Appeal No.	EAT/0549/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 November 2001

Before
THE HONOURABLE MR JUSTICE WALL
MR B V FITZGERALD MBE
MR S M SPRINGER MBE

MR A MILLAR	APPELLANT

(1) WEST END COMMUNITY PROJECT LTD (2) MR J WARD	RESPONDENTS
(3) MR M CLUTTEN

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR ANDREW BURNS
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR JUSTICE WALL
1.	This is the preliminary hearing of an appeal by Mr Millar against the decision of the Employment Tribunal held at Leicester, with reasons promulgated on 26th February of this year, in which the Tribunal unanimously held that Mr Millar’s employers and two members of the employer’s organisation, West End Community Project, Mr John Ward and Mr Mike Clutten, did not discriminate against him on the grounds of his race and also found by a majority that the dismissal was not unfair. 

2.	The Respondents provided legal advice and representation at courts and tribunals for the local community and the Appellant was employed by them. The Appellant, as the Tribunal found, originates from Scotland and has a Scottish accent. What happened to bring about the circumstances leading up to his dismissal was an incident on 24th September 1999 when there was, what appears to have been, a fracas between the Appellant and the Project Manager, Mr Dooher. That led to Mr Dooher making a complaint about the incident and in due course to the Appellant being dismissed. There was an investigation and a procedure carried out by the Respondents which, as I have indicated, came to the conclusion that the dismissal was not unfair. 

3.	The complaint made by the Appellant in the IT1 relates to three aspects – unfair dismissal, disability discrimination and race discrimination. Disability discrimination is not pursued. Dealing with the question of race discrimination first, the Tribunal appears to have dealt with the matter on the basis of one incident namely, an incident at the hearing in the disciplinary proceedings where one of the members present, Mr Ward, made a remark to the effect that “the tape recorder doesn’t understand your Scottish accent”. The Tribunal spent a great deal of time discussing the law relating to racial discrimination and, as I say, made a finding only in relation to that one particular incident. 

4.	It is apparent both in the Notice of Appeal and, we infer, from events which occurred at the Tribunal including the statement made by the Appellant, that his case was continuing discrimination with a number of remarks being made, some of which he recalls in correspondence with the chairman in relation to the conduct of the Tribunal itself. It is, on any view, curious that the only incident dealt with by the Tribunal on this aspect of the case was the remark made during the course of the disciplinary proceedings, and in our view it is arguable that the Tribunal, by dealing with the matter in that way, approached the question of racial discrimination inappropriately and were wrong in the conclusion which they reached. 

5.	That aspect also impinges on the question of unfair dismissal where discrimination is being alleged as part of the process which led to the Appellant being dismissed rather than Mr Dooher. We have, therefore, little difficulty in accepting the submission that the complaint in relation to race discrimination is arguable on the Appellant’s behalf and that part goes through without difficulty. 

6.	On the point of unfair dismissal, it is clear that there was quite an extensive investigation and hearings organised by the Respondents. Nonetheless, first of all, there is the argument that the dismissal is itself tainted by racism with which the Tribunal has not dealt. There are also arguments, as advanced today by Mr Burns on behalf of the Appellant, that the Respondents do not appear to have followed their own disciplinary procedure, which itself ought to be fair, and to which the Tribunal makes no specific reference. There are also allegations that the procedure adopted by the Respondents for investigating the matter was unfair, particularly in relation to the question of whether or not the witnesses whom the Appellant wished to cross examine should be available for cross examination and be cross examined. 

7.	All these factors together leave us with a sense that there is sufficient here, on both points of the case, for an arguable appeal and in those circumstances we allow it to go forward on both grounds. The normal directions for skeleton arguments within 14 days of the date of the appeal will apply. We will list it as category C for half a day