Appeal No.	 EAT/1292/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS E HART
MR J C SHRIGLEY

LONDON BOROUGH OF CROYDON	APPELLANTS

MR S KUTTAPPAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

RACIAL DISCRIMINATION

Revised

	APPEARANCES

For the Appellants	MS A RUSSELL
(of Counsel)
Stonehams
Stonehams House
17 Scarbrook Road
Croydon
CRO 1SQ	
For the Respondent	The Respondent in Person	

	THE HONOURABLE MR JUSTICE MORISON (PRESIDENT):	This is an appeal  brought by London Borough of Croydon against the unanimous decision of an Industrial Tribunal held at London (South) on 4 August 1998.

	The purpose of the hearing was to consider two applications made by the Respondents, the London Borough of Croydon.  The first pursuant to Rule 6 of the Employment Tribunal Rules of Procedure 1993, namely a preliminary issue as to whether Mr Kuttappan could bring a complaint of race discrimination against them, the second under Rule 13(2D) namely whether if his claim was competent, it should nonetheless be struck out on the grounds that it was frivolous and vexatious. 

	It was Mr Kuttappan’s complaint that the position of Chief Executive of the London Borough of Croydon should have been advertised and that as a result of it not being advertised, he was deprived of the opportunity of applying for that appointment, which is what he had sought to do in his letter of 16 January 1998 and his earlier letter of 2 January 1998.

	It was the London Borough of Croydon’s case that that claim was frivolous and should not be allowed to proceed.  That case related to the proper construction of section 4 of the Race Relations Act 1976.  That section provides that it is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another in the arrangements he makes for the purposes of determining who should be offered that employment or in the terms on which he offers him that employment or by refusing or deliberately omitting to offer him that employment.

	The argument that was presented to the Employment Tribunal was that the position of Chief Executive had been filled but there was no vacancy at the time when the Applicant may have applied for the position and accordingly, the words of section 4 precluded him from making a complaint.  The submission was that section 4 means that there must be a specific position in mind for which the Applicant to the Employment Appeal Tribunal must have applied.  As the position of Chief Executive was filled, even if he had been an Applicant his claim fell outside section 4.

	At the Tribunal as we understand it, they received some evidence from the Applicant but they received no evidence on behalf of the Respondent borough.  The Respondents were represented by Counsel and there were agreed documents which the Tribunal were asked to take into account.  The position of the Respondents can be summarised in this way:  The Chief Executive in question had been appointed in 1993 on a fixed term contract for 5 years, due to expire on 31 March 1998 but that at some stage during July of 1997 that contract was renewed and therefore at the date when he applied in January 1998 for the position, there was no vacancy.

	The Employment Tribunal said in paragraph 4, the vacancy was not advertised, the appointment was for 5 years on undisclosed terms which remain undisclosed in these proceedings to this day.  The appointment was for 5 years and would expire in March 1998.  From that time onwards, the Applicant’s contention is that he had been constantly writing and contacting the Council leaders to find out when the vacancy was going to be advertised.  If that is right, it means that the Applicant is clearly a person who is in the contemplation of the Respondent in relation to this post.

	Counsel on behalf of  the London Borough of Croydon says that that paragraph is not as clearly expressed as one would have wished. It is not clear from what time onwards that he had been constantly writing and contacting the Council leaders and secondly, the Act requires that the Applicant in the Employment Appeal Tribunal should be more than a person in the contemplation of the Respondent in relation to this post.  That he should be an Applicant seeking an appointment to that position.     

	In paragraph 9 of their decision, the Tribunal said this: 

“The Applicant wrote again on 16 January 1998 asking why the position was not vacant and whether it was now an appointment for life.  He made it clear in that letter, beyond a peradventure,  if it were not already clear to the Respondent, that he would be a candidate for the position when it was vacant.”  

	Again, some criticism could be made of that paragraph.  As Counsel pointed out, the words “if it were not already clear to the Respondent”, implied that it might not have been already clear to the Respondent or alternatively, it could be a finding presumably that it was already clear to the Respondent.   The position was therefore left obscure.

	In paragraph 11 of their decision, the Tribunal said this: 

“At the hearing, Mr Maud (of Counsel) indicated that Mr Wexler’s [that is the Chief Executive’s) contract  had been renewed in or about July 1997 and was no longer a fixed term contract.  He contended that the lack of a vacancy in March 1998 meant that Mr Kuttappan’s Originating Application disclosed no course of action under Section 4.”  

In paragraph 12 the Tribunal noted that they disagreed with that submission.  They went on: 

“The curious arrangements in connection with the renewal of  Mr Wexler’s contract and indeed his original appointment, are clearly arrangements for the purpose of determining who should be offered the employment”.  

