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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Derbyshire & Ors v. St Helens Metropolitan Borough Council [2002] UKEAT 1076_01_2003 (20 March 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/1076_01_2003.html Cite as: [2002] UKEAT 1076_1_2003, [2002] UKEAT 1076_01_2003 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J MCMULLEN QC
MS N AMIN
MS H PITCHER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING EX PARTE
For the Appellants | MR DAMIAN BROWN (of Counsel) |
HIS HONOUR JUDGE J MCMULLEN QC
a. First, the failure to identify a comparator. We consider that this is a necessary step in a victimisation claim – see Lindsay v Alliance & Leicester plc [2000] ICR 1234. The majority appears not to do so.
b. Secondly, the Tribunal considered the motive of the Respondent. We consider it is reasonably arguable that that is a wrong consideration – see James v Eastleigh Borough Council [1990] IRLR 288 HL per Lord Goff at para 39. Thus, the Tribunal's focussing on malevolent intent is arguably incorrect.
c. Thirdly, the failure to perform the correct comparison may be thought to follow from both of those errors as alleged above.
d. Fourthly, it is contended that the victimising act of the Respondent here was not simply beyond the control of the council. It is contended that the majority exculpates the Respondent by the depiction of these matters as beyond the Respondent's control. That is an impermissible view of the victimising act which went beyond merely pointing out to the Applicants the potential consequences of their action. We agree that is arguable.
e. Fifthly, it is contended that the Tribunal wrongly considered what it described as strong policy grounds for holding there was no act of victimisation.
"…. there was no factual dispute. The position can be stated simply and shortly."
Mr Brown seeks to attack that decision since any reference, for example, to Chief Constable of West Yorkshire (above) involves an assessment of the state of mind of a person being honest and reasonable. In those circumstances, Mr Brown reasonably argues, the Tribunal ought to have allowed live evidence to go beyond what was written in the letter. That attack in the skeleton argument under the heading of 'Factual Dispute' or under 'Perversity' is apt for a full consideration.
Category B. The skeleton argument for today will be attached to the Notice of Appeal. The Parties will exchange skeleton arguments fourteen days before the hearing.