Appeal No.	 EAT/31/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2000

Before
HIS HONOUR JUDGE H WILSON
MS N AMIN
DR D GRIEVES CBE

PENDRAGON PLC	APPELLANTS

MR SWARN SINGH NOTA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

	APPEARANCES

For the Appellants	MR GUY PRITCHARD
(of Counsel)
Retail Motor Industry Federation
Legal Department
201 Great Portland Street
London
W1N 6AB	

	JUDGE WILSON:	This is the preliminary hearing of the proposed appeal by the respondent company against the decision of the Employment Tribunal sitting at London (North), on several days during 1999, concerning the various claims brought against it by the applicant.

1.	The applicant is 41 years of age and had worked for the respondent company for under 12 months. He complained of unfair dismissal, breach of contract, unlawful deductions from pay, racial discrimination and victimisation.

2.	For reasons which will emerge in the course of this judgment, the really live issue was the complaint of racial discrimination. 

3.	Mr Pritchard who appeared for the respondent company below has appeared today to argue for a full hearing and sets out his grounds in paragraph 2 of his skeleton argument. Those grounds are that:

“a)	 it was legally wrong to adjourn rather than dismiss the unfair dismissal complaint to await the outcome of Seymour-Smith
b)	the “Wages Act” decision is legally wrong
c)	The finding of Race Discrimination was reached by a process which was legally flawed by procedural irregularity and/or bias (in the sense of pre-judgment), as evidenced by the costs warning and order. Further there is an element of perversity in assessing the relative culpability of Messrs Norris and Nota.
d)	The award for injury to feelings included aggravated damages and excessive, and punitive, and wrong in its own right
e)	The award of costs was, in its own right, wrong in law and a double penalty”

4.	We deal in this judgment first with those parts of the grounds which we reject. We go immediately to the complaints concerning the finding of racial discrimination. That is dealt with in paragraph 22 of our bundle, and I quote from the tribunal’s findings:

“The Tribunal rejects the evidence of the Respondent’s witnesses regarding the Applicant’s shoddy workmanship. The evidence of the alleged shortcomings are considerably exaggerated or untrue. Those reasons were not genuinely held by the Respondent.”

	There then follow the reasons why the tribunal has come to that conclusion about that part of the matter and then at the foot of the page the tribunal deals with the incident on 24th September 1998. That was the incident which involved Mr Norris and the applicant. The two men were differently dealt with. The tribunal says, about that matter, as follows:

“No reasons are given in the dismissal letter or in Mr Buswell’s misleading letter which gives the wrong impression that a disciplinary hearing had been held and that the Applicant had been given a reason for dismissal at that hearing. Mr Butler treated the Applicant less favourably than he treated Mr Norris, the appropriate white comparator. They had both been involved in the same incident. They were work colleagues. The Applicant was not in a supervisory position over Mr Norris. They had both worked for less than a year for the Respondent; in Mr Norris’s case for a period of only a few weeks; Mr Norris was a mature worker, nearing retirement. He freely agreed to assist the Applicant. There is no evidence of coercion. Leaving aside the disparity in penalty (the Applicant was dismissed whereas Mr Norris was given only a written warning), the Respondent’s contractual disciplinary procedures were faithfully and literally applied in Mr Norris’s case whereas they were not in the Applicant’s case. Mr Norris was afforded an opportunity to explain. The Applicant was not given any such opportunity. The Respondent has not given any satisfactory explanation for the disparity in treatment. It has not been explained as to why it was so urgent that proper disciplinary procedures could not have been followed in the Applicant’s case. The contract contained a provision for suspending an employee without pay. That could have been but was not put into operation. The Tribunal rejects bad workmanship as an explanation. There was a difference in race, the Applicant was Asian, Mr Norris was white UK. In the absence of any satisfactory explanation the Tribunal draws the inference that the Respondent discriminated against the Applicant on racial grounds contrary to sections 1(1)(a) and 4(2)(c) of the 1976 Act.”

5.	We have listened with care to what Mr Pritchard submits are shortcomings in that finding and we find ourselves unable to accept his submissions. There is no perversity in the way in which that decision was reached or expressed. Having said that, there may of course be an effect in light of what may happen on what may happen on a full hearing to those matters which we think should proceed to a full argument.

6.	So far as Mr Pritchard’s submissions about damages are concerned, it seems to us that that is self-destructive in the sense that if eventually the appeal succeeds the award of damages will go any way. If, on the other hand, the appeal in the end fails, Mr Pritchard in his submissions to us, as we understood it, was admitting that a high award was appropriate on the basis that it was made.

7.	Turning to what we think should go forward for full argument, we think that there are arguable points of law arising as follows:

(1)	whether the tribunal erred in law in adjourning the unfair dismissal case instead of dismissing and if so, why?

(2)	so far as the “Wages Act” claim is concerned, whether the tribunal erred in law in failing to take account of the statistical evidence for the period in question?

(3)	whether the tribunal erred in law in the timing of and context for their costs warning early in the proceedings and if so, whether that error invalidated the order for costs eventually made and/or tainted the rest of the proceedings?

8.	We reject the grounds of appeal as otherwise set out. In certifying full argument for third point the tribunal accedes to Mr Pritchard’s request for an additional ground of appeal on the basis of the decision in Tsontos v Hilton Hotel Group (EAT/348/97, as per Morison P) and incorporate that judgment in the third ground of appeal granted.