Appeal Nos  EAT/672/01,     	                     EAT/1102/01,
		EAT 1103/01
		EAT/689/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 2002

Before
THE HONOURABLE MR JUSTICE WALL
MRS A GALLICO
MS P TATLOW

EAT/672//01 & EAT/1102/01

OFFICE FOR NATIONAL STATISTICS	APPELLANT

MR A ALI	RESPONDENT

EAT/689/01 & EAT/1103/01

MR A ALI	APPELLANT

OFFICE FOR NATIONAL STATISTICS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Office for National Statistics	MS ROMNEY
(of Counsel)
Instructed by:
Messrs Eversheds
Solicitors
Fitzalan House
Fitzalan Road
Cardiff CF24 OEE	
For Mr Ali	MS PALMER 
(of Counsel)
Instructed by:
Messrs Bolt Burden
Solicitors
16 Theberton Street
London N1 OQX	

THE HONOURABLE MR JUSTICE WALL

1	Most unusually, we have before us four appeals for preliminary hearing.  On 22 April 2000, Mr Ali filed a form IT1 alleging race discrimination and victimisation against the Office for National Statistics (ONS).  That application was defended and resulted in a hearing before the Tribunal on 28 March last year, when the Tribunal gave reasons for finding race discrimination under section 1(1)(a) of the Race Relations Act 1976 in respect of Mr Ali’s application for employment with ONS, but found against him on victimisation under section 2(1)(d).

2	Both parties have appealed that Decision.  Mr Ali was first in time on 3 May, when he appealed the Decision that he had not been victimised, and ONS filed a Notice of Appeal against this finding of race discrimination on 4 May, a day later.  

3	On 18 July, there was a remedies hearing before the Tribunal in which the Tribunal awarded Mr Ali the sum of £32,993.75.  Again, both parties have filed Notices of Appeal against that Decision, hence the four appeals.  

4	We have, this morning, heard argument on behalf of ONS in relation to both liability and remedies, and we take the view that there are arguable points on both appeals which need to be, and should be heard, by the Employment Appeal Tribunal.  Likewise on the question of victimisation, we take the view that Mr Ali has arguable grounds of appeal, which likewise should be heard before the EAT.  

5	On the question of quantum, clearly if ONS succeeds in relation to liability, and Mr Ali fails, then no question of quantum will arise, but if, on the other hand, Mr Ali succeeds on his victimisation claim, then it is likely there will have to be a fresh hearing on quantum before the Employment Tribunal.  In those circumstances, we think it would be sensible if we were to allow Mr Ali’s appeal on quantum to go through at this stage; although we propose to direct that the two liability appeals be heard first, for the reasons which I have just given, namely that if ONS succeeds on liability, then there will be no need for any further quantum hearing.  Only if Mr Ali succeeds will it be necessary for there to be a further hearing.  

6	The factor which leads to this particular judgment is that in his Notice of Appeal, and in an affidavit which he has sworn, in accordance with the Rules, Mr Ali raises the question of bias against the Chairman.  We have, of course, read Mr Ali’s affidavit with care, and we have also read the Chairman’s comments on it, and we have also had the advantage this morning of an amended Notice of Appeal in which Ms Palmer has been able to delete a number of allegations whilst leaving others in place.  

7	We propose to deal with this aspect quite shortly.  An allegation of bias is a very serious matter and one which requires a high standard of proof to establish.  In this case it is unusual for such an allegation to be made because the Tribunal, as we have indicated, found for Mr Ali on, certainly one aspect of his claim in relation to liability, and also made an Order for damages in his favour.  It is therefore very difficult, intellectually, to see where bias creeps in.  

8	We are quite satisfied that this case does not come to the standard necessary to allow an allegation of bias to go forward, and we are reinforced in that view by the fact that when we look at the Notice of Appeal, as we were taken through it this morning by Ms Palmer, it is quite clear that a number of important points which Mr Ali wishes to raise, can properly be raised as arguments of errors of law, either in failing to take into account proper evidence or otherwise.  In those circumstances we are quite satisfied, having considered the matter carefully that there is no danger of Mr Ali’s appeals being in any way prejudiced by the fact that we are not allowing the allegations of bias to proceed.  

9	What we would like Counsel to do, if she can, is to file a fresh Notice of Appeal, rather than an amended Notice of Appeal, setting out the allegations in relation to perversity, and the other grounds of appeal in relation to the law, on the liability appeal, so that the Tribunal will then have before it, very clearly, the allegations which are being made, either of perversity or other errors of law.  For the reasons we have just given earlier in this judgment, it seems to us sensible that the two liability appeals should be listed together, and no doubt Counsel can help as to which should go first, and any other directions that may be required.