Appeal No. UKEAT/0456/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 November 2003 Judgment handed down 
18 December 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
SIR ALISTAIR GRAHAM
DR SUSAN CORBY

MR R DILLON	APPELLANT

FORD MOTOR COMPANY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	John Hendy QC instructed by Messrs Slater Ellison, 22-24 Broad Street, Bury, BL9 0DA	
For the Respondent	Ms Jane McNeill QC instructed by Messrs Wragge & Co, 55 Colmore Row, Birmingham B3 2AS.	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):
1.	This is an appeal against the unanimous decision of the Employment Tribunal at Stratford dismissing the claim of the Applicant Mr Dillon against his employer the Respondent Ford Motor Company Ltd of indirect race discrimination by reason of a so-called “Progression Agreement”. There was one separate finding of victimisation which succeeded by a majority, and a unanimous dismissal by the Tribunal of two other claims of victimisation and one of indirect race discrimination, and there have been no appeals against those findings.
2.	The five complaints were dealt with at a hearing which took some eight days, but, as can be seen, the appeal relates to only one of the five claims. For that reason and because, as will appear, there have only been two discrete grounds of appeal even in respect of that one claim, the ambit of consideration before us has been very considerably narrowed from what the Tribunal had to deal with. The Applicant was represented before the Tribunal by representatives from the firm of solicitors who continue to act for him, for the first three days by a solicitor from that firm and thereafter by his assistant, a para-legal Mrs Scott: but before us he has been represented by John Hendy QC, instructed by that same firm of solicitors. The Respondent has been represented throughout, both below and before us, by Jane McNeill QC. The Tribunal’s decision is lengthy but clear (although we would wish to re-emphasise our encouragement to Employment Tribunals to number paragraphs and sub-paragraphs consecutively, retaining the governing paragraph number as e.g. 6.1, 6.2 etc, because otherwise it is extremely difficult to chase down in the Decision a particular sub-paragraph (xviii) or subsubparagraph (bb)): but not all of it has been relevant for our consideration, because of the limited nature of the issues before us.
3.	The period (subject to an unsuccessful argument by the Applicant which has formed the basis of the second ground of appeal before us, known as “Appeal B”) during which the indirect discrimination by the Respondent of the Applicant was alleged was the period between February 2001 and February 2002 (para 3.3(i) of the Decision). 
Appeal A
4.	The material facts are that the Applicant, of ethnic minority origin, was employed by the Appellant from 1978, as an assembly worker (in the Paint, Trim and Assembly (“PTA”) plant) in the “north estate” of the Respondent’s factory at Dagenham. From 1986 he was a full time shop steward, i.e. full time engaged on union activities, on the north estate. The Dagenham factory is divided into two parts, known as the north and south estates, and most of the more desirable jobs are located in the south estate, particularly in the “general services” section in the south estate. As found by the Tribunal at paragraph 6(iii)(b) the Respondent “had a fairly high proportion of ethnic minority workers, but they were not evenly spread across the estates. In essence there were at all material times about 27% ethnic minority workers on the south estate (as a percentage of the workforce there as a whole) and 36% ethnic minority workers on the north estate (as a percentage of the workforce there). The disparity hovered at around the 8-9% throughout the 1980s, 1990s, and into 2002”. 
5.	There was in force for many years, by agreement with the relevant unions, a system known as a “Progression Agreement” for advertising internal vacancies. Its effect was that any vacancy was advertised in the plant where it occurred. If not filled it was then advertised in the estate in which the plant was situated. Only if still not filled was the vacancy then advertised in the other estate. This was varied as from 1999 so as to provide that jobs would be advertised first generally across the estate where they occurred, and thereafter across the other estate; this ameliorated the position for those on the south estate who were not in the “general services” section, by opening up those jobs more equally, but it did nothing to alleviate the position of workers (including the higher proportion of ethnic minority workers) on the north estate, as the Tribunal found in paragraph 6(v) of its Decision.
