Appeal No. EAT/0942/01 & EAT/1251/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 July 2002

Before
MS RECORDER COX QC
MS J DRAKE
MR P A L PARKER CBE

MR PHILTON MOORE	APPELLANT

(1) THE UNIVERSITY OF GREENWICH	RESPONDENTS
(2) RUSSELL BROCKETT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PHILTON MOORE
(the Appellant in Person)	

MS RECORDER COX QC

1	This matter comes before us today by way of Preliminary Hearing.  It concerns two separate appeals arising from the decision of the London (South) Employment Tribunal, promulgated on 12 June 2001, dismissing the Appellant’s complaints of race discrimination and victimisation.  Our task at this Preliminary Hearing is to determine whether any arguable error of law exists in the Tribunal’s decision.

2	This case has had a complicated procedural history and the Appellant has represented himself throughout the proceedings, which commenced with the lodging of his Originating Application on 3 November 1999.

3	Briefly, the Appellant had applied for the post of Junior Law Lecturer at the Respondent University and had not been short-listed.  He alleged that this was due to unlawful racial discrimination and to victimisation because of previous race complaints made by him against the University and its staff, including one of the short-listers, Professor Chambers.

4	The Respondents resisted the complaints on the basis that the short-listed candidates met the selection criteria more closely than the Appellant and that the short-listers had no information about any of the Applicants concerning their race, ethnicity or national origins.

5	There is now no longer any need for us to deal in any detail with the procedural background in relation to the first appeal, No. 1251.  This related to the Appellant’s request that the Employment Tribunal should recuse themselves before resuming to hear the case in January 2001, the matter having gone part-heard from June 2000.
6	The Appellant agrees, appearing before us today, that this no longer raises any live issue to be dealt with on appeal because, as a matter of fact, the Tribunal did resume in January 2001 and did hear the complaints through to their conclusion and arrive at their decision.

7	The allegations of bias which were made, in relation to that first appeal, are now therefore subsumed in the substantive appeal and the Appellant has agreed that the appropriate course to take is that that first appeal should be dismissed.  We therefore so order.

8	We turn then to address the substantive appeal, No. 0942.  There were originally some 70 grounds of appeal in a Notice settled by Mr Moore, the Appellant, which alleged errors of law, bias and irrationality on the part of the Tribunal.  The allegations of bias were further dealt with in an affidavit from the Appellant and commented upon by the Chairman and we have those documents before us.

9	The Appellant provided a Skeleton Argument dated 25 June 2002 and he has appeared before us today.  Today he has had the benefit of assistance from Mr Burns (attending as the ELAAS representative) and with this assistance the Appellant has been able to distil the grounds of appeal, which he seeks to argue at a full hearing, to just 5; all of which he has argued before us.

10	Having heard from the Appellant and considered these grounds we are persuaded that they all raise arguable errors of law which merit attention at a full hearing by this Employment Appeal Tribunal.

11	The 5 grounds are these.  The first ground relates to the finding by the Tribunal, in paragraph 5 of their decision, that the second Respondent, Mr Brockett, did not appear in person before the Tribunal and thus his evidence was not subjected to cross-examination.

12	The Appellant has today provided us with a copy of an Order made by the Regional Chairman, dated 9 January 2001, shortly before the hearing resumed, in which an Order was made of the Tribunal’s own motion for Mr Brockett to attend so that he would be available to be questioned by either side and by the Tribunal in relation to the issues in the case.

13	The Appellant argues that in fact Mr Brockett did attend before the Tribunal, gave evidence in chief briefly and was then cross-examined quite extensively on the equal opportunities issues on which the Respondent University relied in resisting the complaint and matters such as equal opportunities policies and diversity training for members of the University.

14	All these matters were clearly relevant to the allegations of discrimination which were being made by the Appellant.  In relation to that ground, we can see that it is clearly arguable that something amounting to an error of law has occurred and we therefore agree that that should go forward.

15	The second of the 5 grounds relates to a difference in findings between the majority members of the Tribunal and the one minority member who disagreed with the majority dismissal of the Appellant’s complaints.

