Appeal No.	 EAT/324/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 July 2000

Before
HIS HONOUR JUDGE WILKIE
MR J R CROSBY
MISS G MILLS

HERTZ (UK) LTD	APPELLANT

MRS JACQUELINE LOUISE TODD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G PRICHARD
(of Counsel)
Instructed by Mr J Finch
Senior Commercial Lawyer
Hertz House
700 Bath Road
Cramford
Middlesex
TW5 9SW	
For the Respondent		

JUDGE WILKIE

1	This is an appeal by Hertz (UK) Ltd against certain decisions made by the Employment Tribunal by decision promulgated on the 19 January 2000 arising out of a hearing which took place on 5 days in March and September 1999.  The formal decision of the Tribunal was that the Applicant was discriminated against on the grounds of her race.  The decision also, inter alia, included a conclusion that she was not unfairly dismissed and was not victimised on account of her race.  

2	The finding of racial discrimination appears from paragraph 9 to 11 of the decision.  Paragraph 11.4 sets out the essence of the Tribunals finding namely that she was discriminated against in not being properly considered for promotion to jobs to which she was suited and qualified and in not having her grievance properly dealt with.  

3	The ground of appeal in respect of this aspect of the matter, is based upon the submission that the Tribunal was not being asked by the Applicant to consider the question of discrimination against her on the grounds of race in respect either of promotion or not having her grievance properly dealt with, the subject of the grievance being a complaint that she was not being granted promotion.

4	This stems from an order made following a pre hearing discussion on the 13 November 1998 by a Chairman of Tribunals different from the Chairman who presided over the substantive hearing.  In the order arising out of that meeting, at which the Applicant appeared in person, it is said that her complaint is of unlawful discrimination by way of victimisation and it identifies the protected act as being an internal grievance.  The allegation was that her treatment, the subject of the grievance, might be race discrimination.  Arising out of the protected act the allegation was of victimisation in two respects.  The first was the outcome of the grievance appeal and the second was victimisation in respect of being sent various documents.  

5	What Mr Pritchard says is that at the Employment Tribunal the focus of his submissions and, indeed he says that of the Applicant’s Counsel consistent with this approach, was the issue of victimisation arising out of the outcome of the grievance procedure.  The question of her grievance that she had been discriminated against on the grounds of race by virtue of not being promoted was of relevance, not as a substantive claim of race discrimination.  If it had been a substantive complaint there may have been questions of time limits etc.  That was the background of the taking of the grievance which, in turn, was the protected act giving rise subsequently to victimisation.  He therefore says that the Employment Tribunal erred fundamentally in addressing the question of lack of promotion as a substantive complaint itself of race discrimination.  In so doing it simply ignored, and failed to deal with the question of why it was ignoring, the apparently clear definitive statement of issues made in the order arising from the pre hearing discussion.  He has indicated that the Tribunal had skeletons of closing submissions from both parties which were exchanged between parties.  It seems to us that it would be very helpful to the Employment Appeal Tribunal considering this matter where those respective skeleton arguments to be in the appeal bundle as they will provide best evidence of the nature and structure of submissions that were made.

6	We are satisfied that this is a matter which does require to be looked at with both sides present and therefore on this ground we agree that it should go forward to a full hearing.  The Notice of Appeal also raises a question in respect of victimisation because, on the face of it, there does appear to be a contradiction between the decision that there was no victimisation and the statement in paragraph 12.2, of the decision that there was victimisation because she made a complaint about her treatment on racial grounds.  It is right to say that the Tribunal then say that there was no victimisation in respect of a specific act, namely as far as confidential documents are concerned.  In the light of the fact that in paragraph 11.4 there was a finding against the Respondent in respect of the grievance being properly or improperly dealt with, and given that that was one of the instances of victimisation relied on, it may be that there is some confusion in the Tribunals decision and therefore it seems to us right that this particular heading of victimisation should also go forward to a full hearing.

7	The remainder of the Notice of Appeal amplifies the earlier ground and does not appear to establish a separate basis for appeal but no doubt that can be considered in due course by the Tribunal.  Considering this at the appeal hearing, at the moment Mr Pritchard does not suggest that the Employment Appeal Tribunal hearing this appeal would be in any way assisted by the Chairman’s notes.  However, given the concern expressed by him as to the way in which the Tribunal conducted its proceedings if either side, upon reflection, wished to raise issues by way of affidavit which ought properly to elicit a response from the Chairman then that is something which they can apply to do in due course.  We note that in the Respondents PHD form it is anticipated that there may be a cross appeal in respect of this decision and no doubt questions whether the Tribunal Chairman should be requested to comment on certain matters may await the filing of any such cross appeal.  It shall be listed category C, no notes of evidence currently required; for ½ day.