1) MR A CARTER 2) MR S CARTER v STAKIS PLC & OTHERS [2001] UKEAT 1016_99_1005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1016_99_1005Case No Appeal No. EAT/1016/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) MR A CARTER 2) MR S CARTERAPPELLANTSTAKIS PLC & OTHERSRESPONDENT
Before
HER HONOURABLE JUDGE A WAKEFIELDMR K EDMONDSON JPMR K M YOUNG CBEDate 10 May 2001
[1]APPEARANCES For the Appellant MR MANJIT PANESAR (Of Counsel) Instructed by Aston Legal Centre 29 Trinity Road Aston Birmingham B6 6AJ For the Respondent MR SAM NEAMAN (Of Counsel) Instructed by Messrs Jones & Warner Solicitors 60 Lombard Street London EC3V 9EA JUDGE WAKEFIELD This is an appeal by Mr Anthony Carter and Mr Sam Carter against the decision of an Employment Tribunal sitting at Birmingham which, with extended reasons, was dated 12 July 1999 whereby the Appellants' applications alleging race discrimination and victimisation were all dismissed.[2]By a decision of this Appeal Tribunal given on 23 October 2000, following an Ex Parte Preliminary hearing, the appeal was permitted to proceed to a full hearing on two grounds only. The first, as set out in paragraph 8 of the Appeal Tribunal's decision, is:
"whether the procedure adopted by the Tribunal in addressing the question of detriment as the first issue by itself at a substantive hearing had the effect, albeit unintentional, of excluding potentially relevant evidence which might have been deployed to show the effect on a reasonable black or ethnic minority employee of the incidents complained of as being more serious than might have appeared, looking at the particular incident in isolation, if one took into account the cumulative effect of earlier incidents and the general background of behaviour at the hotel."
[3]The second permitted ground as set out in paragraph 9 of that Employment Appeal Tribunal decision is that:
"the Tribunal may have failed to address adequately clearly in its extended reasons, the separate question of whether the cumulative effect of the various incidents, which viewed in isolation might not have been all that serious by themselves, together might have amounted to a detriment to a reasonable employee on the test expounded by Lord Justice May in De Souza 's case."
[4]Before us today Counsel for the Appellants has also argued that the decision of the Employment Tribunal was perverse. Although this was not a ground upon which this Appeal Tribunal expressly permitted the appeal to proceed in terms of the judgment at the Preliminary Hearing it is argued that it is always open on the hearing of an appeal for this Tribunal to consider perversity. Since however, we are able to deal with the appeal on the permitted grounds we do not feel it incumbent on us to comment on that argument.[5]The brief factual background to the appeal is as follows. The Appellants, who are brothers of Afro-Caribbean origin, were employed by the first Respondent from about September 1995 as part-time wine waiters at the Metropole Hotel, National Exhibition Centre in Birmingham. They each presented an originating application to the Employment Tribunal in August 1998 complaining of race discrimination by the first Respondent and some of its employees (the second to fifth Respondents) and they subsequently each presented a further originating application in January 1999 complaining of further acts of race discrimination and of victimisation against the same first Respondent and some of the other Respondents.[6]At a Preliminary Hearing at the Employment Tribunal it was determined, in a decision which we have not seen, that the complaints, of race discrimination were, by reason of time limits in bringing such complaints, to be limited to specific complaints from 6 June 1998 onwards. Any prior incidents could be referred to only by way of background. The four originating applications came on for a substantive hearing at the Employment Tribunal on 17 May 1999. What then occurred is set out in paragraph 4 of the Extended Reasons of the Employment Tribunal as given for dismissing all the applications. They said as follows:
"It was quite clear after reading the witness statements of the parties that whilst potentially racist comments had been allegedly made by the Respondent, none of these, with the exception of two matters (which we deal with below) were made directly to either of the Applicants. The Applicants are complaining largely of racist comments which they have overheard or allegedly reported to them by others. Apart from such comments, the only detriment that either of these Applicants could possibly have suffered was the complaint that their hours of work had been reduced after they had made a complaint to the Employment Tribunal, and were thus victimised. The Tribunal was therefore concerned at the very outset that the Applicants may not be able to established "detriment" which is an essential ingredient for a successful complaint of direct and indirect race discrimination. After giving an opportunity to both representatives making submissions on that point, the Tribunal decided to hold a preliminary Hearing on whether the Applicants had suffered any detriment. The evidence on this preliminary issue was heard over almost three days, with oral evidence from the two Applicants and Mr Simon Price, the Banqueting Services Manager at Stakis."