16	In paragraph 11(a) of the Tribunal’s decision the majority of the Tribunal found as a fact that the application forms sent to the short-listers had the candidates’ names blanked out and that the short-listing thus took place without there being any overt evidence of any candidate’s name, race or gender.

17	However, in paragraph 18 the minority member of the Tribunal, it is said:

18	(c)	“…heard no evidence that the names were blanked out on the application forms prior to them having been passed to the different groups.  Evidence was given that the names were blanked out at the point when the results and the mark sheets were given to the Applicant and that numbers were used instead of names.”

18	The Appellant argues, and we see the force of his argument, that, given the dispute between the majority members and the minority member on this issue, it was incumbent upon the majority to give a full explanation, at paragraph 11 (a) as to their finding about anonymity in respect of the candidates names sent to the short-listers and we see an arguable error on that point in addition.

19	The third ground is one in which the Appellant argues that the Tribunal simply failed to deal at all with his complaint of indirect discrimination.  Although it is fair to say that this is pleaded, somewhat obliquely, in the Originating Application there are a number of references within his pleading to the fact that he objected to the requirement of teaching experience having been a requirement which was imposed on all Applicants, it being a requirement with which he could not comply.  He tells us that he had therefore argued in the alternative that there was indirect race discrimination because evidence was adduced before the Tribunal to the effect that very few members of ethnic minorities can gain the teaching experience required in order to enable them to qualify for the post.

20	Whatever may have been the evidence before the Tribunal it is arguable, in our view, that the Tribunal simply failed to address this issue at any point in their decision and so we consider that this matter should go forward in addition.

21	The fourth point relates to the finding on victimisation in paragraphs 12 and 13, on which the majority agreed that the complaint should be dismissed.  The Appellant argues, and it is clear from his Originating Application, that in addition to making allegations under Section 2(1)(d), that the discriminator had committed an act which would amount to a contravention of the 1976 Act., he had also relied on Section 2(1)(a) in relation to previous court proceedings brought against the Respondent University, in one of which Professor Chambers (one of the short-listers) was named as a Respondent.

22	The Tribunal failed to make any reference to the proceedings under Section 2(1)(a) and we consider that to be an arguable error on their part because they failed to address that issue as part of their reasoning in relation to the victimisation complaint.

23	In addition, the dismissal of the victimisation complaint is clearly linked to the majority finding of fact on anonymity relating to the candidates to be considered for short-listing and so this point, point 4, is very much linked to point 2.

24	The final ground, ground 5, refers to the allegations of bias on which the Appellant relies and which he has covered in some considerable detail in the written affidavit and the other documents which are presently before us.

25	He recognises this morning in oral submissions that this is a serious allegation to make and that he does not make it lightly, but having heard from him and having read the affidavit and other documents, we are all of the view that this matter should proceed to be considered at a full hearing by the Appeal Tribunal.

26	It seems to us that there are a number of directions which we ought to give as a result of our Order.  The first is that there should be some proper amendment to the Notice of Appeal to reflect that these 5 grounds of appeal are now the only grounds which should be considered by the Appeal Tribunal at the full hearing.

27	It seems to us that there should also be an Order for the Appellant to provide a further affidavit, as has already been mentioned, dealing solely with the question of bias.  That, it seems to us, is something that can be lodged with the Appeal Tribunal at the same time as the amended Notice of Appeal, and we order that that should be 21 days after receipt of the transcript of this judgment.

28	We also consider that the Chairman and both the Lay Members should be afforded the opportunity to comment, if they wish to, on that new affidavit, which will confine itself to the questions of bias.

29	There should also be a request for production of the Chairman’s notes; i.e. the notes of evidence which deal with the grounds of appeal which we are permitting to proceed to a full hearing.  That will be grounds 1-5 addressed in this judgment and the Chairman ought to be asked to supply notes of evidence which deal with those matters.

30	The bundle of documents for the Appeal Tribunal for the full hearing ought to include the documents which the Appellant has handed in today, which I call Bundle A1, which is the Application for Appointment form and the letter from the Regional Chairman to Langley & Co. and the Appellant dated 9 January 2001.

31	I think that completes all the consequential directions that are necessary at this point but no doubt if there are any others required, they can be dealt with in the usual way through correspondence with the Tribunal.