Appeal No.	 EAT/934/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 December 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR P DAWSON OBE
MR I EZEKIEL

MR O BROWN	APPELLANT

CONCEPT AUTOMOTIVE SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE 

Revised

	APPEARANCES

For the Appellant	MR C HAY
(Representative)
Instructed by
Northern Complainant Aid Fund
Checkpoint
45 Westgate
Bradford
W Yorkshire
BD1 2TH	

JUDGE ALTMAN

1.	This is an Appeal from the decision of an Employment Tribunal at Birmingham on 20 March 2000.  It comes before us by way of Preliminary Hearing to determine if there is a point of law capable of being argued in full before the Employment Appeal Tribunal.  The unanimous decision of the Employment Tribunal was that the claim for wrongful dismissal succeeded and that the claim for unlawful discrimination on the ground of race failed.

2.	The Appellant was dismissed purportedly for unauthorised absence.  When putting it in rather general terms the Employment Tribunal was to find that the Appellant had gone through the appropriate procedures in his employment, to the knowledge of appropriate employees of the respondents, so as to take ordinary authorised leave.  The Appellant argued not only that it was wrong for him to be discussed but that the reason that he was dismissed was on the ground of his race.

3.	The Employment Tribunal in their decision at Paragraph 7 set out the basis of the claim of racial discrimination as being because of an absence of an investigation and that:

“A white person would not have been dismissed in similar circumstances.”

4.	In Paragraph 42 the matter is put to the same effect in a similar way repeating the case that the allegation was that:

“had he been white he would have been subject to a different disciplinary procedure.”

5.	In Paragraph 58 the Tribunal begin to deal with what they call The Race Claim and reiterate the issue in a similar way.

6.	In Paragraph 61 they refer to the possibility of a presumption of race discrimination if a difference of treatment could have been demonstrated.

7.	In Paragraph 62 they refer to a proposition that:

“The Applicant cannot say that because he is being treated in a way in which no reasonable employer would treat an employee and, as he is from a minority racial group, an inference arises that that poor treatment is because of his race.”

8.	However, the Employment Tribunal then go on to make the following general statement:

“In the absence of either direct evidence that the treatment was because of his race or a comparator who has been treated differently the Tribunal cannot find that the (Appellant) was discriminated against because of his race.”

9.	It seems to us that points of law arise from that statement.  Are the Employment Tribunal, when they say that they “cannot find” discrimination, purporting to say that they cannot do so as a matter of law or that they do not do so on their assessment of the facts?  If they are saying that they cannot do so as a matter of law it seems to us there is an arguable point of law that that sentence which we have just quoted is a too narrow definition of the issues of law and fact which the Employment Tribunal had to consider, in a case where there is the scope for the Employment Tribunal to consider the basic proposition of the Appellant that his employers would not have done what they did if he was white.  And if that is so, does Paragraph 63 demonstrate in fact that the Employment Tribunal, as a matter of fact, did put its mind to the broader general issues?

10.	The Appellant wishes to argue the application of the principle in the King case, but it is conceded by Mr Courtney Hay that if a Tribunal finds that a respondent’s explanation for a particular act is acceptable then, as Mr Hay said, the matter goes no further.  There must be some inadequacy of explanation, it seems to us, to trigger the question as to whether an inference should be drawn.  

11.	On the other hand, there is a slightly different process which is, it seems to us, for an Employment Tribunal to balance on the one hand the respondents’ explanation, and on the other the possibility that that explanation is wrong and that the true reason is instead race discrimination.  Is that a different process to first of all finding if an explanation is inadequate before going on to consider whether to draw an inference?  And it seems to us that it is in that area that there is an arguable point of law.  Skeleton arguments must be furnished not less than 14 days before the day fixed for the hearing of this Appeal, which will be for half a day in Category C.