Ali v Pindersfields Hospitals NHS Trust [1997] UKEAT 184_97_1104

EAT

Ali v Pindersfields Hospitals NHS Trust

[1997] UKEAT 184_97_1104 · 1997-04-11

MR JUSTICE MORISON (PRESIDENT): Mr Ali: We have considered this matter. We consider that there is a point of law which is arguable in relation to your prospective appeal, and I am going to indicate what that point of law is for the future reference of the Employment Appeal Tribunal. Under Section 47(10) of the Race Relations Act 1976 it is provided that:

"47(10) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings; but in any proceedings under this Act before an industrial tribunal any code of practice issued under this section shall be admissible in evidence, and if any provision of such a code appears to the tribunal to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."

The Commission for Racial Equality have produced a Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment, in 1983. It seems to us distinctly arguable that paragraph 1(13) of the Code, which is headed "Selection Criteria and Tests" is of relevance and 1(14) headed "Treatment of Applicants Short-Listing, Interviewing and Selection", is also relevant. It is to be observed that nowhere in the Industrial Tribunal's decision has any reference been made, so far as we are concerned, to the Code of Practice, or to the fact that there may have been breaches of it.

Accordingly, it seems to us that it is arguable that the Industrial Tribunal have erred in law in failing properly to direct their minds to this very important question, which might have led them to arrive at a different conclusion.

It seems to us as well that, although you have not been disadvantaged this morning by being unrepresented, it would be of assistance to this Court if you were to receive representation for the full hearing, because you have acknowledged that you do not have legal experience and you recognise that we are dealing with points of law, and I would respectfully invite you to approach the Commission for Racial Equality to see if they will arrange for representation at the hearing of the appeal and you can indicate to them that the President of the Employment Appeal Tribunal has expressed the view that it would be of assistance to the Court were you to be given such representation, assuming that that fell within their discretion.