Appeal No. EAT/1408/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MISS C HOLROYD

MR RON SINGH	APPELLANT

ROYAL DEVON & EXETER HEALTHCARE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS S HUGHES
(Solicitor)
Principal Litigation Officer
Commission For Racial Equality
Elliott House
10 / 12 Allington Street
London  SW1E 5EH	

JUDGE CLARK

1	In May 1999 the Respondent Trust was granted funding to provide and develop Urology Services at the Royal Devon and Exeter Hospital.  As a result they advertised for a Urology nurse specialist in the Nursing News on about 9 June 1999.

2	The Appellant, Mr Singh, was then a highly experienced registered nurse who had specialised in Urology.  He is of Indian racial origin.

3	The Appellant was 1 of 5 applicants for the post.  At least 3 of the other candidates were white.  All were short-listed save for the Appellant.  In these circumstances he presented a complaint to an Employment Tribunal of unlawful discrimination on the grounds of his race and/or sex.  The latter claim was abandoned when the complaint came on before an Employment Tribunal sitting at Exeter on 5 October 1999.  The claim of race discrimination was dismissed by a decision with extended reasons promulgated on 18 October 1999.

4	The Appellant established less favourable treatment, he was not short-listed and the other candidates for the post were.  There was a difference in race between the Appellant and those short-listed candidates.  Thus, applying the guidance of Neill LJ in King –v- Great Britain China Centre [1991] IRLR 513, approved by the House of Lords in Zafar –v- Glasgow City Council [1998] IRLR 36, the Employment Tribunal looked to the Respondent for an explanation.

5	That explanation was provided by Mrs Bloom, the Clinical Nurse Manager who alone effectively organised the recruitment exercise.  Her explanation was rejected by the Employment Tribunal.  They found that she went outside the Respondent’s laid down recruitment policy.  The Appellant had all the qualifications for the post.  2 of the other candidates did not.  They found that Mrs Bloom did not match qualifications to requirements for the job and they found that, in disregarding the employers procedures, Mrs Bloom had a “ Secret Agenda” the nature of which is not explained or expanded on in the Employment Tribunal’s reasons.  That however, was not the end of the matter, as the House of Lords emphasised in Zafar.  It was still necessary for the Employment Tribunal to go on to determine whether in these circumstances the less favourable treatment meted out to the Appellant was on grounds of his race.  They concluded that it was not, hence the complaint failed.

6	Against that decision this appeal is brought.  Miss Hughes has provided us with a detailed skeleton argument, expanding on the grounds of appeal in the notice lodged in this case dated 17 November 1999.

7	We recognise the difficulty faced by Appellants challenging an Employment Tribunal decision on the ground of perversity.  Nevertheless, we have a sense of unease at the conclusion which the Employment Tribunal drew from the findings of fact which preceded that conclusion.  In particular we think it arguable that the Employment Tribunal, in deciding the case on the basis of their view of Mrs Bloom as a witness and accepting her evidence that the Appellant’s ethnic background played no part in her decision not to short-list him, may have overlooked the well known fact that discrimination may be subconscious as well as conscious.

8	In these circumstances at this preliminary hearing we direct that the appeal as presently constituted proceed to a full inter partes hearing.  For that purpose we direct that the appeal be listed for 1 day, category B.

9	Having considered Mr Hughes application for Chairman’s Notes of Evidence, we shall direct that the Chairman be asked to provide his notes of the evidence given by Mrs Bloom before the Employment Tribunal, both in chief and cross examination and indeed any further questions asked in re-examination or by the Employment Tribunal.

10	Finally there will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.