Appeal No.	 EAT/1296/98

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

GOVERNORS OF OUR LADY OF LOURDES SCHOOL & OTHERS	APPELLANTS

(1)	MS N WEBSTER 
(2)	MR S RAHIM	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR F EVANS
(of Counsel)
MS M THOMSON
Legal & Personnel Department
London Borough of Brent
4th Floor, Chesterfield House
9 Park Lane
Wembley, Middlesex HQA9 7RW

	JUDGE PETER CLARK:	This is an appeal by the Respondents before the London (North) Employment Tribunal sitting over 7 days in June and July 1998, against that Tribunal’s decision, promulgated with extended reasons on 24 August 1998, upholding the complaints of unfair dismissal and unlawful racial discrimination brought by the two Applicants, Miss Webster and Miss Rahim.

	The Appellants were employed by the first Respondent as nursery nurses at the school.  Miss Webster was of mixed race and Miss Rahim was of Pakistani ethnic origin.  The history of the matter, outlined in the Tribunal’s reasons, shows that the governors resolved to delete the two nursery nurse posts occupied by the Applicants and to replace them with a teacher and unqualified welfare assistant.

	The Tribunal found that there were numerous incidents of less favourable treatment of the Applicants from which they drew an inference of unlawful discrimination.  We can see no grounds for interfering with that conclusion. 	Further, they found that the Head teacher used all the ingenuity he could muster to remove the Applicants from the school.  

	So far as the complaints of unfair dismissal are concerned, the way in which the Tribunal’s reasons on this aspect are structured indicates that the Tribunal considered three possible potentially fair reasons for dismissal: conduct, redundancy and some other substantial reason.  It dealt with all three but found that the dismissals were unfair under Section 98(4) of the Employment Rights Act 1996.
	
	In this appeal, Mr Evans takes three points on behalf of the Appellants.  The first two raise the question as to whether or not the Tribunal reached a permissible finding that the dismissal was not by reason of redundancy as defined as in Section 139 of the 1996 Act.  That is not how we read the Tribunal’s decision.  Under the heading redundancy, the Tribunal appear to have proceeded on the basis that a redundancy dismissal has been made out but then go on to find that the dismissal for that reason was unfair because the pool for selection for redundancy ought to have included a third employee, Ms O’ Connor, also employed as a nursery nurse.  Coupled with the hostility generated by the Head Master who made the recommendation of dismissal on the grounds of redundancy to the governors that rendered the dismissals unfair.

	It seems to us that that was a permissible finding and that the approach taken in the Notice of Appeal in the first two grounds is accordingly misconceived.  The third ground relies upon the earlier grounds in order to seek to attack the finding of unlawful racial discrimination.  Since we are against the Appellants on the first two grounds, it follows that we are against them on the third ground.

	This is an ex parte preliminary hearing, held to determine whether or not this appeal raises any arguable point of law fit to go to a full appeal hearing.  In our judgment it does not.  This Tribunal’s decision is sustainable.  There is no error of law made out in the appeal and accordingly the appeal must be dismissed.