Appeal No.	 EAT/738/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR K M HACK JP
MR R JACKSON

MISS M MOORE	APPELLANT

(1) TRAVELSPHERE LTD 	RESPONDENTS
(2) MR P NEWCOMBE (3) MS C SAWYER (4) MARK WATTS	

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS C HYDE
(of Counsel)
Instructed by:
Ms S Hughes
Commission for Racial Equality
Alpha Tower (11th Floor)
Suffolk Street
Queensway
Birmingham
B1 1TT	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether Miss Moore has an arguable point of law in respect of her appeal against a unanimous decision of an Industrial Tribunal held at Leicester on 9th April 1997. It was their decision that the applicant had not been discriminated against because of her race, nor was the conduct of the respondents, that is her former employers, Travelsphere Ltd and certain named individuals, such that there had been a breach of trust and confidence entitling her to claim constructive dismissal. The tribunal’s decision, in extended reason form, is dated 1st May 1997 when it was sent to the parties.

	It seems to us that there are arguable points of law fit for hearing before the Employment Appeal Tribunal. Primarily there are two matters. 

	Firstly, there is a criticism of the way that the tribunal have set out their findings. In fact the criticism is that they have not set out sufficient findings in their decision to enable the appellant to know how they have dealt with important parts of her case. For instance, in relation to the background allegations of discrimination in 1992 and 1994, the tribunal appear not to have made any findings as to the connection or possible connection between those matters and the way she was subsequently treated thereafter. That was an important matter for them to deal with, bearing in mind, in particular, that there was a victimisation complaint.

	Secondly, it seems to us that it is arguable that the Industrial Tribunal have not properly dealt with the comparative element in the discrimination claim, that is the direct discrimination claim and the victimisation claim. The Race Relations questionnaire which was served in this case was referred to in paragraph 16. It is submitted that it is not clear whether these are findings of fact. It is suggested that if they were findings of fact, then they are inconsistent with the very terms of the questionnaire and the schedule which was referred to therein. That might raise questions as to whether the tribunal properly directed itself to the statutory requirement to have regard to the terms of questionnaires in arriving at decisions in this type of case. There are other points in relation to this second submission which do not need to be detailed here, but which are, in our judgment, self-evident from the terms of the amended Notice of Appeal and the helpful skeleton argument supplied in support of it.

	Accordingly, on those and on the other grounds in the amended Notice of Appeal, we consider that the matter should go for a full hearing.

	This is a case which raises the familiar difficulty as to the proper approach to be taken by Industrial Tribunals to cases of this sort. In particular, where it is being alleged that one person’s capability is being dealt with in a way which is different from that of others. 

	It seems to me, therefore, that this should be classified as a Category B case fit for hearing before a High Court Judge. Our estimate is that it will last one day. Our view is that the criticism that is being made is of the terms of the decision itself and that Notes of Evidence are not required. I think that those are the only direction I need give at this time.