Solicitor) Messrs Imran Khan & Partners Solicitors 52-53 Russell Square London WC1B 4HP
For the Respondents	MR NEIL SHELDON (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS

SUMMARY

Race Discrimination

ET failed to indicate whether section 54A of the Race Relations Act 1976 (reversal of burden of proof) was engaged despite submissions from both Respondents on that matter. Remitted to same ET to remedy that failure.


 


HIS HONOUR JUDGE PROPHET

1. On 18 to 22 August 2003 an Employment Tribunal sitting at London South with Mr Hall-Smith as the Chairman and Mrs Siggs and Mr Ibekwe as the lay members, held a hearing into a complaint of victimisation presented on 13 November 2002, under section 2 of the Race Relations Act 1976 brought by Mr Morrison against Wing Commander Osborne and the Ministry of Defence. Mr Davies, solicitor, represented Mr Morrison and the Respondents were represented by Mr Sheldon of Counsel. That hearing was followed by a Chambers meeting on 26 September 2003 and a reserved decision with extended reasons was duly promulgated nearly six months later on 15 March 2004.
2. The decision was expressed as that of majority of the members of the Employment Tribunal, i.e. the Chairman and Mrs Siggs, that Mr Morrison's complaint of victimisation was not well founded. Mr Morrison presented a Notice of Appeal on 23 April 2004, which Cox J directed by an order dated 7 June 2004 should be set down for full hearing before this Appeal Tribunal. We are constituted today to conduct that full hearing and we have the advantage of representation by the same legal representatives who attended at the Employment Tribunal.
3. It was common ground that Mr Morrison had alleged race discrimination against Wing Commander Osborne on 9 August 2000 and that that formed the protected act. It had been established at an Employment Tribunal Directions Hearing on 6 March 2003 as recorded in paragraph 2 of the Extended Reasons that there were ten allegations of victimisation arising therefrom. It was in respect of one of the allegations only that the Employment Tribunal gave a majority decision. In the other nine, their decision was unanimous that there was no victimisation.
4. The allegation of victimisation which resulted in a majority decision has been referred to in these proceedings as 'item six', and was in respect of a special report prepared by Wing Commander Osborne and Squadron Leader Bowers on 31 May 2001 which recommended that Mr Morrison transfer out of Surrey Training Corps and be removed of his responsibilities. The majority were unable to find any victimisation arising from that but Mr Ibekwe the minority member, took the view that there was victimisation in regard to that matter.
5. The principal problem which has arisen in this appeal by Mr Morrison against the majority decision relates to section 54A of the Race Relations Act 1976, which deals with the possible reversal of the burden of proof in race discrimination cases including victimisation cases. Both the legal representatives in their submissions to the Employment Tribunal referred to that section and the wording of the section itself is reproduced in the Employment Tribunal's reasons. However, the Employment Tribunal do not appear at any time to have addressed those particular submissions. Nothing in the reasons clearly indicates that they did so.
6. It is not satisfactory for an Employment Tribunal merely to set out the terms of section 54A which forms an important recent amendment to the Race Relations Act 1976. If it is alleged in the submissions that that section may apply the Employment Tribunal has a duty to indicate whether they agree that that section is engaged and if not, why not? The result of not doing that is that the Tribunal may not be approaching the matter before it in a satisfactory way.
7. Accordingly, we have decided that the appropriate course to take in this case is for the Appeal to be allowed to the extent that the matter be referred back to the same Employment Tribunal on the basis that a short hearing is required at which no further evidence can be given but submissions can be made by the legal representatives on the application or otherwise of section 54A to item 6. It will then be for the Employment Tribunal to give a further decision with extended reasons in respect of the outcome having clearly considered this matter.