Appeal No.	 EAT/1218/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 February 1999

Before
HIS HONOUR JUDGE PETER CLARK
LORD  DAVIES OF COITY  CBE
MRS D M PALMER

MS D. CYRUS	APPELLANT

THE SECRETARY OF STATE FOR EDUCATION & EMPLOYMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D TATTON-BROWN
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

	JUDGE PETER CLARK:	The Appellant, Ms Cyrus, who is of Afro-Caribbean origin has been employed by the Respondents since 14 November 1989.  She remains in that employment, although she has been unfit for work on medical grounds since 6 August 1997.

	She was employed at the Employment Service Job Centre at High Wycombe.  On 3 June 1997 she wrote to her Personnel Manager complaining of bullying, racial discrimination and harassment by her business manager.  An investigation into those allegations was commenced and from 31 July 1997 she was directed to report for work at the Maidenhead office pending the outcome of that investigation.  She did report for work at Maidenhead, but contends that she was there subjected to victimisation leading to her suffering stress causing her to go off work on 6 August.

	On 14 August 1997 she presented an Originating Application to the Tribunal complaining of breach of contract, discrimination and victimisation.  She also referred to industrial injury.

	The complaint was heard by a Tribunal sitting at Reading on 10 July 1998.  It was dismissed for reasons given with a decision dated 21 July.   Against that decision she now appeals.

	We confess to having had some difficulty in understanding the Appellant’s grounds of appeal which she herself had formulated.  However, today we have had the benefit of submissions from Mr Tatton-Brown, who represents the Appellant under the ELAAS pro bono scheme.  He has raised three matters.

	First, he expressly abandons any argument under the Disability Discrimination Act 1995.  That is a proper concession.  No such claim was advanced below.  It cannot be taken before the Appeal Tribunal for the first time now.

	Secondly, he refers to the Tribunal’s findings at paragraph 9 of their reasons that in transferring the Appellant to Maidenhead, rather than transferring those in the High Wycombe office against whom the Appellant’s allegations of racial harassment were made, the Respondents, and in particular Mr Humphrey, were not racially motivated.  On the basis of those findings, among others,  the Tribunal concluded that the Appellant had not made our her complaint of racial discrimination.

	Mr Tatton-Brown submits on the authority of the Crown v Commission for Racial Equality Ex Parte Westminster City Council [1984] IRLR 230, Woolf J and, in the sister field of sex discrimination, Jones v Eastleigh Borough Council [1990] 2AC 751, that in a case of direct racial discrimination motive is irrelevant.  What the Tribunal ought to have directed themselves to was the well known guidance of Neill LJ in King v Great Britain China Centre [1992] ICR 516, approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, namely, was there a difference in treatment between the Appellant and an actual or hypothetical comparator; was there a difference in race; if so, has the Respondent provided an adequate explanation for that difference in treatment, if not, should an adverse inference of unlawful discrimination be drawn against the Respondent?

	It seems to us that that raises an arguable point which ought to go forward to a full appeal hearing.  For the avoidance of doubt, Mr Tatton-Brown has made it clear that it is not his submission that any separate ground of appeal arises in relation to a complaint of victimisation, accordingly the matter will not proceed in relation to victimisation.

	Finally, Mr Tatton-Brown contended that the Tribunal had failed to adjudicate on the Appellant’s claim for breach of contract, the breach alleged being that contrary to the Respondent’s rules, paragraph 23(d), provision was made for transferring a person accused of harassment only, not the complainant.

	However, we pointed out that under Article 3(c) of the Employment Tribunal Extension of Jurisdiction order 1994, the Tribunal’s jurisdiction to entertain complaints of breach of contract is limited to cases where the claim arises or is outstanding on the termination of employment.  Here, the Appellant has remained in the Respondent’s employment throughout.  Consequently the Tribunal had no jurisdiction to entertain the breach of contract complaint.

	Mr Tatton-Brown accepted that this is the position.  As a result we shall not permit that point to proceed to a full hearing.

	In the event, we shall allow the matter to proceed only on the question of Tribunal’s self direction as to direct racial discrimination.  For that purpose we give the following directions. First, the Appellant is to lodge amended grounds of appeal limited to the single point which we have identified in this judgment within 14 days, marked for my attention, I shall then consider granting leave to amend.  All existing grounds of appeal are dismissed.  The case will be listed for half a day, category C, there will be exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged at the same time with this Tribunal.  There are no further directions.