6.	The consequence of the Progression Agreement was recorded by the Tribunal in paragraph 6(iv):
“It is common ground that this system operated to disadvantage the access of ethnic minority workers to the more desirable jobs, both because they were under-represented on the south estate as compared with the north estate and because they were particularly under-represented in general services on the south estate, where the better jobs predominated.”
7.	The Tribunal was satisfied (paragraph 6(vi)) that the Respondent at all material times knew “all the facts relevant to establishing and understanding the disparate adverse impact of the progression arrangement on ethnic minority workers in the north estate”. 
8.	In May 2000, the Respondent announced a decision to close the PTA and other substantial parts of the north estate, which directly affected about 15,000 employees. The Tribunal found (paragraph 6(viii)) that the Respondent was determined to avoid compulsory redundancies, and volunteers were sought by the offer of what the Tribunal concluded to be a generous redundancy package, ensuring redeployment for all those wishing to remain in employment: the redeployment period ran (paragraph 6(x)) “essentially from February 2001 to 22 February 2002 when the affected parts of the north estate closed”, during which period the north and south estates continued to operate as separately as before: the Progression Agreement continued to operate generally (paragraph 6(xi)) at least until June 2001. A list of north estate workers who sought redeployment was drawn up in June 2001 and sent to the south estate. In general services on the south estate there were in fact also some reductions in staffing, such that some internal redeployment was occurring even without advertisement, but the consequence of this and of the Progression Agreement meant that there were no spaces in general services for any north estate employees; and although there were some off-line assembly jobs in the south estate, such as truck driving, for which the Applicant could have applied but did not, once he learned in mid-October 2001 that there were no central repair garages or jetty vacancies, he selected what was “very much a poor second choice so far as he was concerned”, namely an on-line assembly job (paragraph 6(xix)): he was of course no longer a full time shop steward.
9.	The complaint by the Applicant of indirect discrimination within s1(1)(b) of the Race Relations Act 1976 (“the Act”) arises by reference to the Progression Agreement. 
10.	S1(1)(b) reads as follows:
“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – 
	(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group of that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it;
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the persons to whom it is applied; 
(iii) which is to the detriment of that other because he cannot comply with it.”
11.	There are several ingredients in this ‘statutory tort’ of indirect discrimination (which is common to both racial and sex discrimination), all but one of which the Tribunal found to be satisfied in this case:
(i)	A requirement or condition. At paragraph 9C(i)(a) the Tribunal recorded that “it is agreed that the Respondent applied a requirement or condition through the redeployment period” [being the material period the subject matter of the complaint, as discussed in paragraph 3 above], namely by virtue of the Progression Agreement. 
(ii)	The Tribunal summarised the effect of s1(1)(b)(i) as “disparate adverse impact” and recorded at paragraph 9C(i)(b) that “it is agreed that this requirement or condition was one with which a considerably smaller proportion of ethnic minority than white employees could comply, the difference being about 9% in the period February 2001 to February 2002”.
(iii)	As to subsection (1)(b)(ii) of the Act, which the Tribunal characterised as “justifiability”, the Tribunal concluded that, if the Applicant was otherwise entitled to complain in relation to the Progression Agreement, it did not accept the justifications put forward by the Respondent (paragraph 9C(i)(d)). 
(iv)	The issue in respect of which the Applicant failed, and which is the subject matter of this appeal, is in relation to the ingredient that the requirement or condition must be to his detriment because he cannot comply with it. The Tribunal found (paragraph 9C(i)(c)) that he could not comply with the requirement or condition (for eligibility for jobs in the south estate) during the redeployment period, because he was working on the north estate. However they were not satisfied that he suffered detriment because of his non-compliance with the requirement or condition. 
12.	Ms McNeill QC submitted to the Employment Tribunal, and Mrs Scott on behalf on behalf of the Applicant did not dissent, that there is no detriment to a worker unless he or she is personally disadvantaged by the alleged discrimination; that it is not enough to say that the Progression Agreement disadvantaged non-white workers generally, and that it had to be the Applicant’s case that the Progression Agreement disadvantaged him personally. The Tribunal found that it did not.
