DR A DOSHOKI v DRAEGER LTD [2001] UKEAT 0939_01_1009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0939_01_1009Case No Appeal No. EAT/0939/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A DOSHOKIAPPELLANTDRAEGER LTDRESPONDENT
Before
MISS RECORDER SLADE QCDR D GRIEVES CBEMRS T A MARSLANDDate 10 September 2001
[1]APPEARANCES For the Appellant DR A DOSHOKI (The Appellant in person) MISS RECORDER SLADE QC This appeal is before us on a Preliminary Hearing in order to ascertain whether the grounds of appeal contain any arguable point of law. We will give a short judgment, the reason for which will become apparent.[2]Dr Doshoki appeals against a decision of an Employment Tribunal on 22 June 2001, entered in the register on 5 July 2001. That Employment Tribunal was conducting a hearing to determine whether certain remarks had been made to the Applicant by employees of the Respondent and whether those remarks constituted direct race discrimination.[3]The Tribunal was conducting this hearing pursuant to an order of the Employment Appeal Tribunal on 24 November 2000 which heard the full appeal against a decision of another Employment Tribunal which had dismissed Dr Doshoki's complaints of victimisation and of race discrimination. The Employment Appeal Tribunal on 24 November 2000 dismissed Dr Doshoki's appeal against the dismissal of his claim of victimisation but allowed the appeal against the dismissal of his claim for race discrimination and remitted it to a Tribunal for hearing against whose decision he now appeals.[4]The Notice of Appeal before us challenges the amount of compensation awarded by the Tribunal on the remitted hearing which had concluded that the employers had been guilty of race discrimination. The basis upon which the Employment Tribunal concluded that there had been race discrimination was that racist remarks and names were made and called to Dr Doshoki. The Notice of Appeal also challenges the decision of the Employment Tribunal in:
"….. not drawing the conclusion of victimisation after having found the respondents discriminated against the appellant."
[5]We deal first with the ground of appeal relating to victimisation. The decision of the Employment Tribunal which is currently challenged on appeal was not concerned with the claim of victimisation at all. That complaint had been disposed of finally by the decision of the Employment Appeal Tribunal on 24 November 2000. It was not within the remit of the Employment Tribunal on 22 June 2001 to consider a complaint of victimisation. It was correct not to do so. Accordingly we dismiss the appeal insofar as it relates to the complaint that the Tribunal should have considered and made a finding of victimisation in Dr Doshoki's case. The correct course of action would have been to seek permission to appeal against the decision of 24 November 2000 of the Employment Appeal Tribunal insofar as that decision dismissed the appeal relating to victimisation.[6]Turning now to the appeal against the award of compensation made by the Employment Tribunal. At paragraph 14 of their decision it stated:
"Having reached this decision [that is the finding of race discrimination] and in view of the then time, the Tribunal went on to consider the question of compensation without requesting further comment from the parties."
The Tribunal then went on to deal with the basis upon which it made its award. The Tribunal, in particular, stated that it ignored the other matters such as losing his job about which Dr Doshoki complained and confined itself to assessing compensation on the basis of the injury to feelings caused by the name calling which they found to be racially discriminatory. The Employment Tribunal made an award of £750.[7]In our view the Notice of Appeal and skeleton argument raise two grounds of appeal against the approach of this Tribunal to the award of compensation. First, it seems to us, that it is arguable that the Tribunal acted in breach of natural justice in considering the question of compensation without requesting further comments from the parties. We consider that that is an arguable point of law and should proceed to a Full Hearing.[8]Further, it is said, that the award of compensation was perversely low. A number of arguments are deployed in support of that position. Amongst those arguments are, that the amount was perversely low, bearing in mind that the insults which were found to have been racial, were not isolated but repeated on a number of occasions and in public. It is also said that the amount was perversely low because the Tribunal wrongly excluded from its considerations the effect on Dr Doshoki of the racial insults on him and in particular on his performance. In our judgment, again, the arguments on perversity, in particular the first one mentioned, are such as merit consideration at a Full Hearing. Therefore we permit that basis for attacking the award of compensation to go forward to a Full Hearing as well.[9]In summary, insofar as the Notice of Appeal raises complaints about the Tribunal's failure to deal with the victimisation complaint, we dismiss such appeal. However, we permit the appeal against the award of compensation to proceed to a Full Hearing. Listing category and directions - so far as directions are concerned, skeleton arguments to be exchanged and lodged not less than 14 days before the date of the hearing, listing category C, time estimate, I would have thought ½ a day. Dr Doshoki, do you have any strong views on how long this appeal will take? I would think ½ day.