MR S O WILLIAMS v HM PRISON SERVICE [2001] UKEAT 1236_00_0502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1236_00_0502Case No Appeal No. EAT/1236/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S O WILLIAMSAPPELLANTHM PRISON SERVICERESPONDENT
Before
MR COMMISSIONER HOWELL QCMR B V FITZGERALD MBEMR D A C LAMBERTDate 5 February 2001
[1]APPEARANCES For the Appellant MR D TIYAMIYU (Representative) MR COMMISSIONER HOWELL QC : In this appeal Mr Sunday Oladele Williams seeks to have set aside as erroneous in law the decision of the Employment Tribunal sitting at London Central on 25 to 27 July 2000, the decision being set out in Extended Reasons sent to the parties on 16 August 2000.[2]The case before the Tribunal was a claim by Mr Williams against his employers, the Prison Service, that he had been the victim of racial discrimination, both direct and by way of victimisation in the way they had handled his attempts to obtain promotion to prison officer grade within their employment on two occasions, in particular in June and September 1999.[3]It is not necessary for the purposes of this judgment to go further into the facts. Suffice it to say that we are satisfied that Mr Williams' Notice of Appeal and the argument presented to us on his behalf by Mr Tiyamiyu have identified arguable points of law for saying that the decision of the Tribunal as incorporated in the Extended Reasons fell short of the standards required, at any rate in relation to the recording of findings of fact and the giving of reasons to explain the Tribunal's conclusion against the Applicant's case.[4]We have in particular been concerned at the arguable failure in the Tribunal's stated reasons to record sufficiently clear findings of fact and reasons in relation to the victimisation claim in paragraph 24, and the direct discrimination claims in their explanation in paragraphs 27 and 28 of the Extended Reasons.[5]Mr Tiyamiyu has urged on us that all the grounds of appeal contained in the Notice of Appeal at pages 2 and 3 of the appeal file should be allowed to go forward for full hearing. We have accepted those arguments in relation to paragraphs 2, 3 and 4 of the Notice of Appeal, as drafted, alleging misdirections by the Tribunal in the way they applied the victimisation provisions in the Race Relations Act 1976 and the Direct Discrimination Act 1976 (those are paragraphs 2 and 3) and in paragraph 4 that the contention that the Employment Tribunal erred in law in failing to give sufficient reasons for its decision, in particular in the ways we have already touched on.[6]As regards paragraphs 1, 5 and 6 of the grounds of appeal we do not consider that in their original form these are sufficient to warrant us directing that they should go forward to a full hearing of the Employment Appeal Tribunal as errors in law. However having heard Mr Tiyamiyu on the substance of the points he wishes to argue under those heads we think they can be included, in a somewhat re-focused form, in the issues to be considered at the full hearing[7]We will direct that those paragraphs should be put before the full Employment Appeal Tribunal in a modified form, which I will now dictate, and the terms of those can be incorporated in amended grounds of appeal which we will direct Mr Tiyamiyu, to lodge within 14 days after the transcript of this judgment is sent to him.[8]The modifications are that paragraph 1 under the heading "Comparators" should be amended to read: "1. The Tribunal erred in law in paragraph 26(i) of their Extended Reasons in failing to apply a consistent basis of comparison in accordance with the requirements of Section 3(4) Race Relations Act 1976 ".[9]For paragraph 5, which was originally titled "Error on the face of the record" should be substituted this wording: "5. The Tribunal erred in law in paragraph 27 of their Extended Reasons in failing to differentiate between the two questions of(1) whether as a matter of fact the Applicant had been less favourably treated than a proper comparator and(2) whether it should be inferred that any such less favourable treatment was on racial grounds".[10]Finally, paragraph 6, originally headed "Perversity" should be amended so as to read:
"6. The Tribunal erred in law in paragraph 19 of their Extended Reasons in failing to make a specific finding whether the Applicant had in fact failed the 'sift criteria' set out in Order 8100, to which they referred, and whether the additional condition in paragraph 5.4.6, which they quoted, genuinely formed part of those 'sift criteria'."
[11]As Mr Tiyamiyu confirms he is content with those modifications, we will direct that the Notice of Appeal should go forward in that amended form to a full hearing of this Employment Tribunal, listing Category C, estimated length of the hearing one day, skeleton arguments to be exchanged between the parties and lodged with the EAT office not later than 14 days before the date to be fixed for the full hearing. Mr Tiyamiyu is to lodge the amended notice of appeal within 14 days after the transcript of this judgment is sent to him, incorporating the above modifications. Note to MR COMMISSIONER HOWELL QC : As I was not sure what parts of this transcription you required I've typed all that was on tape. Iris 12/03/2001