The Law
13.	The law as to the meaning of detriment in the discrimination field has largely emerged in cases relating to a different subsection, that is s4(2)(c) of the Act (and its equivalent in sex discrimination), which forms part of the definition of what is unfavourable treatment, or an act of discrimination, namely in an employment concept “dismissing him, or subjecting him to any other detriment”. It is clear that detriment has been defined broadly, as meaning the same as disadvantage: see Ministry of Defence v Jeremiah [1980] ICR 13 per Brandon LJ at 26C, De Souza v Automobile Association [1986] IRLR 103 per May LJ at paragraph 19, Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 per Morison P at paragraph 10 and Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at paragraph 53. Shamoon v Chief Constable of RUC [2003] IRLR 285 HL, delivered on 27 February 2003, on which we requested Counsel’s submissions subsequent to the hearing, confirms this line of authority. It emphasises, for the purposes of the equivalent of s4(2)(c), that a detriment arises when a reasonable employee would or might take the view that he had been disadvantaged in the circumstances in which he had thereafter to work, but such that (per Lord Hope at paragraph 35): “one must take all the circumstances into account. This is a test of materiality” and (per Lord Scott at paragraph 105) that this: “must be applied by considering the issue from the point of view of the victim. If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice … [W]hile an unjustified sense of grievance … cannot constitute ‘detriment’, a justified and reasonable sense of grievance … may well do so.” For the purpose of the definition of the word detriment, though not for any other purpose, we are bound by those decisions, because plainly detriment is to be treated as meaning the same in both subsections.
14.	The issue however in relation to the subsection with which we are concerned is necessarily different, because the question is whether the requirement or condition is to the Applicant’s detriment because he cannot comply with it. In Lord Chancellor v Coker [2001] IRLR 116, the Employment Appeal Tribunal per Lord Johnston considered that “there has to be some physical or economic consequence as a result of discrimination to constitute a detriment” (paragraph 44). This was disapproved by the Court of Appeal in Jiad v Byford [2003] IRLR 232, and formed no part of Ms McNeill QC’s case before the Employment Tribunal, nor before us. However the Court of Appeal in Jiad did not disapprove of the balance of Lord Johnston’s consideration of this subsection:
(i)	Lord Johnston noted, what is plainly clear from the terms of the subsection, that it is not enough, as was being contended for by Counsel for the Applicant in that case, that (paragraph 41) “the detriment in question arose simply by reason of the factual failure to be able to comply with it”. At paragraph 44 Lord Johnston said “We are quite unable to accept the proposition of construction advanced by [Counsel for the Applicant] in respect of the subsection. To do so would render it otiose by reason of the fact that if discrimination is established by reason of the failure to comply with the requirement, there would be no need to put in the subsection mentioning detriment”. It is quite plain that there is an additional element that requires to be proved, namely that detriment/disadvantage was suffered by the applicant because of his inability to comply with the condition, i.e. the existence of the condition, which is in this case admitted to have impacted adversely on all those ethnic minority workers who were at the material time in the north estate, is not sufficient of itself.
(ii)	The disadvantage/detriment must be “material and substantial”. Lord Johnston explained this at paragraph 44 of Coker:
“We construe the phrase ‘because of’ in the subsection as meaning ‘as a result of’ and we are reinforced in this view by the fact that there are authorities that would suggest that, even if there is a physical detriment, if it is sufficiently trivial not to be material it does not apply.”
The fact that it must be shown that the “detriment must be material and substantial … a trivial disadvantage would not suffice” was approved in Jiad per Peter Gibson LJ at paragraph 41. 
15.	Against the background of this clear legal position, it is essential to pay careful regard to the precise terms of the Employment Tribunal’s Decision, and particularly to respect the context in which it was made in this case, for two reasons:
(i)	The Decision is very fact-specific, as will become clear. This is of course important, because appeals to the Employment Appeal Tribunal are only allowed on a point of law, and the findings of fact which the Tribunal made (absent the extremely narrow concept of perversity, which is not suggested to be available here) must be accepted. 