[7]The first ground of appeal was therefore concerned with the consequences to the Appellants, in terms of the evidence they were permitted to put before the Employment Tribunal, of that approach. In permitting the appeal to proceed on the ground which I have already read which was set out in paragraph 8 of the Employment Appeal Tribunal decision, that Tribunal went on in paragraphs 11 and 12 as follows:
"Further, so far as Counsel for the Appellants made this a separate ground of appeal, we are not satisfied that it was an error in its own right for the Tribunal to have determined that the issue of whether there was or was not detriment established on the facts of the particular case, should be dealt with as a separate issue at the start of the substantive hearing." (Paragraph 12) "
We further reject [Counsel for the Appellant's] submissions that the Tribunal erred in failing to give the parties some form of advanced warning if this was the procedure it intended to adopt. We regard that argument as of no substance: this was the substantive hearing of the whole appeal and the parties and their representatives should of course be prepared at the substantive hearing to deal with all the issues arising on the appeal from which this was plainly a highly important one. We are not satisfied that there is any disadvantage to an Applicant if the Tribunal decides that a particular issue, which it views as of importance should be dealt with first in advance of hearing the evidence which goes to other issues, which may only arise if that issue is decided in one particular way. The Applicants in this case were represented by a representative from a legal advice organisation and we consider it is for the representative in circumstances such as these, if he had felt at any disadvantage in presenting the parties' case on the issue addressed first by the Tribunal to have asked for an adjournment to enable him to prepare submissions on the basis of that issue alone: no adjournment was in fact sought in this case. We do not therefore think it is right or arguable that the Tribunal can be criticised for having proceeded with the hearing in the way that they did. This is not a case where a Tribunal has accepted a "submission of no case" at the half way point in a race discrimination case. This is a case where one substantive issue has been addressed in the round at the outset of the hearing in what appears to us a perfectly proper way since only if that issue was determined in favour of the Applicants, did any further issues in the case arise."[8]We do find those two paragraphs 11 and 12 somewhat difficult to reconcile with the permitted ground of appeal which I have already referred to in paragraph 8. We are therefore considering here the permitted ground in the literal terms of paragraph 8 and on the basis that while it was, as a matter of pure procedure, open to the Employment Tribunal to identify and then to hear the preliminary point even at the outset of the substantive hearing, it is a matter for us as to whether in all the circumstances of these applications and given the findings of the Employment Tribunal on the basis of evidence they then allowed to be given, the procedure adopted did have the effect set out in paragraph 8 of the Employment Appeal Tribunal decision.[9]We are satisfied that in approaching the hearing of the originating applications as they did the Employment Tribunal erred in law in that they prevented the Appellants giving full oral evidence on background pre June 1998 matters and made it unnecessary for the Respondents to put forward oral evidence of such matters, which evidence might have put the post-June 1998 complaints in a different context or in a different light.[10]While we accept the Respondents' argument before us today that the Employment Tribunal do say in paragraph 3 in their Extended Reasons that: "We take into consideration the allegations prior to 6 June 1998 by way of background only." it is clear from the Chairman's notes of evidence that such consideration was primarily on the basis of the documents only and that the Appellants were confined in giving their oral evidence, at least in chief, to the specific post-June 1998 complaints only. It is also apparent from the total absence of any further reference to such background matters in the remainder of the Employment Tribunal decision that little or no account was paid to them in terms of what the Appellants were alleging of a culture of race discrimination which was condoned or at least ignored by the employer. Viewed from a different point of view, we are concerned that by addressing the issue of detriment before determining, in terms of section 1 of the Race Relations Act 1976, the question of whether and if so in what circumstances the Appellants were treated less favourably on racial grounds, the Employment Tribunal unnecessarily and unfairly to the Appellants narrowed the scope of the evidence which they deemed relevant.[11]The Appeal therefore succeeds on the first ground and we do not feel it necessary to make any comments on the second ground. The case must be remitted to be heard by a fresh Employment Tribunal and we note that the Appellants have accepted that detriment does not exist in terms of loss of hours by either Appellant. So that will not be an issue when the matter is reheard at the Employment Tribunal.