	Although the contract was apparently renewed for life in July 1997, the Applicant was not aware of this until January 1998 and for the avoidance of doubt, the Tribunal found that it would be just and equitable to entertain this claim which was brought within three months of that notification.  It is not reasonable to expect the Applicant to bring the claim until he is actually aware of the act of which he complains.  The Tribunal went on in paragraph 14 to say that they were not satisfied that the Applicant was bringing this claim out of spite nor that he knew it had no substance and was bound to fail.  

“The Applicant has made it clear that he is interested in the post when it becomes vacant and as a result of the Council’s action, it will not now be vacant until Mr Wexler retires in 14 years time.  The Council has made no attempt whatever to comply with its own Equal Opportunities Policy.”

	The Tribunal concluded that the Applicant is entitled to a hearing of his case and in paragraph 15, they indicated that they were not prepared to strike out his claim until the evidence had been seen and heard in relation to statements in the IT1 which were expressed in strong language alleging, effectively, dishonesty on the part of the Council.  Accordingly, they gave their decision and indicated certain directions which should be made for the hearing to take place in January of 1999.  Those matters have all been suspended pending the hearing of this appeal.

	The primary submission as I have indicated on behalf of Croydon on this appeal, was that the Tribunal misdirected itself in law as to the ambit of section 4 of the Act.  During the course of his submission, Mr Kuttappan gave to us a copy of the Replies which had been served on him in response to his Race Relations Act Questionnaire.  Paragraph 9 of the Response reads as follows:

“With reference to the terms of contract, the Respondent can state that the Committee decided to extend the terms with the decision being taken on 1 April 1998 as an in principle decision to negotiate an extension of Mr Wexler’s contract was taken by the policy economic development and Employment Committee on 16 April 1997.  The terms and conditions of that contract were agreed by the same Committee on 1 April 1998.“ 

It will therefore be observed that that answer in the Race Relations Act Questionnaire does not fit happily with what the Industrial Tribunal appear to have been told at the hearing as recorded in paragraph 11 and 12 of their decision.”

	It seems to us that we should not substitute our own view of the facts for that of the Industrial Tribunal and that because it appears that there has been a certain amount of difficulty in finding out what the facts were, it would be appropriate that the this case should go back to the same Chairman, if possible, for a reconsideration in the light of guidance which we are now going to give.

	It seems to us in principle that section 4 of the Race Relations Act is looking at applications for a specific post, and discrimination in relation to such Applications.  By referring to  specific applications, the Tribunal will be well aware that section 4(1) is not to be evaded by a range of tactics of a discriminating perspective employer.  Thus a refusal to consider an application at all, or the exclusion of Applicants from a particular area, or telling potential applicants not to apply for the job, or telling an applicant that the job is already filled when it is not or a refusal to interview a person or to provide a biased interviewing panel, may all be circumstances in which the person or complainant can be said to have made an application for a job, even if no such full application has been made.

	It seems to us that there needs to be a specific vacancy, either immediately open or one which is available in the reasonably near future.  It would be sufficient for example to enable section 4 to apply, for an applicant to make an application for a job which is due to become available in say the forthcoming 12 months and if there was discrimination in the way that that application was dealt with, it seem to us that section 4 would apply.  The question for the Industrial Tribunal therefore maybe whether having regard to the evidence given by the Applicant, it can be said that he was an Applicant within the extended meaning that I have indicated as to the ambit of section 4 and if so, whether there was a vacancy within the meaning that I have indicated at the time when the application was made.

	If the answer to the Race Relations Questionnaire was correct, it would appear that the post of Chief Executive had  not been formally filled until 1 April 1998 and if that is so, and if the letters from the Applicant together with any other evidence that he gives about the matter suggests that he has made an application for that position in January 1998, then it seems to us that section 4 has been complied with in principle and the real question for the Industrial Tribunal will be whether this is a case where discrimination has been made out.

	It is because of the obscurity of the facts both in relation to the vacancy and potentially in relation to the application that we consider that  the matter will have to go back for a fresh hearing but it does seem to us that in the light of a further consideration of the case, it is not desirable on the facts of this case to seek to isolate the issue to which I have just referred from the other issues which will arise for consideration.  In order to determine whether there has been an application for a vacancy, the Tribunal is going to have to receive detailed evidence from the Applicant and from the Respondents as to what precisely happened in relation to the renewal of the Chief Executive’s contract.  It seems to us that in the course of that examination, they can legitimately enquire as to why certain procedures were adopted by the Council, so that the Tribunal could inform themselves as to whether this is a case where an inference of racial discrimination should be made.

