Appeal No. EAT/652/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 2001

Before
MR COMMISSIONER HOWELL QC
MISS C HOLROYD
MRS M T PROSSER

MR C WILLIE	APPELLANT

COMPANIES HOUSE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MISS K MONAGHAN 
(of Counsel) 
Instructed by:
Messrs Thompsons
Solicitors
18 Lawford Street
Bristol BS2 ODZ	

MR COMMISSIONER HOWELL QC

1	In this appeal which is before us today for preliminary hearing, Mr Charles Willie seeks to have set aside, as erroneous in point of law, the decision of the Cardiff Employment Tribunal contained in Extended Reasons sent to the parties on 12 April 2000, on issues arising from his complaint of racial discrimination against his employers Companies House in relation to an application and selection process for the post of an Assistant Registrar of Companies in Anguilla, which the Department of International Development had asked Companies House for their assistance in providing.  

2	This case has already been before this Appeal Tribunal on 30 November 1998 when the appeal then brought by the Appellant was withdrawn on the basis of a Consent Order remitting the case to a fresh Employment Tribunal to conduct a preliminary hearing to determine whether certain issues were properly before the Tribunal or not.  In particular, the issue which needed to be resolved before any question of a full hearing into the facts and merits of the case took place, was whether the complaint disclosed any proper case against Companies House.  The facts were that out of the two candidates put up for selection by Companies House, Mr Willie was the one not selected by the interview panel which made the actual choice of the employee to be offered the job.  I should say that Mr Willie is black African Caribbean, and the successful candidate, who was of a lower employment grade in Companies House, was white.  

3	The interview panel which made the selection did not include any employees of Companies House, but was composed of a member from the Department of International Development and somebody acting on behalf of the authorities in Anguilla, with a neutral chairperson.  

4	The real issue in the case was whether Mr Willie’s complaint, that the fact that he was the one not selected had been due to racial discrimination against him, could involve any complaint of racial discrimination on the part of Companies House as his employers, or for which Companies House as his employers were liable.

5	Miss Monaghan who has appeared before us today has helpfully summarised the two major questions as being whether the Tribunal properly considered the question of whether Companies House had directly been responsible for any acts of discrimination against Mr Willie in the selection; or alternatively, whether Companies House were vicariously liable on the basis that the interview panel that had been composed of separate individuals was nevertheless acting as agents for Companies House in making the selection.

6	The first of those issues was the subject of a finding by the Tribunal which considered the case in February and April 2000 when they found, as a fact, that Companies House had not, themselves, made the selection.  The interview panel had done that: Companies House had merely provided the two candidates, who were in fact the only two applicants for the post, and made them both available for interview, and had been willing to second whichever one of them was chosen by the panel.  Miss Monaghan says that on that aspect, the Tribunal misdirected themselves by taking too narrow a view of the part which Companies House itself played in the selection process.  

7	Alternatively, she says that the Tribunal erred in failing to admit an alternative basis of claim against Companies House that the interview panel were acting as agents for Companies House and it is therefore vicariously liable, under the terms of the Race Relations Act.  

8	It is not necessary for us to go into any more detail of the issues of the case, other than to say that we are satisfied that there are questions here that merit a full hearing before the Employment Appeal Tribunal which we accordingly direct.  

9	The principal, most cogent issue appears to us to be whether the Tribunal, arguably, erred in failing to address, with or without formal amendment of the Originating Application, the question of whether Companies House were liable vicariously for the actual selection made by the separate interview panel.

10	On that footing, we will direct a full hearing of this appeal before the Employment Appeal Tribunal.  Listing Category B, because this vicarious liability point may affect other cases, time estimate for the hearing - half a day, the Appellant’s solicitors to notify the EAT Listing Office if a longer time is likely to be needed.  

11	We further direct Skeleton Arguments to be exchanged between the parties in the usual way, and lodged with the Employment Appeal Tribunal office not later than 14 days before the date fixed for the hearing.  We do not envisage it to be necessary to direct that the Chairman be asked for any notes of the hearing. And that leaves the position of whether there are any modifications it would be convenient to make in the grounds, as stated in the Notice of Appeal, which we have got on pages 2 - 3 of the file. 
[The Court heard argument on the form of the Grounds of Appeal]

12	Having heard Miss Monaghan we will therefore direct that the appeal should go forward on grounds 6 a, c, and e only - e to be modified in accordance with a small modification that has been canvassed with Miss Monaghan in argument so as to assert that the Tribunal erred in failing to address the issue of agency.  We will give liberty to lodge an amended Notice of Appeal accordingly within 14 days of today, the responsibility for that being on the Appellant’s solicitors.  We do not see any ground for allowing the appeal to go further on the grounds stated in 6b and 6d, of the original Notice of Appeal so we formally dismiss the appeal as regard those separate grounds at this stage, to clear up the proceedings, so that those do not have to go any further.