Appeal No.	 EAT/940/97
		EAT/941/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MRS E HART
MR J A SCOULLER

MRS J KHOR	APPELLANT

CAERPHILLY COUNTY COUNCIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G WALTERS
(of Counsel)
The Solicitor
Rhymney County Borough Council
Ystrad Fawr
Ystrad Mynach
Mid Glamorgan
CF82 7SF
	
For the Respondents	MR M S PANESAR
(of Counsel)
Commission for Racial Equality
Alpha Tower
Suffolk Street
Queensway
Birmingham B1 1TT	

	MR JUSTICE LINDSAY:     We have before us two appeals in relation to a decision of the Industrial Tribunal promulgated on 16 June 1997, there having been hearings on 2 October 1996 and on 15, 16 and 17 January 1997.  It will appear from that summary that there was a considerable interval between the first hearing date and the promulgation of the eventual decision.

	The Industrial Tribunal concerned was that at Cardiff, under the chairmanship of Mr John Thomas.  The parties before the Industrial Tribunal were Mrs Julie Khor as the erstwhile employee and applicant and Caerphilly County Borough Council and two individuals, officers of that Council, Mr Phillip Evans and Mr Stuart Rosser as respondents.

	The IT1 had been launched by Mrs Khor and the ultimate decision of the Tribunal, which was unanimous, was that Mrs Khor was allowed to rely upon some allegations of unlawful discrimination outside the usual three month time limit; that was a matter of discretion and has occasioned, I think, no criticism, but the Tribunal went on:

“2.  The applicant has been the subject of unlawful discrimination by the three respondents.  
3.  The claim for unfair dismissal is dismissed.
4.  The question of remedies has been adjourned to be re-listed ...”

	It was a very complicated form of complaint because it concerned a number of different jobs and a number of different applications for jobs.  The jobs concerned, for which Mrs Julie Khor wished to be considered or for which she in terms applied, were divisible into two categories called the second tier and the third tier.  As to the second tier, which is the more senior, that was the Office of Head of Information Technology.  As to the third tier, there were three separate jobs:  Operations Manager, Business Manager and Development and Support Manager, and all these jobs fell to be considered because, in the reorganisation of Local Government that was taking place at the time, small Councils were being merged into and becoming larger Councils.  

	Caerphilly was one of the new emerging unitary Councils and quite difficult and detailed provisions were drawn up between the earlier smaller bodies and the responsible Unions for the manner in which applications should be made by existing employees for jobs in the new grander unitary bodies.  A distinction was drawn between so-called “claimants” and others who were “applicants”.  We do not need, for immediate purposes, to go into any greater detail than that at the moment.

	The outcome of the Industrial Tribunal was that Mrs Khor had no successful complaint in relation to her complaint in relation to the second tier, Head of Information Technology; no successful complaint in relation to the third tier job, Operations Manager; no successful complaint as to the third tier job, Business Manager, but there was a finding in her favour in relation to the third tier job, Development and Support Manager.

	So the position is, broadly speaking, that we have before us an appeal by Mrs Khor as to the second tier job, and as to two of the three third tier jobs, and we also have before us an appeal by the Council and the two individuals concerned against her success on the third tier job, Development and Support Manager.

	It is an irony, almost, that we have already had a detailed criticism of many parts of the judgment from Mr Walters, instructed on behalf of Mr Evans, Mr Rosser and the Caerphilly Borough Council and we have begun to embark on a similar detailed criticism of the findings by Mr Panesar, instructed on behalf of Mrs Khor.  But, of course, we have read the papers and having heard the criticism already on the part of the individuals of the Borough Council by Mr Walters and having begun to hear the criticisms advanced by Mrs Khor, it occurred to us that it might not be improper here, - indeed, it could be, perhaps, the only proper response to the two sets of appeals, - to set aside both aspects, both those in which Mrs Khor succeeded and those in which she failed and correspondingly those in which the individuals succeeded and the Council succeeded and in which they failed, and to remit the matter afresh to a totally new Industrial Tribunal.

	We have put this possibility to the parties and the position now is that neither side opposes such a course, namely that both appeals be allowed and that the matter be remitted to be heard totally afresh.  

	If this was not an appeal, one at this stage would perhaps simply accede to that non-opposition as a matter of a consent order, but it does behove us, as this is an appeal, not simply to let it through as a matter of consent.  However, examining it briefly, as is now appropriate, we do see that there are serious defects in the judgment below such that the course which neither party opposes is the appropriate one.

	Mr Phillips Evans and Mr Stuart Rosser, individuals against whom there exists a finding of racial discrimination in relation to Mrs Khor’s application as Development and Support Manager are left, in our view, without any sufficient reason indicated in the findings as to precisely why it is they have been found so guilty.  Yet to be found so guilty is a serious position and, notwithstanding anything else that may be said in their defence, a possible blot on their reputations and careers.  They are entitled to a far greater indication by the Industrial Tribunal than is to be found in this one as to precisely why it is that they were so found.

	If the position is that the criticism of Mr Evans and Mr Rosser is so deficient, then it is also difficult to see precisely why Caerphilly should have been found guilty in the way that they were because their guilt could only, in practical terms, have been found to exist by way of the guilt of Mr Evans and Mr Rosser.

	So, without taking any view on the merits of the case, we do say that Mr Evans, Mr Rosser and the Council were entitled to know far more specifically than this decision indicates why precisely it is that they failed.

	Equally, Mrs Khor is badly served by the decision.  In relation to the second tier job, Head of Information Technology, her complaint was not that she did not get the job but that she was not given an interview and it seems there was some dispute in the evidence as to whether she could expect to be interviewed regardless of having made no application or whether she could expect to be interviewed only if she, in terms, applied for the job.  It was held that there was no unlawful discrimination here but there is no clear indication of whether it was held she had or had not applied for the job.  Quite what the evidence was is immaterial.  If it had been intended to be held by the Industrial Tribunal that she had applied, it should have been stated and equally, it should have been clearly stated if it had been intended to be held that she had not.  That seems to us in the nature of a material defect in the reasoning of the Industrial Tribunal.

	Going on from that, her complaint as to the third tier job, Operations Manager, had been that although she was interviewed her application was not properly weighed up, free of discrimination on the part of the Council.  But the decision itself is silent on why it is that her case in relation to Operations Manager was declined.  Only in the later review that took place after the Industrial Tribunal’s decision, is it clearly spelt out that no unlawful discrimination was found other than in relation to the Development and Support Manager job and therefore, inferentially, none was found in relation to the Operations Manager job.  If she was not told in the Extended Reasons why it was that she had lost her argument on that score, that seems to us a defect that she could reasonably complain of - see Meek v City of Birmingham District Council [1987] IRLR 250.

	We by no means heard all of Mr Panesar’s criticisms.  He has only just begun, so to speak, to get into his stride, but it is our view that just as the Respondents, Mr Evans, Mr Rosser and Caerphilly, can complain that this decision is materially inadequate, so also can Mrs Khor.

	In that circumstance, it seems to us that, even if the parties had not determined upon their non-opposition in the manner that we have indicated, we would have been virtually obliged to allow both appeals and to remit the matter for a full hearing afresh.  But, given the considerations that I have mentioned and given our view of the cases, having studied the papers, we see it appropriate at this stage not to continue to examine shortcomings in law in the Tribunal’s decision but to do no more than to say that both appeals are allowed and that the whole complaint is to be remitted afresh to a different Tribunal.