Appeal No. EAT/238/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24th May 1995

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR A C BLYGHTON

	MR T C THOMAS CBE

MR T W AUSTIN	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D HEWITT
(of Counsel)
Messrs Edward Leach & Co
Solicitors
100a South End
Croydon
Surrey
CR9 1YB

For the Respondents	MR P THORNTON
(of Counsel)
Alan Whitefield 
Solicitor
BT Group Legal Services
BR Centre
81 Newgate Street
London EC1A 7AJ

	MR JUSTICE MORISON:   On 27th September 1993 an Industrial Tribunal held at London (South) dismissed Mr Austin (the appellant's) complaint of unlawful discrimination on the grounds of race brought against his employers, British Telecommunications PLC whom we shall call the employers.

	The essence of the complaint which he made was that he, a Guyanian, worked with a white man in a two man team at Gatwick Airport. In his annual appraisal in 1992 it was said that:

		"his lack of output holds him back."

Whereas his fellow team member was not criticised for the lack of output.

	In paragraph 7 the Tribunal said this:

		"The Applicant's complaint is that the reason for the differences in appraisals is discrimination on the ground of race. The Respondent's case is that the appraisal forms were fair, that there was little difference between his and Mr Holdstock's appraisals and that in any event it was nothing to do with discrimination on the ground of race."

The Tribunal concluded that there was not the slightest evidence of discrimination on the ground of race. None of the people in the group of ten to which the appellant and Mr Holdstock were promoted. The Industrial Tribunal continued:

		"We are satisfied that the appraisals are a fair assessment of the Applicant's strengths and weaknesses. His grades were identical to Mr Holdstock's and the only difference was in the comment which were marginally better in Mr Holdstock's appraisals and made no criticism of output. There is no indication that the difference in the appraisals was due to a difference in the mens race rather than in their ability to do the job. ..."

	At the Industrial Tribunal the burden being upon the employee, the appellant was asked to give evidence first. He had prepared, as we understand it, an opening statement, but effectively was denied the opportunity of making it. Instead, at the request of the Industrial Tribunal, and without it in any way criticising him, Counsel for the employers opened the case on the behalf of the employers, and the appellant then gave his evidence and called as his witness Mr Holdstock. Thereafter the employer's Counsel made a submission of no case to answer, and the Tribunal retired to consider it without, apparently, giving the appellant an opportunity to respond to it. The submission was accepted by the Industrial Tribunal, and the decision, therefore, was arrived at without the appellant having made an opening or closing submission, and without the benefit of any evidence from the employers. As a result of the way the case was handled we are of the view that the decision cannot stand.

	It is our view that, except in the rarest of cases, it is not appropriate for employers to make submissions of `no case to answer' in discrimination cases where an applicant is unrepresented. That is because an Industrial Tribunal can only decide what inferences it should draw when it has heard the whole case. It is common experience that unrepresented persons often reveal the most significant aspect of their case in cross-examination, when they put a point to a witness for the other side, either in the mistaken belief that it is better to reserve such points for that stage of the case, or simply, because what the witness says provokes them into saying more than had been said when giving their own evidence.

	In this case, the Industrial Tribunal could see the appraisals discriminated between the appellant and his colleague in relation to what was said about work output. They heard no explanation as to why there was such a differentiation between his case and Mr Holdstock, his team mate at Gatwick. The fact that in other respects the assessment may have been fair, does not address the complaint made by the appellant which had prompted him to complain to an Industrial Tribunal in the first place. The fact that none of his group was promoted might affect any question of compensation, but does not appear to us on the face of it at any rate, to bear on the central issue. Here there had been an opening statement by Counsel for the employers, which presumably put the employers' case and a closing submission no doubt making the same points. There is, we think, a real risk that justice has not been seen to be done. There is a real risk that the Tribunal would have treated what Counsel said, either in his address or in the form of questioning, such as `Mr X will say' as evidence when it plainly was not. The case for the employers to which the Tribunal referred in paragraph 7 was not a case, in the sense that it had any evidential support. There was no material upon which the Industrial Tribunal could say that the appraisals were fair assessments of the applicant's strengths and weaknesses. All they could say was that the employers had argued that they were.

	Very properly during the course of this appeal when pressed considerably by this Tribunal, Mr Thornton on behalf of British Telecom, has acceded to our request, if not our demand, that he should take instructions from his clients as to whether in the circumstances, as there was a real risk of justice not being seen to be done, it might be appropriate for employers as reputable as British Telecom, to not resist the appeal. Instructions have been taken, and we have been told that British Telecom, although not accepting for one minute that there is any merit in the case against them, were not prepared to resist the appeal having heard what I had to say about the fairness or otherwise of the hearing below.

	Accordingly, we have no hesitation in saying that this is a case which must go back for a new hearing before a different constituted Tribunal, so that the applicant may have a full and fair hearing of his complaint, and adjudicated upon right or wrong, and so that he knows that justice has been seen to be done. 

	We are grateful to Mr Thornton for the time and trouble he has taken in this respect. Accordingly this appeal is allowed, and the matter, as we have indicated, will go back to another Tribunal for a full hearing.

	No order for costs.