Appeal No.	EAT/1284/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

MR D CLARK	APPELLANT

TDG NOVACOLD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N A CAMERON
(of Counsel)
Stamp Jackson & Procter
5 Parliament Street
Hull HU1 2AZ	
For the Respondents	MR P OLDHAM
(of Counsel)
Clarks
Great Western House
Station Road
Reading
Berkshire RG1 1SX	

	MR JUSTICE MORISON (PRESIDENT):     Both Counsel have made submissions to me, in the light of the judgment which has been handed down in this case, and in response to the suggestion made in that judgment that we would be prepared to hear further oral or written submissions on the question of remission, if they so wish.

	The position which is adopted on behalf of the Respondents is that, in the light of the Industrial Tribunal’s decision at paragraph 19, there is effectively no need for a remission in relation to the section 6 question and accordingly, there is no need for a remission at all because the Employment Appeal Tribunal indicated at page 15 A - D of its judgment that, as there was to be a remission on that question, so there should be a remission which dealt with the comparator question.

	But says Mr Oldham, if there is no need for the remission on the first question, there is no need for a remission on the second.  On the other hand, Mr Cameron submits to me that, albeit that his client does not agree with the conclusions in the Employment Appeal Tribunal’s decision, he says that the remission to the Industrial Tribunal was an inevitable consequence of that decision on two questions.  Firstly, so that the Industrial Tribunal can determine what characteristics the hypothetical comparator should have (page 15 A - D of the judgment) and secondly, in order that the Industrial Tribunal can determine whether the Respondents ought to have taken any steps in respect of any of their arrangements in accordance with paragraphs 16 A - C.

	It seems to me that Mr Cameron’s submissions are correct.  There are, as it seems to me in the light of our judgment, questions which remain unresolved, namely, whether there was discrimination as defined at section 5 (2) remains unresolved, as is the question as to whether the characteristics of the comparator make the comparator an appropriate one in accordance with section 5 (1) of the Act.  In those circumstances, I say that remission should follow.

	There is a further question as to whether or not I should give any directions as to what should happen in relation to the remission.

	I direct that the matter, although remitted to the Industrial Tribunal, should be stayed pending the determination of the Court of Appeal.  Both sides wish to raise an appeal against the EAT’s judgment.  As we made plain in our judgment, we very much will welcome the Court of Appeal’s guidance on what we regard as difficult questions and accordingly, I make that order.