Appeal No. EAT/26/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th July 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR R JACKSON

	MR K M HACK JP

MRS J DIXON	APPELLANT

THE HOME OFFICE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J HALSON
Solicitor
Liverpool 8 Law Centre
36 Princes Road
Liverpool
L81 TH

	MR JUSTICE KNOX:  This is an appeal by Mrs Jaspal Dixon from a decision by the Industrial Tribunal sitting at Manchester on the 12th November 1992, and sent to the parties on the 27th November 1992, that Mrs Dixon was not unlawfully discriminated against on racial grounds by the Respondent, the Home Office.  This was in connection with her exclusion from one of the prisons, H M Prison Styal, on the instructions of the Governor on the 7th June 1991.

	Mrs Dixon was, in fact, employed by BUPA and worked under contract for the Home Office Prison Service and the dates that are given in her Originating Application of employment are rather less than 3 months duration in the early part of 1991.  It is therefore clear that this is not a case of an application for relief under the Employment Protection (Consolidation) Act 1978 in respect of unfair dismissal. 

	The procedures that were adopted were indeed summary and it is not necessary to go into the details more fully than to say that there was a report by one of the inmates that Mrs Dixon had alerted some inmates in the unit that drugs had been found and a special watch was being kept and that she had also, allegedly, engaged in gossip about four Prison Officers' private lives.  There was a very swift action in relation to that.  There was a verification inside the Prison of whether the informant was a reliable source of information and on the basis that the answer to that question was "yes" Mrs Dixon was excluded and was not, it would appear, given much of an opportunity to defend her actions or challenge what was being said.

	The question that was to be answered by the Industrial Tribunal was put by Mr Halson, so the Tribunal records, in the following terms:
		"would a white agency nurse have been excluded?"

and in our view, that was indeed the right question.  

	The definition of racial discrimination, of course, allows for the possibility of there not being factually a true comparator.  Section 1(1)(a) reads:
		"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

	(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons."

Now the fact is that there was no comparator.  The agency nurses are, it would appear, not very numerous, if there are any at all, and there was a distinction drawn between the way in which employee nurses, employed by the Home Office on the one hand, and agency nurses who came in from outside on the other hand, were treated.  Of course, that intrinsically is not a distinction drawn along racial lines, because it is a self-evident proposition that a person in either category of employed or contract nurse could be of any ethnic origin.  The question therefore does revolve entirely around the answer to the hypothetical question that was correctly posed, as we see it, by Mr Halson to the Industrial Tribunal.  They answered it, having heard six witnesses, from the Governor down, firmly in the sense that they could draw no inference from the facts that they found that there was any less favourable treatment on racial grounds, and they find positively a white agency nurse would also have been excluded.  So they answered the question that Mr Halson put to them in the sense of "yes".

	Mr Halson argues before us today, in support of the Notice of Appeal, that there were serious flaws in the way in which the procedure was carried out.  He emphasises the fact that there was a lack of natural justice in treating Mrs Dixon as summarily as she was treated and that there appeared to be a failure to follow up the security implications of the accusations that were found, at any rate, to be sufficient to justify Mrs Dixon's exclusion and that this was another flaw to be detected in the procedures that were adopted by the Home Office and its staff.  He made it clear that the attack on the Industrial Tribunal's decision was that it was perverse and indeed, nothing else would, as we see it, suffice to enable this Tribunal, which is limited to questions of law, to interfere with so categoric a finding on a question of fact, albeit a hypothetical question of fact, would a white agency nurse have been excluded?

	We have given careful consideration to those two submissions in relation to the failure to give natural justice and the security implications of what subsequently was done or not done but it does not seem to us that it is possible to come to the conclusion that no tribunal, properly directed, could have reached the conclusion that this Tribunal did.  Given the evidence that it had by the witnesses for the Home Office, it had a task of answering a hypothetical question which the Act required it to tackle and it did it, we must assume, to the best of its ability, and we can see no basis on which it can be said that there is an error of law in the solution to this obviously not very easy problem.  Neither natural justice considerations nor security implications have any direct impact on whether there was unlawful discrimination.

	In those circumstances it seems to us that this appeal should be dismissed at this stage.