Appeal No.	 EAT/244/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 May 2000

Before
THE HONOURABLE MR JUSTICE NELSON
MRS J M MATTHIAS
MR S M SPRINGER MBE

MR M ASHRAF	APPELLANT

FRANCIS W BIRKETT & SONS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C HAY
(Representative)

MR JUSTICE NELSON:	This is an ex parte preliminary hearing in which the Appellant seeks the permission of this Tribunal for his appeal to go to a full hearing.  The appeal is against a decision of the Employment Tribunal at Leeds promulgated on 24 May 1999, when it decided that his claim for unlawful discrimination, contrary to the terms of the Race Relations Act 1976 and the Disability Discrimination Act 1995, should fail.

1	The grounds upon which the decision is criticised are narrow.  They simply relate to this point.  The Tribunal said that it was their unanimous decision that they accepted the explanation given by the Respondent as the reason for the Appellant being made redundant and that reason was that, although a good fettler, he performed his work slowly and because of that slowness in the performance of his work he was selected for redundancy.

2	It is however pointed out to us in Mr Courtney Hay’s skeleton and the attachments thereto, that in the RR65 Questionnaire, when asked what the reason was for the Appellant being made redundant, the reason in fact given in answer to that question was “The Respondent’s criteria was the reducing workload together with the fact that you had short service history”.  That again is repeated further in the same document “You were selected for redundancy due to your short service history”.  Furthermore, we are told, that when a request for Further and Better Particulars was made the same answer was given (at page 31 of Mr Hay’s attachment to his skeleton) “We are instructed that the reason for selecting Mr Asraf for redundancy was his short service with Francis W Birkett & Sons Limited which is a fair and reasonable selection process”.  

3	The point that Mr Hay makes is simple.  The RR65 answer and the answer to Further and Better Particulars were not dealt with at all by the Tribunal.  By failing to direct its mind to those answers it is submitted that the Tribunal, made an error by depriving itself of the opportunity of considering whether an adverse inference should be drawn.  It also, it is said, deprived itself of the opportunity of giving full consideration to the fact that there were two conflicting explanations given as reasons for redundancy and that conflict should have formed part of their consideration.

4	We accept that that is an arguable matter and accordingly, we give leave on that ground alone for the matter to proceed to a full hearing.  This appears to us to be a Category C case with a half day estimate.