(1) MR N KUMAR (2) MR T HUSSAIN v GRATTAN PLC [2000] UKEAT 1202_99_2401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1202_99_2401Case No Appeal No. EAT/1202/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR N KUMAR (2) MR T HUSSAINAPPELLANTGRATTAN PLCRESPONDENT
Before
Mr Justice Charles Mr P DawsonDate 24 January 2000
[1]APPEARANCES For the Appellants THE FIRST APPELLANT IN PERSON MR JUSTICE CHARLES : The parties to this appeal, which comes before us today by way of preliminary hearing, are a Mr Kumar and Mr Hussain, who were the applicants before the Employment Tribunal and are the appellants before us, and Grattan Plc. The appeal is against a decision of an Employment Tribunal sitting at Leeds. The Extended Reasons for which were sent to the parties on 10th August 1999.[2]The decision, which is the subject matter of the appeal, is the decision recorded in the second paragraph under the heading "DECISION" in the Extended Reasons, which is that:
"2. The unanimous decision of the Tribunal is that the complaints of race discrimination by both Applicants fail and are accordingly dismissed."
[3]The appellants have put in a handwritten Notice of Appeal. Paragraph 5 of that notice is in the following terms:
"The tribunal also failed to see that one of the comparators case was much more serious, that comparator intimidated one of his staff by coming in on the weekend, when he was not working but the girl (member of staff) that he sexually harassed was at work at that time. The same comparator sent third parties to ask that member of staff (girl) why she had made a complaint against him. The complaints against this comparator of sexual harassment were of a much more serious nature due to the fact that there was physical contact, he had pulled her towards himself and kissed her against her will."
[4]It appears from paragraph 16 of the Extended Reasons that at the centre of the reasoning of the Employment Tribunal was the fact that the intimidation alleged in respect of the appellants was the important distinguishing feature between the appellants and the cited comparators. The Tribunal say in paragraph 16:
"… It is the intimidation which is the important distinguishing feature between the Applicants and the cited comparators and it is that distinguishing feature which justified the Respondents dismissing the Applicants and disciplining and retaining the services of the comparators. …"
[5]It seems to us that the appropriate course for us to take is to direct that this preliminary hearing be adjourned for the period of 14 days to come on again in 14 days time as a preliminary hearing, if practicable, before a Tribunal chaired by me.[6]We will also direct that in that period and by Wednesday week (9th February 2000) the appellants do put in an affidavit or perhaps, as it now should be described, a sworn statement, setting out the evidence that they say was before the Employment Tribunal to the effect that one of the comparators was accused of intimidation or that a finding of intimidation had been made by the employer (or others) in respect of one of the comparators. If the position is that no such evidence was before the Employment Tribunal, the sworn statement should also explain why this was not the case.[7]It will then be for this Tribunal on the adjourned preliminary hearing to consider that statement and whether or not it founds an argument that the Employment Tribunal erred in law. On the adjourned hearing this Tribunal will also consider whether the other grounds raised in the Notice of Appeal raise reasonably arguable points of law.