Appeal No.	 EAT/986/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 January 2002

Before
MR RECORDER LANGSTAFF QC
MRS J M MATTHIAS
MR S M SPRINGER MBE

MR A BHADHURI 	APPELLANT

DONCASTER METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS DAPHNE ROMNEY
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme 	

MR RECORDER LANGSTAFF QC

1	In this matter which comes before us by way of preliminary hearing from an Employment Tribunal sitting at Sheffield, whose Extended Reasons for the Decision were given on 5 July 2001, we propose to give leave for certain matters to be argued more fully before this Tribunal.  We shall do so on a limited basis. Accordingly, it will be necessary to say something about the arguments which we do not regard as having sufficient force, and to say why we reject those. 

2	Contrary to our earlier inclination, Ms Romney who appears under the ELAAS scheme, and for whose submissions we are very grateful, has persuaded us that there is a case which might be properly arguable.  It is on two bases: first, the Tribunal posed itself the questions which have been identified, following discussion, at paragraph 3 of its Decision.  Paragraph 3(1) poses a question which relates just as much, arguably, to a failure to obtain progression as it does to the support systems that were designed for that end.  It is not clear to us that the Tribunal ever explicitly answered that question which they had identified as one of the central issues.  Whether it did so implicitly to a sufficient extent to satisfy the legal requirements upon it is, we think, properly arguable.  

3	Secondly, we are persuaded that the Tribunal focused, for instance in paragraph 8 at the top of page 10 of its Decision upon the genuineness of the explanation put forward by the Respondent.  It might have asked not only whether a belief was honest, but whether it was mistaken.  We think that it is arguable that the Employment Tribunal did not sufficiently, either explicitly or implicitly, deal with the question whether there was any proper basis for a view which they found to be genuine.  That, we think, relates to points which were made by Ms Romney to us in respect of paragraph 10 of the Decision, and we are again concerned that what might be thought to be the compressed nature of the reasoning of the Employment Tribunal in that paragraph should be fully examined.  

4	It is thus on those two bases: did the Employment Tribunal ever sufficiently address the question it posed as issue 3(1) and secondly, did the Employment Tribunal consider sufficiently whether there was any proper basis for the Respondent’s genuine view of the abilities of the Appellant that we think this appeal might be argued further.  

5	We do not think there is any force, other than jury advocacy, in the other matters which have been addressed to us.  So far as the Notice of Appeal is concerned, it was drafted by Mr Bhadhuri himself.  We cannot, we think, relate the handwritten ground at paragraph 6 to the Decision which we have read.  Mr Bhadhuri concluded that the Tribunal had said that the treatment of him was less favourable, but still dismissed the claim of discrimination, whereas the Tribunal, at paragraph 7, did the reverse.  

6	In notes, which he asked to be read in conjunction with the Notice of Appeal, raising that one ground, he has taken a number of factual points.  The factual points at paragraphs 1 - 7 then bring him to what is described as “8: Conclusion”, and a complaint that the focus of the Tribunal in looking merely at extra supervision was too narrow.  To the extent that this is comprehended in the first ground, we have permitted the case to go forward.  

7	We accept, however, that the lack of promotion, in any wider sense, was not, we think, in issue for the Employment Tribunal, viz paragraph 3 of their Decision.  7(b) is an argument, as we see it, from fact.  It was a matter for the Tribunal to weigh it in the balance, 7(c) adds nothing.  As to what is said at grounds 8 - 10, we think that these are arguments in respect of fact.  Paragraph 11 has the same error in that it concludes that the Tribunal did, indeed, find less favourable treatment, but it did not, and 13 is a comment which we think gives rise to no arguable case.  

8	Accordingly, we see nothing in those further grounds of appeal.  Because the arguments addressed to us by Ms Romney have not been formalised, as being in the Notice of Appeal, it is perhaps unnecessary to deal with them, save in this respect: that when asked to encapsulate what she was arguing, at the conclusion of her submissions, she did so in four parts.

9	She argued, first, that the Employment Tribunal erred in law in that it misunderstood the meaning of difference in treatment on the one hand, and less favourable treatment on the other as set out in the well known Zafar case.  We think that it is probably implicit in a decision (as reached at paragraph 7 in the reasoning of this Tribunal), that there was no less favourable treatment that there was here a difference in treatment.  The real issue is whether difference in treatment, which there undoubtedly was, in terms of progression, was dealt with by the Tribunal and if it was, whether that was difference on racial grounds.  As we have indicated, there are arguable points in respect of that.  

10	Her second ground was that the Tribunal failed to make findings of fact on disputed areas of evidence from which they could draw inferences of racial discrimination.  

11	Her third ground was that the Tribunal failed to draw inferences of discrimination from:
 (1) misleading answers to a questionnaire;
(2) a failure to explain why his supervisor continued for some time as supervisor after there had been a complaint of racial discrimination by him against her.

12	Save in so far as those may be relevant in considering whether the Tribunal sufficiently dealt with the issue of unconscious discrimination, we do not think they give rise to any separate ground for complaint.  The permission that Tribunals have, so necessary in the context of race discrimination, to draw inferences does not oblige them to do so, and therefore, it does not, save in the context of a sufficient explanation for the reasons it reaches, oblige a Tribunal to explain why it is not doing so.  

13	As to the fourth ground, the failure to consider the entirety of the evidence and whether, in the circumstances, the Appellant had been subject to unlawful race discrimination, is we think, something of a catch-all, a round-up plea.  We do not think it adds anything as a separate head of appeal.  In effect it is a complaint that the Decision was other than the Appellant would have wished.  We do not think it adds anything to the heads of appeal which we have identified.  

14	Having dealt with the reasons why we dismiss some of the complaints which have been raised by the Appellant, whilst giving leave to proceed on the limited grounds that we have, we must now deal with directions for the hearing.  We think that the hearing will take half a day, it is Category C, Skeleton Arguments to be provided no less than seven days prior to the hearing, together with photocopies of any authorities to be relied upon.  We do not think that the notes of evidence are necessary, and we are happy to hear if there are any further directions that the parties might wish.