(ii)	This Tribunal is not entitled to interfere in relation to arguments of law, a fortiori arguments of law which require evidence to support them (or a remission to the Employment Tribunal to explore such evidence) which were not run below. The Decision in Kumchyk v Derby County Council [1978] ICR 1116 has been repeatedly approved, and repeatedly relied upon by this Appeal Tribunal. It is important (particularly in a case such as this where the Tribunal hearing stretched over so many days) that all relevant matters should be investigated first time round, and afterthoughts should not be permitted (save of course in a rare case where material fresh evidence becomes available). Arnold J said as follows, in a passage which has become wholly familiar, at 1123B – 1124A:
“Our conclusion upon the matter is this, that there is nothing in the language of the statute to exclude the consideration of a new point of law but that it would in almost every conceivable case, as the National Industrial Relations Court said in GKN (Cwmbran) Ltd v Lloyd [1972] ICR 214, be unjust to do so. The case which one can conceive as a case in which it would not be unjust to do so would be a case in which there has been some deception on the part of the respondent to the appeal which entitles the appellant to say, “This really is a case in which we were headed off from running the point which we are now seeking to run before the appellate court by conduct which cannot possibly be condoned in justice by the appellate court.” There may conceivably be other matters of that sort which would negative the unjustness which the National Industrial Relations Court mentioned, but it would have to be, we think, some matter of that sort. It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances; and we cannot see that if this matter remained upon the basis which was dealt with by the National Industrial Relations Court in GKN (Cwmbran) Ltd v Lloyd [1972] ICR 214, namely, a basis in which all that was required was a consideration on any basis of established facts of a new point of law, there would be any reason to depart from the line of decision in that case that it would be unjust to allow the matter to be ventilated. But we think that the matter does not rest there because, as we have indicated, this is plainly a case in which new factual investigations would be necessary, so that even on the narrower rule stated in Central Scotland Water Development Board v Johnstone 6 ITR 86, and in Hereford and Worcester County Council v Tolley [1976] ICR 450 this is a case in which the facts have simply not been investigated and it would be, even if that narrow rule were the rule that ought to be applied, quite plainly a case in which the new point would not be allowed to be raised, and for those reasons, we dismiss the appeal.”
16.	The question then arises as to whether the Applicant established before the Employment Tribunal that he had suffered detriment because he could not comply with the requirement or condition, and whether the Employment Tribunal was in error on the evidence before it in concluding that he had not.
17.	The case that was put forward by the Applicant was referred to in his solicitor’s letter dated 19 February 2003 as follows:
“We will be asking the Tribunal whether, not in theory, but in [practice] our client had a realistic chance of being able prior to closure of the North Estate to secure work in the South Estate, but more particularly in KD Plant and General Services.”
and a Schedule of Loss was produced and relied upon accordingly.
18.	The central findings of the Employment Tribunal are as follows:
(i)	Paragraph 5: “The Tribunal inadvertently came across and read a list of jobs that had been advertised in the south estate during the period November 2001 to November 2002 when trying to trace an earlier document to which reference had been made. We told the parties about this, but heard no further evidence relevant to it”. 
(ii)	Paragraph 6(xx): “As a matter of fact the Applicant has not identified any job which was vacant and/or advertised only on the south estate and which he would have wanted or obtained, absent the progression arrangement during the redeployment period (or indeed any other period). There was some relevant information in the bundle, namely the content of the document which the Tribunal read inadvertently, which the Applicant and his representatives did not address, either by the Applicant’s evidence or by cross-examination of the Respondent’s witnesses. In consequence we make no findings of fact about desirable jobs which he would have wanted and could have done”. 
