Appeal No. EAT/1016/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2000

Before
MR COMMISSIONER HOWELL QC
MR B V FITZGERALD MBE
MR H SINGH

1) MR A CARTER  2) MR S CARTER	APPELLANT

STAKIS PLC & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M S PANESAR
(of Counsel)
Instructed by Mr G Morris 
Solicitor
Aston Legal Centre
29 Trinity Road
Aston 
Birmingham B6 6AJ

MR COMMISSIONER HOWELL QC

1	In this appeal which is before us today for preliminary hearing, Mr Anthony Carter and Mr Samuel Carter seek to be allowed to pursue an appeal against the decision of the Birmingham Employment Tribunal given in Extended Reasons sent to the parties on 12 July 1999 after a hearing, over three days, into allegations by the two Mr Carters of racial discrimination on the part of their employers, Stakis PLC and a number of other people employed by Stakis at Mr Carter’s place of employment which was the Metropole Hotel operated by the Stakis organisation.  

2	The basis of the complaints of racial discrimination was that a number of incidents had been allowed to occur at the hotel where the two Mr Carters each worked as part-time wine waiters in which they had been exposed to racially insulting comments.  Both Mr Carters are black.  The complaints arise out of a number of incidents involving other employees at the hotel, which in common with a large part of the catering industry, employed people from a number of varying racial origins.  

3	The Tribunal elected to take what it acknowledged was an unusual course at the beginning of the substantive hearing of the applications, in seeking to address as a first issue whether the allegations relied on by the two Mr Carters amounted in the circumstances of the particular case to any identified detriment to them in terms of Section 4(2)c of the Race Relations Act 1976.  The basis of the Tribunal starting with that issue was its view that unless some such detriment within Section 4(2)c could be established as a matter of fact to the satisfaction of the Tribunal, there was no point in going on and considering the further issues on the complaint of discrimination under Section 1 of the same Act which would arise only if that were so. 

4	The conclusion of the Tribunal was that having heard evidence from both sides on the nature of the incidents relied on, it was not satisfied that any detriment in the employment context had been established and accordingly, both complainants’ applications were dismissed, without going on to consider any of the wider issues which they had sought to put before the Tribunal in their Originating Applications.  

5	On behalf of the two Applicants, the Appellants before us, Mr Panesar has developed helpfully and elegantly the Grounds of Appeal set out in the original Notice of Appeal submitted on 17 August 1999 at pages 1 - 6 of the appeal file before us.  The nature of the appeal sought to be pursued founds in the first instance on the decision by the Tribunal to address as a “preliminary” issue the question of whether there had or had not been any detriment identifiable in the matters complained of by the Applicants.  

6	Mr Panesar submitted that first of all it was wrong for a Tribunal to attempt to address that issue by way of turning the proceedings into what he referred to as a “preliminary hearing” into that issue alone.  He said that the consequence of the way the Tribunal had dealt with it in this case was that evidence which his clients had sought to put before the Tribunal as relevant in the written statements that had been prepared for the hearing, had in fact been excluded.  This was evidence not of the specific incidents under consideration themselves, but of the general background and of earlier incidents which were not directly before the Tribunal for consideration, which he said would have established a culture of racist and derogatory conduct in this particular hotel.  That would have been a relevant consideration to be taken into account in assessing whether a reasonable employee would have suffered disadvantage as a result of the particular incidents which were the subject matter of the complaint.  The way the Tribunal had approached the matter had intentionally or unintentionally caused that potentially relevant evidence to be left out of account.
7	Further he said that the way the Tribunal had actually approached the individual instances and addressed the question of detriment demonstrated errors in the way they had sought to apply the well known test for identifying detriment in cases where racist insults and derogatory remarks and conduct are relied on.  See De Souza -v- Automobile Association [1986]  ICR 514, in particular at page 522 G where Lord Justice May identified the question that the Tribunal must consider as whether: 

“by reason of the act or acts complained of, a reasonable worker would or might have taken the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work”

Further Mr Panesar said that the Tribunal had erred in failing to address not merely the individual instances of alleged discriminatory conduct by themselves in isolation, but also whether the cumulative effect of such incidents, some apparently relatively unimportant in themselves, would have amounted, arguably, to a detriment satisfying the test in De Souza.  