	It seems to us that it would be a waste of  time in the judicial process if the Tribunal were to attempt, again to deal with these preliminary issues because we have no doubt that whichever way they were resolved would simply lead to an appeal here with the potentiality for yet a further hearing before the Industrial Tribunal with much of the evidence being repetitive, leading again to a further appeal here.

	Accordingly, we respectfully invite the Industrial Tribunal to get on and hear the case in full in relation to all the issues which arise under section 4 namely, was there a vacancy, as in the way I have defined it, was there an application in the way I have defined it and was there discrimination.  Those questions are for the Industrial Tribunal when they have heard all the evidence and they should be heard together.

	In relation to the submission that was made that the Industrial Tribunal should strike out the claim either on the grounds that it was scandalous, or that it was frivolous or vexatious; we have to say that we agree with what the Industrial Tribunal has concluded on that issue.  We do not accept, as Counsel submitted, that there has been some kind of misdirection or that the Tribunal has misread the decision to which they refer in 1974 ICR 72 ET Marlow v Robinson.
It seems to us that the Industrial Tribunal here had obviously weighed all the factors which they should have taken into account in deciding that particular issue.  But that said, it is clear that this type of case could lead to matters  being raised at the Industrial Tribunal which are not pertinent to the decision which they will have to arrive at on the legal issues.

	The Applicant will be entitled to cross-examine the Council’s witnesses to find out from them why it was that they did not follow, if that be the case, their own Equal Opportunities Policy and to cross-question all such witnesses about the motivation behind the decision to reappoint the individual in the way that they did.  That is a legitimate line of enquiry which he is perfectly entitled to pursue but this is not an occasion for the Applicant to make any kind of political statements about the inefficiency of the Council in general or of the Chief Executive in particular.  It is his case not that he would have been appointed Chief Executive had the job been advertised, but rather that he has been deprived of the opportunity to participate in the appointment process by reason of the Council deliberately deciding, as his case is, to reappoint the existing candidate without advertisement in order to preclude members of the ethnic minority in general, and himself in particular, from seeking an appointment to that position.

	It is within that context and that context only that the enquiry will be confined and it has been made perfectly clear to Mr Kuttappan, who understands exactly what has been said in this connection, that he should expect the Tribunal to be astute to ensure that the proceedings are confined to those matters which properly can concern an Employment Tribunal in this sort of appeal.  It follows therefore, as it seems to me, that there needs to be a further directions hearing, not for the purpose of deciding which issues should be heard and determined, but for the purpose of deciding how best these proceedings can be brought to a conclusion through a full hearing.  They have already sensibly made a number of directions, all of which seem to us to be sensible.  I have in mind paragraphs 18(3) in relation to witness statements, 4 in relation to a chronology, 5 in an exchange of documentation and 6 an amended Notice of Appearance.  And of course their own judgment as to the time estimate will need to be looked at in the light of this judgment. In relation to number 7, we indicate that there has been apparently compliance with it.  

	On that basis we allow the appeal to the extent of remitting the matter back to preferably the same Industrial Tribunal Chairperson to resume the hearing of this case when she will have to consider the issues to which I have referred and hear all the evidence from both sides.  There is obviously going to be a problem, we anticipate, in relation to documentation since the Council do not appear to be prepared to disclose the terms of the contract of employment with the Chief Executive.  No doubt they will reflect on whether that is a position which they would wish to maintain, having regard to the fact that they have already indicated that the remuneration package under that contract is in accordance with the guidelines which are publicly made available. But from Mr Kuttappan’s point of view, he should be reminded of his obligation not to misuse the material which has been disclosed in the course of legal proceedings.  If he is in any doubt about what he can or cannot do, then he should take advice on that matter.  I am not saying this either to imply that the Council will not disclose the contractual document nor to imply that Mr Kuttappan would misuse the documents when disclosed but what I am indicating is that those sort of matters should probably be discussed at the Industrial Tribunal directions hearing.

	Finally, it is not the President’s preference for  people in formal court documents to use language which is abusive of the other party.  Mr Kuttappan quite understands that and would be prepared to use different language from what he has used in his IT1.  In certain respects, that is something also which can be debated before the Industrial Tribunal and no doubt some sensible accommodation arrived at so that these proceedings can be concluded in an orderly and proper manner without undue anxiety on either party. 

	I want to make it plain in the judgment that it is not Mr Kuttapan’s case that he would have been appointed if he had been given the opportunity to apply for the post.  What he is complaining about is that his application was not considered when it should have been and he is being deprived of the opportunity therefore of having his application considered.