(iii)	Paragraph 7.3(vi): “In order to do its best, the Respondent had made a guess at what might be relevant information and had provided that which was in the bundle concerning jobs advertised in general services on the south estate in the three or four months, November 2001 to February 2002. This period was consistent with evidence from the Respondent’s witnesses and that of the Applicant, to the effect that union representatives tended to stay in post as long as possible during a redeployment process. The Applicant had confirmed that he would have wanted to do that, unless a gold-plated job had come up. So the last few months of the redeployment year was a proper period to be regarded in order to ascertain whether the Applicant had, in fact, suffered any detriment from the application of the progression arrangement. This information had been ignored by the Applicant and his representatives during the course of the hearing. There had been no suggestion at any stage that the Applicant would have wanted or been interested in any of the jobs there identified. The Applicant had given no evidence about them and none of the Respondent’s witnesses (or indeed the Applicant’s witnesses) had been questioned about them. In circumstances where the Applicant had effectively chosen before and during the hearing not to pursue a particular course, it was not proper for the Tribunal to adopt a line that would prejudice the completion of the hearing in order to encourage the Applicant to take a course that he had apparently deliberately not pursued.”
19.	The Tribunal further set out at paragraph 9C(i)(c) as follows:
“We have contemplated whether it might be a detriment to work in circumstances where redeployment is imminent knowing that one cannot apply for desirable jobs on the south estate generally, because of the progression arrangement, even if no  jobs (or no jobs which one wants) become vacant. We have determined that it would not be proper for us to form conclusions on this issue because:
•	it was not the detriment contended for by the Applicant (see for example his schedule of loss);
•	in consequence or anyway no witnesses, not even the Applicant, were asked about it or gave evidence about it; 
•	no submissions were made on the issue;
•	we had not canvassed it with the representatives of the parties.
We are satisfied that it is not for us to invent and determine a detriment which the Applicant has neither suggested nor pursued. 
20.	The document in question (at page 157 of our supplementary bundle) [the “Vacancies List”] lists eight vacancies in general services between November 2001 and 22 February 2002 – including, for example, one for a fork lift truck driver in which on any basis the Applicant would not have been interested. It is unclear (as Mr Hendy QC accepts) whether any of them would have fallen within the category of “gold-plated”, such as would have interested the Applicant. Mr Hendy QC accepted that none of this was led in chief by the Applicant or cross-examined on, nor put to the Respondent’s witnesses. In reply, he was driven to concede that if such investigation were to be carried out, it could only be done on remission to the Employment Tribunal.
21.	We are satisfied as follows:
(i)	On the case put before the Tribunal, the Applicant needed to show, and did not show, that he had suffered some material and substantial disadvantage personally as a result of the Progression Agreement. The Progression Agreement meant that none of the workers in the north estate (including its higher percentage of ethnic minority workers) would necessarily get to know of a vacancy in the south estate. But he would have to show that he suffered material and substantial detriment as a result. Ms McNeill QC used the example of a female part time worker who does not wish to be a member of her company pension scheme, and cannot thus complain if she is excluded by reason that she is a part-timer. The Applicant did not establish that there was any job during the redeployment period which he would have wished to apply for, and he did not seek to establish that any of the jobs which were available during the period of November 2001 to February 2002 were gold-plated, i.e. were such as to interest him in applying for them. Of course the Applicant would not need to show that he would have obtained such a position, the loss of opportunity to apply for them would be sufficient of a detriment if he would have been interested in applying for them. The Applicant gave no such evidence and the Tribunal made no such finding.
(ii)	Mr Hendy QC would need to argue from inference, upon the basis that there must have been jobs, of which, as a result of the Progression Agreement the Applicant, like his fellow workers, would have been ignorant: there will have been some loss of job opportunity, and the question of any such loss is a matter for remedy. However such argument from inference is inapt in the light of the particular factual context here of the finding by the Tribunal as to the Applicant’s position in relation to his need for a gold-plated job referred to in paragraph 18(iii) above. Although the question is loss of opportunity, not the certain loss of a job, the opportunity must be real, not fanciful or insubstantial. Not only was there no evidence that there was any gold-plated job available, but insofar as the jobs that were listed as available in a substantial part of the relevant period are concerned, the Applicant made no such suggestion in relation to any of them.
