Appeal No. EAT/1025/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 May 2002

Before
MISS RECORDER ELIZABETH SLADE QC
MR A E R MANNERS
MS B SWITZER

DR J B ILANGARATNE	APPELLANT

BMA & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR STILITZ
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme

MISS RECORDER SLADE QC

1	This is the Preliminary Hearing of an appeal by Dr Ilangaratne from the dismissal by an Employment Tribunal of two complaints of victimisation under Section 2 of the Race Relations Act 1976, which he brought against the British Medical Association and Dr Smith, who was editor of the British Medical Journal.

2	Dr Ilangaratne had previously, in 1997, brought complaints, including a complaint of race discrimination, against the British Medical Association.  It was not in dispute before the Tribunal but that was a protective act within the meaning of the Race Relations Act 1976.

3	In the two applications which were before the Employment Tribunal, complaint was made about delay in publication on its website of two emails written by Dr Ilangaratne.  The British Medical Journal had introduced, in May 1998, a rapid response facility on its website, whereby readers could post responses and contributions on issues.

4	It was said by the British Medical Journal that it would post a response from its website within 24 hours, so long as a response contributes to a topic under discussion and does not break patients’ confidentiality or libel anyone.  The Employment Tribunal found that a significant percentage of such responses were not in fact posted on the website within 24 hours.

5	The first Originating Application lodged by Dr Ilangaratne concerned delay in publication of an email which he wrote on 27 June 2000, which was not published on the website until 8 July.

6	The second Originating Application concerned an email written by him on 24 December 2000, which was not published on the website until 10 January 2001.  The Tribunal had to consider whether the acts of the British Medical Association and Dr Smith, in not publishing until the dates referred to were acts of victimisation under the Race Relations Act 1976.

7	Mr Stilitz, who appears for Dr Ilangaratne, under the auspices of the ELAAS representation scheme, advances three grounds of appeal.  The first is bias.  It is contended that the Tribunal was biased against the Appellant and a number of matters are relied upon in submissions to us to make good that contention.  We will deal with some, but not all of those contentions and not necessarily in the order in which they were advanced to us.

8	First we deal with the allegation that the Tribunal in its decision in paragraph 2 referred to a number of matters, which it is contended were wholly irrelevant to the proper consideration of the applications before the Tribunal but which, it is said, exhibited the bias against the Applicant before the Tribunal, Dr Ilangaratne.

9	In our view there is some force in the contention that the matters referred to in paragraph 2 of the Employment Tribunal’s decision are wholly irrelevant to its proper consideration of the complaints before it and it is arguable that their inclusion could be taken as an indication of a bias against Dr Ilangaratne.

10	It is also contended on behalf of the Appellant that, in the course of responding to enquiries made of the Chairman and of the members, following the Preliminary Hearing in this matter, the Chairman on occasion, in response, used what is described as gratuitous and intemperate language.

11	We have seen and considered the Chairman’s responses, which include such words as:

“Rubbish”

and some explanations, which perhaps may give rise to some concern.  Without going into the detail of each of the responses to the allegations, we consider that there is some basis for concern about the nature of the responses given to the affidavit of Dr Ilangaratne.

12	It is also said, on behalf of the Appellant, that the very fact that the wing members of the Tribunal responded, not by way of Affidavit, but by way of statement, and that the Chairman did not take up the opportunity of further responses to the allegations made against him, gives rise to the possibility of drawing an adverse inference of bias.  Whilst we consider that there is, in the circumstances of this case, perhaps not a great deal of difference between the responses given by way of statement and by way of Affidavit, nonetheless, we consider that there is some, although not a great deal of force, in this point.  

13	Thus, whilst on the particular facts of this case we have questioned whether, even if there were bias shown on the part of this Tribunal, it is likely to have affected the outcome, in that this was not a case which turned centrally, or even very importantly, on the credibility of evidence, nonetheless, we consider that there is some force in the contention that such animus may possibly have be said to have affected the weight which the Tribunal placed upon the gravity of the allegations made by the Appellant before us.  Accordingly we consider that this ground of appeal and bias is sufficiently arguable to proceed to a full hearing.

14	Secondly, it is said, on behalf of the Appellant, that the Employment Tribunal failed to deal with complaints made of detriment by the Appellant adequately, or came to a perverse conclusion on them.  This contention relates in particular to an alleged failure to deal with an allegation raised in the first Originating Application, that the posting of the Appellant’s email on the website was delayed, so as to coincide with an article which was to be published on the website by Dr Smith, a piece entitled:

“Bores on the Web”

15	It is contended that the Tribunal did not deal at all with the allegation that the delay in publication was so as to have a coincidence of publication of the email and of the article to which we have referred.  

16	Alternatively, and this is an allegation which applies to complaints made in both Originating Applications, it is said that the finding of the Tribunal, in paragraph 6 of its decision, that:

“There were practical reasons for the delay in both cases”

was perverse, in the light of the findings of fact made by the Employment Tribunal.  We have referred to contentions in relation to the first Originating Application.  

17	So far as the second Originating Application is concerned, there was a seemingly unexplained period, 1 week of delay, from 3 January to 10 January 2001, and it is said that the Tribunal failed in its decision-making obligations to deal with delay in the second case.  A similar complaint is made in relation to the first case.  Or that the conclusions reached on delay, and this applies to both applications, were perverse on the findings of fact.  Again, we consider that these arguments do raise questions of law and should proceed to a full hearing.

18	Finally, it is said that the Tribunal misdirected itself as to the test to be applied in determining whether there has been a detriment within the meaning of the Race Relations Act 1976.  The Tribunal, in paragraph 6 of its decision, directed itself thus:

“The Tribunal had to ask itself how this “victim” had suffered.”

And a little later:

“Has he suffered by the delay in posting?”

19	It is contended that the Tribunal should have asked itself whether the Appellant had been put at some disadvantage by the actions complained of and references made to Garry v London Borough of Ealing [2001] IRLR 681, which considered Jeremiah v Ministry of Defence [1979] IRLR 436.  In our judgment, again this ground of appeal too does raise an arguable point of law and we permit this ground to proceed to a full hearing.

20	The result is that this appeal is to proceed to a full hearing.  Some of the points raised may be thought to have greater weight than others but the appeal may proceed on the three grounds advanced before us.  We are greatly indebted to Mr Stilitz, who has appeared under the ELAAS scheme, for the assistance that he has given to this Employment Appeal Tribunal.