Appeal No.	 EAT/1136/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY
MISS A MACKIE OBE

MR J WILLIS	APPELLANT

MERSEYSIDE POLICE AUTHORITY AND OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S MUNASINGHE
(of Counsel)
Mr R Lawanson (Ref-LC/97/148)
Principal Litigation Officer
Commission for Racial Equality
Maybrook House (5th Floor)
40 Blackfriars Street
Manchester M3 2EG	

	JUDGE PETER CLARK:	The Appellant, who is of Irish origin and was, at the material time a  Chief Superintendent in the Royal Ulster Constabulary applied for the post of Assistant Chief Constable with the Respondent, Merseyside Police Authority.  He was not short-listed.  He brought a complaint of racial discrimination against the Respondent.  An Employment Tribunal sitting at Liverpool heard the case over 5 days.  In the end, they dismissed the complaints for the reasons promulgated with their decision on 16 July 1998.  

	They were very sympathetic to the Appellant; they thought he had been treated unfairly.  They found that he had been less favourably treated, in that he not been selected for interview; there was a difference in race; the explanation proffered by the Respondent, that the Appellant was not short-listed on the basis of a rational assessment of his curriculum vitae was not accepted by the Tribunal; they then asked themselves whether it would be right to draw the inference of unlawful discrimination, applying the approach in King, recently approved by the House of Lords in Zafar v Glasgow City Council (1998) IRLR 36.  They declined to do so, finding that the failure to short-list the Appellant was due to a rush to appoint the new Assistant Chief Constable in circumstances of ineptitude rather than being  on racial grounds.

	Against that decision, the Appellant now appeals.  On his behalf, Mr Munasinghe submits that this was a perverse decision; that having rejected the Respondents case that this was a professionally carried out selection procedure the Tribunal was bound to find unlawful discrimination; that the Tribunal had substituted its own view for that advanced by and on behalf of the Respondent.  Further, that the Tribunal has failed to indicate in its reasons that it had taken into account a submission that it was right to draw an inference of unlawful discrimination under and by virtue of Section 65(2)(b) of the Race Relations Act 1976; in view of the Tribunal’s factual findings on the replies given by the Respondent to the questionnaire submitted on behalf of the Appellant.

	We have considered those submissions with care.  The position is that one of our number considers that this case raises an arguable point of law.  In those circumstances and in accordance with our usual convention, the matter will proceed to a full appeal hearing.  The case will be listed for half a day, Category C.  There will be exchange of skeleton arguments between the parties, copies to be lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing.

	Finally, we shall extend the time for service of the Respondents’ Answer to the appeal to 28 days.