(iii)	The conclusion that the Applicant suffered no detriment is one which the Tribunal was entitled to come to on the evidence as canvassed before it, and on the basis of the case put before it. It had no need to make explorations which were not canvassed before it, and the passage which it sets out in paragraph 9C(i)(c) (set out at paragraph 18 above) is unexceptionable and entirely in accordance with Kumchyk. 
22.	Mr Hendy QC obviously points to the passage in paragraph 6(iv) of the Decision, which we have set out in paragraph 6 above, but this was common ground; and it was only the starting point, it cannot also be the finishing point, as Lord Johnston, in our judgment, rightly pointed out in Coker. In order to succeed, the Applicant needed to prove that he personally suffered detriment by virtue of the existence of the Progression Arrangement, and in the particular circumstances and on the particular facts of this case, as argued before it, the Employment Tribunal found that he did not. It is certainly not appropriate or possible now, within Kumchyk, to consider remission for a case  to be put or explored by reference to the Vacancies List, which was not put or explored below. We are satisfied that the Tribunal was entitled to come to the conclusion it did.
23.	However Mr Hendy QC, relying on Jeremiah and Khan, and subsequently on Shamoon, submits that there was a detriment suffered by the Applicant, irrespective of the non-availability, on the evidence, of any jobs in which he would have been interested, simply by virtue of his (and others’) not being informed of any jobs. The majority would in any event not necessarily have been persuaded that, on the facts of this case, that would be sufficient, even in the light of Shamoon, because of (i) the need (per Lord Hope) for consideration of all the circumstances and the need (per Lord Scott) for the victim to hold an opinion, and hold it reasonably, that there was a detriment to him and (ii) in particular the fact that the detriment is required to be material and substantial (Mr Hendy QC did not contend, nor is it in the majority’s judgment the case that this requirement is displaced by Shamoon) and the precise requirements of s1(1)(b) discussed in paragraph 14(i) above (which are also unaffected by Shamoon). However it is quite clear that this argument is not open to Mr Hendy QC on appeal. The argument was plainly not run below (see paragraph 9C(i)(c) of the Decision set out in paragraph 19 above) and cannot be run before us. This case plainly falls within the principle, and indeed the very considerations discussed, in Kumchyk. 
24.	The minority does not consider that the test of detriment is substantial and material. She notes that Jiad was not referred to by their Lordships in Shamoon, perhaps because the Court of Appeal handed down the Jiad decision on 30 January 2003, i.e. less than a month before the Shamoon decision. Be that as it may, the test of detriment set out by Shamoon is the minority’s preferred test. The word substantial is not used in Shamoon. The treatment only has to be material. In her judgment, the test is the view of a reasonable worker and the test is subjective, whether it is in respect of s4(2)(c) of the Act or s1(1)(b)(iii). Lord Scott in Shamoon cites Khan with approval. Khan suffered a detriment because he was refused a reference, although, unknown to him, the reference would have been unfavourable.
25.	The minority considers that a reasonable worker would take the view that the application of the Progression Agreement, which had the effect, at the very least, of delaying the communication of vacancies and, at most, effectively depriving north estate workers of the knowledge of vacancies, was to the Applicant’s detriment. It was material. It was also to the Applicant’s disadvantage in the redeployment period because he had to leave north estate and he was aware of and complained about the Progression Agreement. The Employment Tribunal found (para 6 (xxii)) that in a  letter of 1 November 2001 the Applicant wrote to the Respondent’s Human Resources Manager “to express my dissatisfaction in the way that you have failed to provide support in meeting the aspirations of myself and others who wish to work in the general services department”. Nevertheless, this argument cannot now be run in this Tribunal, as it was not run below (see Kumchyk).
