Appeal No.	 EAT/864/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR K M HACK JP
MR A D TUFFIN CBE

WEST LONDON HEALTHCARE NHS TRUST	APPELLANTS

MR M A JOSEPH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR J HOSKINS
(Solicitor)
Messrs Bevan Ashford
Solicitors
35 Colston Avenue
Bristol
BS1 4TT	

	JUDGE PETER CLARK:	In this case the applicant, Mr Joseph a black West Indian, complained of unlawful racial discrimination and victimisation against his employer, the respondent Trust.

	The nature of the race discrimination complaint was that he was suspended from duty on full pay pending a disciplinary investigation. The victimisation complaint was dismissed by an Employment Tribunal sitting at London (North) on 3rd February 1998. This is an appeal by the Trust against the finding of direct racial discrimination.

	The tribunal in extended reasons dated 30th April 1998, found that suspension was in breach of the respondent’s own disciplinary procedures and that that suspension was less favourable treatment than other white employees holding the same position as the applicant, namely clinical team leader, would have received.

	The material events shortly were these. The respondent received complaints from two nurses that they had found the applicant asleep on the night shift of 3rd and 7th July 1996 when he was on Level 1 observation; that is constant observation of high risk patients. As a result the applicant, who was then on sick leave, received a letter dated 22nd July 1996 suspending him with immediate effect whilst a formal investigation under the disciplinary procedure was carried out. Following that investigation no disciplinary action was taken, the suspension was lifted and the applicant returned to work.

	In this appeal the Trust put forward eight separate grounds of appeal under paragraph 6 of the Notice of Appeal. Having considered the written and oral submissions of Mr Hoskins on behalf the Trust, we have concluded that the only grounds which raise an arguable point of law are to be found in paragraphs 6.4 and 6.8 of the Notice of Appeal. 

	The real point in this appeal relates to the tribunal’s construction of the Trust’s disciplinary procedure. At paragraph 15 of their reasons they set out extracts from that procedure and at paragraph 16 find that the Trust was clearly in breach of its own disciplinary procedure. 

	The point is put in a number of ways. First as a pure matter of construction, it is submitted on behalf of the Trust that contrary to the tribunals construction, it is apparent under paragraph 4(vi) of the procedure that suspension on full pay is permitted in order to allow an investigation to be carried out up to the point where an investigatory hearing is convened. The Trust say that that is what happened in this case. 

	Secondly, and arising from that misconstruction of the procedure, it is said that the point as to the construction of the procedure was never taken during the course of evidence and argument before the tribunal retired to consider their decision. Accordingly, there was a breach of natural justice, in that the tribunal did not give the Trust an opportunity to make submissions on the proper construction of the disciplinary procedure. That point is not fully identified in either paragraphs 6.4 or 6.8 of the Notice of Appeal and we shall grant the Trust seven days in which to file a proposed amended Notice of Appeal to include that point.

	The final point which again does not emerge clearly from the Notice of Appeal as presently constituted, is that the detriment which the applicant was found to have suffered in this case consisted of his being suspended and consequentially the rumours about him which followed on from that suspension. It seems to us that that point is highly material to the overall conclusion that the statutory tort of unlawful discrimination was made out. There must be a finding of less favourable treatment on the grounds of race coupled with the detriment in order to complete the tort. In this case the detriment found by the tribunal was the suspension and breach of procedure. If it was not in breach of procedure then arguably at this stage the tribunal fell into error to an extent that vitiates their overall conclusion. Again Mr Hoskins has sought leave to amend the Notice of Appeal to deal with that point.

	The upshot therefore is that the matter will be allowed to proceed on grounds 6.4 and 6.8 of the Notice of Appeal, subject to any further amendment as to which I will consider an application for leave, provided that that application is made within seven days of today. There will be no requirement for Chairman’s Notes of Evidence. However, the Chairman should be asked to comment on the amended Notice of Appeal once I have considered the question of leave, because there is an allegation of a breach of natural justice in that it is said that the Trust was not given the opportunity to deal properly with the construction of the disciplinary procedure.

	This case will be listed for half a day. Category C. There are no further directions at this stage.