Appeal No. EAT/0079/03 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 June 2003

Before
HIS HONOUR JUDGE PETER CLARK
MS K BILGAN
MR I EZEKIEL

MR R BALLAMOODY	APPELLANT

NURSING & MIDWIFERY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R BALLAMOODY
(the Appellant in Person)	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Mr Ballamoody, the Applicant before the Manchester Employment Tribunal sitting during October 2002 and in chambers on 5 November 2002, against that Tribunal’s Reserved Decision, promulgated on 18 November, dismissing his complaints both of direct racial discrimination and victimisation contrary to section 2 (1) of the 1976 Act, brought against the Respondent Nursing & Midwifery Council.

2	The history of this matter is long and complicated, but can be seen from the helpful summary of the facts to be found in the judgment of Ward LJ in Ballamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 647 at paragraphs 3-21.  The matter went to the Court of Appeal on the Appellant’s appeal against a strike out order made in these proceedings.  The appeal was allowed and the case remitted to the Employment Tribunal for a full hearing.  It is the result of that full hearing which is today under appeal.

3	Mr Ballamoody has advanced a number of grounds of appeal to be found in his original grounds and in supplemental grounds.  These have been developed even further in a lengthy Skeleton Argument running to some 29 pages.

4	This is a Preliminary Hearing held to determine whether or not the appeal raises any arguable point or points of law which ought to proceed to a full bilateral hearing.  Having considered the extensive documentation and the oral submissions made by Mr Ballamoody we consider that this appeal is arguable but in one respect only.  

5	Referring to his grounds of appeal, at paragraph 2 of the grounds he puts his case, perhaps a little inelegantly, in this way:

2	“Members of the Tribunal were unclear about the principle of hypothetical comparator.  The Tribunal has not drawn proper inference in its application to my case.  (see case Chief of West Yorkshire Police v Vento [2001 IRLR 124 EAT].”  [the judgment of Lindsay P on constructing the hypothetical comparator].

6	We think, having looked at that part of the Tribunal’s Reasons which deal with the direct discrimination complaint, that there is here an arguable point of law.  The Tribunal having accepted the hypothetical comparator advanced on behalf of the Applicant, found that there would have been a difference in treatment between the Appellant and that hypothetical comparator, and yet have concluded that the explanation put forward by the Respondent is an adequate and acceptable one so that no direct discrimination arose.  It is this part of the appeal which we think ought to proceed to a full hearing without in any way giving an indication as to how the matter may be ultimately resolved.  At the very least, it will require argument from the Respondent on that part of the appeal.

7	The other part of the claim relates to the victimisation complaint under section 2 (1) of the Act.  As to that, the Tribunal accepted that the Appellant had done at least one and rather more than one protected act.  However, they found as a fact that the relevant committee members, who made the decision said to amount to the detriment in this case, had no knowledge of that protected act.

8	On this part of the case the Appellant has sought to persuade us that the Tribunal was wrong to make that finding of fact, that his evidence ought to have been accepted in preference to that of the Respondent.  That, it seems to us, is the classic fact-based appeal which we have no jurisdiction to entertain.  
9	Although we note that recently the Court of Appeal have deprecated the elimination of grounds of appeal at this Preliminary Hearing stage, we cannot believe that our powers to case manage have been totally negated by that decision and we think it is in the interests of all parties and this Tribunal that the full hearing should be limited to arguable issues and not peripheral matters and questions of fact which will not assist the Appellant.

10	In these circumstances, we have concluded that the proper course is to allow the appeal to proceed on ground 2 of the original grounds of appeal in the Notice dated 23 December 2002 only.  All other grounds of appeal are hereby dismissed.

11	For the purpose of the full hearing, the case will be listed for half a day.  If the parties disagree with that time estimate they should notify the Tribunal in writing.  Category B.  The appeal will be heard before a judge and two members.  Within 14 days of the seal date of this Order, the Respondent must lodge with the EAT and serve on the Appellant an Answer; and if that Answer includes a cross-appeal shall forthwith apply to the EAT on paper on notice to the Appellant the directions as to the hearing of such cross-appeal.

12	The parties shall co-operate in compiling and agreeing, by no later than 35 days prior to the date fixed for the hearing of the full appeal, and lodge with the EAT, four copies of an agreed indexed and individually paginated bundle of material documents for the hearing of the appeal.  Those documents to be limited to the documents necessary to determine ground 2 of the Notice of Appeal.

13	The Appellant will lodge with the EAT and serve on the Respondent a chronology and the parties shall exchange and lodge with the EAT Skeleton Arguments for the purposes of this appeal on the limited ground on which it has been allowed to proceed, not less than 21 days before the date fixed for the hearing of the full appeal.

14	Finally, the parties shall co-operate in agreeing a list of authorities and shall together, or separately prepare a list or lists and copies of those authorities, for the purpose of the appeal, not less than 7 days before the date fixed for the hearing of the full appeal.  There will be liberty to the parties to apply on paper on notice to the other party to vary or discharge any part of this Order.

15	Any application for Chairman’s notes of evidence in relation to the single ground of appeal on which this appeal has been allowed to proceed should be made in writing within 14 days, in the absence of agreement between the parties within 7 days as to the material parts of the evidence relevant to the single ground of appeal.