26.	In the circumstances, for all the reasons set out above, we unanimously dismiss Appeal A.
Appeal B
27.	The Applicant sought on the first day of the hearing before the Employment Tribunal to contend that the complaint of indirect discrimination should not be limited to the one year of the redeployment period (February 2001 to February 2002) but should be extended to a 24-year period. Mr Slater on his behalf submitted that:
(i)	the 24-year claim was pleaded: not, it seems from paragraph 2.2(i) of the Tribunal’s Decision, by virtue of its original incorporation in the Originating Application, but by virtue of an interlocutory order of a Chairman of 11 October 2002.
(ii)	that in the alternative an application to amend so as to plead it should be allowed. 
The Tribunal deals with this application in paragraph 2 of its Decision, setting out the issue at paragraph 2.1, the submissions on behalf of the Applicant at 2.2, those on behalf of the Respondent at 2.3 and the decision of the Tribunal at 2.4. We do not propose to set out the whole of this part of the Tribunal’s Decision at length. The Tribunal had no difficulty in concluding that the first of Mr Slater’s submissions was incorrect. It is plain, as indeed it appears Mr Slater conceded, that the 24-year claim is not included in the Originating Application. The date given in Box 9 in that document is 22 February 2002, and although there is reference to “a Progression Agreement that had been in practice for a number of years”, it is plain that it is to the redeployment period that the complaint is being directed, and there is no sign of a case that a 24-year period of discrimination is being complained of. That is plainly the understanding of the Chairman, Mr Milmo QC, who made the interlocutory order referred to above by letter dated 22 October 2002 directing the Applicant to give further and better particulars pursuant to the Appellant’s request, in that the Chairman describes the allegation, namely that “the Progression Agreement applied in the redeployment of the Applicant was racially discriminatory”. Although in the further and better particulars supplied, those given in relation to this particular claim begin with the words “The situation which persists at Ford Dagenham throughout living memory”, and there is a reference to the fact  that the Applicant worked in the north estate for 23 years, further and better particulars, particularly pursuant to an order of a Chairman who described the claim in the way that he did, cannot be relied upon as expanding an original claim. It is well established (see for example Chapman v Simon [1994] IRLR 124) that the Employment Tribunal is limited to considering racial discrimination which is the subject of complaint in the Originating Application. When the Applicant’s solicitor contended, by letter dated 3 March 2003, that the claim extended over 23 years, objection was immediately raised by the Appellant’s solicitor’s response dated 4 March 2003, and it was that dispute which was resolved on the first day of the hearing. We agree with the conclusion of the Tribunal in this regard and can see no error of law.
28.	So far as concerns the application to amend, the Tribunal directed itself correctly by reference to Selkent Bus Co v Moore [1996] ICR 836. At paragraph 2.4(iii) it records all the relevant matters taken into account by it in the course of its exercise of its discretion: the substantial nature of the amendment, its timing, its lack of clarity and the prejudice that would result. The Tribunal considered the matter very fully. Indeed it was induced to return to the question, at the instance of Mrs Scott on the Applicant’s behalf, on the sixth day of the hearing, when invited to review its original decision. Selkent was reargued, and reference was made to Younas v Chief Constable of Thames Valley Police [2001] EWCA Civ 1936. It is plain that the Employment Tribunal was entitled to distinguish Younas, where particulars that were provided related to issues which had been expressly set out in the Originating Application, so that the Tribunal in that case had been “perverse to say that an amendment was required” (paragraph 3.3 of the Decision). Mr Hendy QC invites us to say that this Tribunal’s decision was perverse, and in particular that the Tribunal erred in concluding that there would be prejudice to the Respondent. We do not see any basis upon which we can or would wish to interfere with the discretion of the Employment Tribunal. The Applicant would have needed if the amendment were permitted to establish that he suffered detriment as a result of the Progression Agreement during the 24-year period, even antedating his appointment as full time shop steward, but in any event the Tribunal’s conclusion that it would be prejudicial to the Respondent to look at anything other in respect of discrimination than the most recent period stands, and stands as only part of an unexceptional and unchallengeable conclusion by the Tribunal by way of the exercise of its discretion. In these circumstances we unanimously dismiss the appeal. 
29.	Accordingly both Appeals A and B are unanimously dismissed.