Appeal No.	 EAT/1263/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MRS M E SUNDERLAND JP

(1)	MR K SHARMA 
(2)	MR E EVANS	APPELLANTS

LIVERPOOL CITY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR C HAY
Representative
Northern Complainant Aid Fund
Check Point
45 Westgate
Bradford BD1 2TH	

	JUDGE PETER CLARK:	This appeal concerns a 36 day hearing before the Liverpool Employment Tribunal in which the two Appellants brought various complaints of unlawful racial discrimination and victimisation by their Originating Applications against the Liverpool City Council, by whom they were employed, and certain named employees.

	The specific findings by the Tribunal in their reasons promulgated on 1 September 1998 which form the background to these appeals are:

	(1)	A finding at paragraph 8.18.13 of the reasons that less favourable treatment afforded to Mr Sharma in the form of delay in authorising additional counselling was not because he was of mixed parentage, but was consciously motivated by his complaints against two members of staff and his complaint to the Tribunal.  However, the Tribunal found that was not justiciable because their was no complaint before the Tribunal under Section 2 of the Race Relations Act 1976 at the close of the hearing.

	(2)	A finding at paragraphs 13 and 13.1 that less favourable treatment afforded to Mr Evans in relation to a car mileage allowance claim was not on the grounds of race,  but because he had made complaints against Ms Carney and Ms Akabuko on 20 September 1996, of which Ms Carney became aware on 4 October 1996.  However, that was not unlawful direct discrimination under Section 1(1)(a) of the Act, and the Tribunal made no finding of victimisation under Section 2.

		It is submitted in the appeal:

		(1)	that on those findings in each instance, unlawful racial discrimination 	under Section 1(1)(a) is made out; and

		(2)	that at an earlier directions hearing a Chairman had indicated to the Applicants’ then representative, Ms O’ Reilly, that complaints under Section 2 of the Act would not add anything to the complaints of direct discrimination under Section 1(1)(a) and thus the victimisation complaints were withdrawn or not pursued.

	Mr Hay appearing on behalf of the Appellants today, has persuaded us that both points are arguable and should proceed to a full appeal hearing.  For that purpose we shall direct that the Appellants or their representative, Ms O’ Reilly, swear and file an affidavit or prepare an affirmation within 28 days of today, dealing with the procedural point which is made on behalf of both Appellants in this appeal.  Once that affidavit or affirmation is received, a copy together with a copy of the Notice of Appeal will be sent to the Chairman Mr Homfray-Davies for his comments.  For the purpose of the full appeal hearing, it will be listed for 4 hours, 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.  There is no further direction for the Chairman’s notes of evidence as such.