Appeal No.	EAT/0987/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 January 2002

Before
MR RECORDER BURKE QC
MS S R CORBY
DR D GRIEVES CBE

LONDON BOROUGH OF EALING	APPELLANT

MR L RIHAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS H GREWAL
(Of Counsel)
Instructed by:
Mr C Wolfle
London Borough of Ealing
Corporate Resources Legal Services
Perceval House
14/16 Uxbridge Road
London W5 2HL	

MR RECORDER BURKE QC
1.	This is the preliminary hearing of an appeal by the London Borough of Ealing, the employers, against a decision of an Employment Tribunal sitting at Watford chaired by Mr Garnon promulgated on 3rd July of last year with Extended Reasons. The Tribunal decided in favour of the employee, Mr Rihal, upon his complaints that he had been the victim of race discrimination on the part of the employers by whom he was employed as a surveyor in their housing department. 

2.	Mr Rihal is a Sikh born in India but having lived for many years in this country and as the Tribunal find has a pronounced accent. In his Originating Application, dated 28th September 2000, Mr Rihal alleged that there was a pattern of discrimination going back to 1996. At a preliminary hearing a Tribunal, consisting of Mr Ryan sitting as Chairman alone, established the issues for the substantive hearing. They are set out at paragraph 12 of the decision and fall under six headings. They all relate, in so far as they are complaints of discrimination, to failures, on the one hand or another, to promote Mr Rihal or to give him the duties of a more senior appointment or to deal appropriately with his grievances in relation to those failures. That alleged sequence of events led ultimately to a rejection of a grievance on 11th July 2000 which was the only specific act on which Mr Rihal relied which fell within the three month time limit established by Section 68 of the Race Relations Act 1976. The Tribunal at the substantive hearing allowed an allegation relating to the handling of that grievance to be added to the list of issues to which we have referred. 

3.	It was the first task of the Tribunal at the substantive hearing to decide whether the complaints, other than that to which we have just referred, were in time, which on the basis of the prima facie three months period, they were not, whether they were part of a continuing course of conduct which was in dispute and, if not, whether it was just and equitable to allow those complaints which were not presented within the three months time limit to proceed. The Tribunal dealt with all of those matters together in one long paragraph, paragraph 7 of its decision. It decided that the time limit began to run upon receipt by Mr Rihal of a letter from the Director of Housing in July 2000. The employers, therefore, were in a position to assert that all that preceded that letter was out of time in so far as it had not occurred less than three months before the presentation of the Originating Application. The Tribunal went on to find however that there was a continuing course of conduct although it did not expressly say so. 

4.	The employers submit that the Tribunal’s decision that there was a continuing course of conduct was wrong in law. It is unnecessary for us to consider whether the employer’s submissions on that issue are or are not arguable at this preliminary stage. We say that because the Tribunal went on to decide, as an alternative ground for its conclusion that it should hear in substance all of the allegations of discrimination, because it was just and equitable for those allegations to be heard even if they were not part of a continuing course of conduct. 

5.	Ms Grewal, on behalf of the employers, attacks that conclusion. She attacks it on the ground that the Tribunal failed to consider, or properly to consider, the prejudice to the employers arising from the fact that the investigation proposed by the employee would require the employers to go back to 1996 in circumstances in which managers who could have dealt with the complaints had left and documents which could have been material were no longer in existence. 

6.	We do not regard the criticisms of the Tribunal’s decision that it was just and equitable to allow Mr Rihal’s complaints to proceed as arguable. The Tribunal in paragraph 7 set out its reasons for allowing the complaints which were prima facie out of time to proceed on the basis that it was just and equitable to do so. It stated the considerations on one side and the other and said that the case should be approached on the basis on the whole of the history. It specifically took into account both prejudice to the employers because of their inability to produce witnesses and their inability to produce documents. It dealt with both of those matters in terms in paragraph 7. It indicated that it was going to strike a balance by allowing the presentation by the employee of all the evidence that he thought relevant to his claim but in so far as the employers were unable to provide full explanations to direct points without reference to documents which they had destroyed, they would adopt an understanding approach to that explanation. 

7.	In our judgment, it is not arguable that the Tribunal, who as a factfinding body had the task and it was their task alone of finding the facts in this case, so found the facts and put the considerations together in their decision as to err in law; there is no arguable point of law in this part of the case; and in so far as the appeal is brought against the Tribunal allowing the Applicant to proceed on all his allegations, that part of the appeal cannot succeed and it is dismissed. 

8.	We now turn to the substantive decision. The Tribunal found in favour of the employee in respect of each of the allegations of discrimination as listed in paragraph 12(1) of the decision together with the additional allegation relating to the handling of the last grievance, to which we have already referred, with the exception of the matters set out at paragraph 12(1)(c) of the decision which were abandoned by the employee at some time during the hearing. 

9.	The submission broadly put before us on behalf of the employer is that the Tribunal did not, in reaching its conclusion, generally and individually in relation to each allegation properly apply the familiar principles in a direct discrimination claim, namely:- first of all considering whether the employers had treated the employee less favourably than they had treated or would have treated another person of a different racial group in the same or similar circumstances, secondly, only if the answer to the first question was affirmative, going on to consider whether there was a satisfactory explanation of that differential treatment and, thirdly, if there was an unsatisfactory explanation when considering whether the differential treatment arose on racial grounds. 

10.	We do not propose to go into detail in relation to each of the allegations. We are satisfied that, while the argument may be stronger in relation to some of the allegations than others, there is an arguable case in relation to this part of the employer appeal and that it should go forward for a full hearing. To give an example, much of the Tribunal’s decision is devoted to dealing with the allegations which appear at paragraph 12(1)(d) and (e) of the decision. They relate to an assimilation exercise which is, as we understand it, a form of restructuring which was carried out in the Housing Department in 1998. The point is taken that the Tribunal did not find, and that there was no evidence on which the Tribunal could find, that the employee had been treated differently from any other actual or notional comparator in the same or similar circumstances.

11.	We say nothing about the eventual prospects of success, but it does seem to us that it is arguable that the Tribunal may have erred in not approaching this case in that way in relation to the assimilation exercise. Similar arguments with variations are open in respect of the other complaints which the employee made which were upheld by the Tribunal.

12.	 For those brief reasons (and this being a preliminary hearing, we should and we propose to say no more) we do think tha t there is an arguable case in relation to this part of the decision of the Tribunal. Thus this appeal can go through to a full hearing, not in relation to the time point but in relation to the substantive points that are set out in the Notice of Appeal and in Ms Grewal’s extremely helpful skeleton argument. This case to be listed as category C with a time estimate of a day.