Appeal No. UKEAT/0146/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 July 2008

Before
HIS HONOUR JUDGE McMULLEN QC
MR C EDWARDS
MR P GAMMON MBE

1)  RICHMOND PHARMACOLOGY LIMITED	
2)  MR A BAMINGBOSE	APPELLANTS

MR M A GILLANI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J SEGAN
(of Counsel)
Instructed by:
Messrs Edwin Coe LLP Solicitors
2 Stone Buildings
Lincoln’s Inn
London  WC2A 3TH
	
For the Respondent	MR A GILLANI
(The Respondent in person)	

SUMMARY

RACE DISCRIMINATION:  Direct 
Consent to appeal with controlled remission to fresh Employment Tribunal, given by Claimant at close of Respondent’s opening. 

HIS HONOUR JUDGE MCMULLEN QC

Introduction
1.	The outcome of this appeal is that it will be allowed by consent to the extent of its remission.  What is not allowed by consent is the venue, as to which the competitors are the same Employment Tribunal or a different one.  For reasons which we will give, we have chosen the latter.

2.	Because of the remission, it is not necessary for us to say much about the proceedings.  This is a case in which we are satisfied we have the Claimant’s informed consent to this case being disposed of in the way which has been ventilated before us.  He has addressed us through his interpreter and understands the options available.  

Background
3.	This case concerns a very large number of allegations made by the Claimant in proceedings against his employer and his line manager, the First and Second Respondents.  A six‑day hearing took place including two days in Chambers before Employment Judge Sage and Members resulting in a reserved judgment on 24 January 2008.

4.	Broadly speaking, the vast majority of the Claimant’s case failed.  There is no appeal. Although we see the word “cross‑appeal” in the Respondent’s answer it is not such.  In short, the Claimant seeks to uphold the one finding in his favour which is that he was subjected to harassment on the grounds of his race by the First and Second Respondents.

5.	Liability in this case for the First Respondent is entirely dependent upon the finding of the Second Respondent for that is the correct construction of the way in which this case was brought and has been case managed at a CMD.  There is no separate allegation against the Respondent that it was discriminatory directly or indirectly or that it harassed the Claimant in its approach to the subsequent investigation of his grievance.  That therefore will form no part of the controlled remission we make.

The Issues
6.	The central issue in the case when it returns to an Employment Tribunal will be to determine the Claimant’s case as to what happened at two incidents; namely, 29 June 2006 and 28 July 2006.

7.	The Claimant’s case containing allegations extending back a period of three years has been disposed of now by the Employment Tribunal and remains untouched here.  This case is much narrower than it was before the Employment Tribunal.

8.	We are satisfied that this is a proper case in which we can allow it by consent for there are very forceful arguments made on behalf of both Respondents as to the correct approach to the making of findings by the Employment Tribunal.  We have been referred to Consistent Group Ltd v Kalwak & Ors [2008] IRLR 505 May LJ which will be relevant to the findings by the Employment Tribunal.  Paragraphs 46, 59 and 61 must be carefully considered by the Employment Tribunal which hears this case.

9.	It must also make findings as to credibility for, on the evidence presented to the first Tribunal, there is a clash as to who said what on the June incident.  As to the July incident, there is written evidence from Mr Akram but he may well be called as a witness pursuant to an order which will be made.

10.	This appeal is allowed by consent.  We had considered carefully the factors in Sinclair Roche & Temperley and Ors v Heard and Anor [2004] IRLR 763, in considering whether to remit the case.  On the one hand, six days’ work have gone into the preparation of this extremely long judgment, extending to 34 pages.  We are aware that the Claimant is presently off sick and has been for a while on account of depression.  

11.	We accept the submission made by Mr Segan on behalf of the Respondents that it will be difficult for the Tribunal, on a controlled remission, without hearing evidence, simply to decide differently in relation to the account given of the two incidents.  The case is now a one‑day case and there is little utility in sending it back and trying to reconstitute the same Employment Tribunal to hear this part of the case.  Although the Respondent cannot convincingly say that it has lost confidence in this Employment Tribunal (having, after all, won the lion’s share of the case) we do take the point that although the Tribunal of course will be highly professional if it heard it again, the central issues as to credibility apparently would need to be contested.  

12.	Although we have heard what Mr Gillani says about going back to the same Employment Tribunal, it would not be fair to the Respondents to go back before this one.  It must also be borne in mind that this Tribunal found against Mr Gillani on the vast majority of his claims.  So, in fairness to all three parties, this case will be remitted to a differently constituted Tribunal.

13.	It is said that Mr Akram is in fear and so we invite the Employment Tribunal to issue a witness summons for him to attend at the hearing, for we understand he is presently employed by the Respondent.  If there are any other issues arising out of the case management of this case, directions can be given by the Employment Tribunal.

14.	We would very much like to thank Mr Segan for his submissions and Mr Gillani for his very sensible approach to this case.  Now that the case is back in the Employment Tribunal, all three of us consider that the parties should now take steps to try and conciliate this matter.  Mr Gillani is unrepresented but we now direct that within 28 days the parties, initiated by the Respondents, contact the ACAS officer in charge of this case at the Employment Tribunal and, on our direction, invite the officer to seek a conciliated solution of this case.

15.	We set aside the judgment and the award.  The parties to report to the Employment Tribunal on the steps they have taken to try and resolve this dispute through conciliation but not of course the substance of those steps.  We make that direction because the parties are still engaged in an employment relationship.  There will be saving of management and legal costs to the Respondent and there will be saving of the Claimant’s health, if he can avoid another stressful appearance at the Employment Tribunal.

16.	Those are matters out of our hands now.  There will be a transcript of this judgment.