8	We have determined  that Mr Panesar has established that there are arguable grounds to allow this appeal to go forward on the two principal issues dealt with in argument before us: the first issue is whether the procedure adopted by the Tribunal in addressing the question of detriment as the first issue by itself at the substantive hearing, had the effect, albeit unintentional, of excluding potentially relevant evidence which might have been deployed to show the effect on a reasonable black or ethnic minority employee of the incidents complained of as being more serious than it might have appeared, looking at the particular incident in isolation, if one took into account the cumulative effect of earlier incidents and the general background of behaviour at the hotel.  

9	Second, we consider it is arguable, and to some extent this point is related to the first, that the Tribunal may have failed to address adequately clearly in its extended reasons, the separate question of whether the cumulative effect of the various incidents, which viewed in isolation might not have been all that serious by themselves, together might have amounted to a detriment to a reasonable employee on the test expounded by Lord Justice May in De Souza’s case.  

10	Those are the two issues which we consider it would be right to direct should go forward for a full hearing before the Employment Appeal Tribunal.  We dismiss the appeal in so far as it is based on the contention that the Tribunal misdirected themselves in some way as to the test that they were required to apply, in accordance with the authority of De Souza to which they referred specifically in paragraph 19 of their extended reasons citing the test in accurate and unexceptionable terms.  We are not persuaded by the various instances Mr Panesar drew to our attention in the Tribunal’s extended reasons, that the Tribunal in fact did other than address the question correctly in terms of De Souza in the way it dealt with the evidence of the individual incidents.  

11	Further, so far as Mr Panesar made this a separate ground of the appeal, we are not satisfied that it was an error in its own right for the Tribunal to have determined that the issue of whether there was or was not detriment established on the facts of the particular case, should be dealt with as a separate issue at the start of the substantive hearing.  

12	We further reject Mr Panesar’s submissions that the Tribunal erred in failing to give the parties some form of advance warning if this was the procedure it intended to adopt. We regard that argument as of no substance: this was the substantive hearing of the whole appeal and the parties and their representatives should of course be prepared at the substantive hearing to deal with all the issues arising on the appeal of which this was plainly a highly important one.  We are not satisfied that there is any disadvantage to an Applicant if the Tribunal decides that a particular issue, which it views as of importance, should be dealt with first in advance of hearing the evidence which goes to other issues, which may only arise if that issue is decided in one particular way. The Applicants in this case were represented by a representative from a legal advice organisation and we consider it is for the representative in circumstances such as these, if he had felt at any disadvantage in presenting the parties’ case on the issue addressed first by the Tribunal, to have asked for an adjournment to enable him to prepare submissions on the basis of that issue alone: no adjournment was in fact sought in this case.  We do not therefore think it is right or arguable that the Tribunal can be criticised for having proceeded with the hearing in the way that they did.  This is not a case where a Tribunal has accepted a “submission of no case” at the half way point in a race discrimination case.  This is a case where one substantive issue has been addressed in the round at the outset of the hearing in what appears to us a perfectly proper way since, since only if that issue was determined in favour of the Applicants, did any further issues in the case arise.

13	Listing category C, estimate time of hearing - half a day or to lodge an amended estimate with the Employment Appeal Tribunal office, Skeleton Arguments to be lodged with the Employment Appeal Tribunal office and exchanged between the parties not later than 14 days before the date fixed for the full hearing of the appeal….

14	We direct that the Chairman’s Notes of any argument on the issue of whether detriment should be dealt with by itself as a separate issue at the hearing should be requested and added to the Appeal file for the hearing. 
[No application was made for leave to appeal]