Employment tribunal appeal

[psychojuice]

mariefab going back to one of my previous points, given that the EJ did not allow me to submit my written submission, can I request of the ET that it hears my case again, due to not following the correct ET procedure and putting me at a disadvantage?


Also has the EJ erred in law by accepting that the respondent cannot be responsible for RD if they have hired a person who describes themselves as Asian-other? Which they say proved that the respondent cannot be racist towards someone who is of say Chinese origin?

If not, could you help me to better understand examples of errors in law and how to apply them to my case?

[mariefab]

mariefab going back to one of my previous points, given that the EJ did not allow me to submit my written submission, can I request of the ET that it hears my case again, due to not following the correct ET procedure and putting me at a disadvantage?


Also has the EJ erred in law by accepting that the respondent cannot be responsible for RD if they have hired a person who describes themselves as Asian-other? Which they say proved that the respondent cannot be racist towards someone who is of say Chinese origin?

If not, could you help me to better understand examples of errors in law and how to apply them to my case?

No. There's no procedural rule that an ET must accept written submissions. You had a written submission ready. You could have read it aloud so I don't see a disadvantage.

No, that's not an error in law. See 9(4) below.

https://www.legislation.gov.uk/ukpga/2010/15/section/9

On the information you've provided I can't see any errors of law in your case.
An example of an error in law would be if the ET said that you needed concrete proof of discriminatory acts to make a prima facie case.

I don't know whether you fully appreciate that, in your case, the respondent was never actually in the position of having to provide a defence to your claim.
What happened at the ET was that, because the onus was solely on you to establish a prima facie case, all the the Respondent had to do was comment, if they wished to so do, on any of the issues you raised.
If you had established a prima facie case the burden of proof would then have shifted to the Respondent and only at that point they would have needed to provide a defence.

[psychojuice]

mariefab so if a prima facie case is not shown, the ET can still.go.to the second part to prove discrimination. So if the ET are able to do that, what's the point of showing a prima facie case?

[mariefab]

mariefab so if a prima facie case is not shown, the ET can still.go.to the second part to prove discrimination. So if the ET are able to do that, what's the point of showing a prima facie case?

No, the opposite.
If a prima facie case is not shown the ET cannot go to the second part.

[psychojuice]

What about Hewage v Grampian health board?

[mariefab]

What about it? It confirmed that the claimant has to prove facts from which discrimination could be inferred to establish a prima facie case.
In that particular case the the clear detrimental differences in treatment between the claimant and her white male comparators cried out for an explanation.

[psychojuice]

What about it? It confirmed that the claimant has to prove facts from which discrimination could be inferred to establish a prima facie case.
In that particular case the the clear detrimental differences in treatment between the claimant and her white male comparators cried out for an explanation.

Sorry I must have misunderstood it. I thought that it meant that when the evidence is clear cut (unlike mine) the ET can go straight to part two of the test. Sorry, I wasn't questioning your knowledge!

[psychojuice]

4. a. You start with what happened.
e.g. Low overall score, your communication score, the unsatisfactory way your feedback requests were dealt with, alleged lies from Mr Taylor, you weren't awarded the higher paid role.

b. Next, you show that you were treated less favourably than candidates of a different race.
e.g. others scored higher, their feedback requests were dealt with better, they weren't lied to, a white person was awarded the higher paid role.

c. Then you have to show something more. It doesn't have to be much. Just something from which the Tribunal could infer that the reason for the difference between 1 and 2 could have been race.
Specifically race. Not something that could just as easily be due to sex, religion, age etc.
It doesn't have to be much, perhaps something as simple as being asked at interview which country you were born in and/or the interviewer seeming surprised that you were born here.

If you don't show all 3, and particularly c, you will not establish a prima facie case.

mariefab could you give me anymore examples where EJs have inferred race discrimination (like point c above)? I feel I need to ask the EJ to reconsider, as I believe I have shown a prima facie case, but I did not explain it well enough and perhaps the ET missed my points.

[mariefab]

By laying it out as a, b and c like that I may have misled you into thinking that c is a completely separate exercise that requires evidence that is not included in or related to a or b. If so, I apologise.
Perhaps it would have been better if I'd said that you should scrutinise what you have in a and b to try to find c.

How you explained it shouldn't matter. You either showed a prima facie case or you didn't. You won't get a second chance to explain it better.

You have received the Judgement. Did it include written reasons for the Tribunal's decision?
If so, you could post it here so that we can see why they decided the way they did and if there's any scope for an appeal.

I might be able to find you some examples but they may not help your particular case. The Judgement might provide some direction here.

[psychojuice]

mariefab I'll refrain from putting the decision on here, as I'd like to keep my privacy (despite it being available online).


1. Also, is there any obligation with the respondent to swap skeletal arguments before the start of the ET? My understanding that both sides must lay out their arguments beforehand, so that any questions will be of no surprise to either side- is that right?

2. Are there any technicalities that have been used successfully in the past, for the case to be reheard? My decision has the wrong date at the bottom of each page- I know it is petty, but I will use anything to get another chance!

[mariefab]

1. No, the purpose of a skeleton argument is to assist the Tribunal by briefly setting out the arguments that the party intends to rely on in the proceedings.

2. There are only 2 grounds for appeal. An error of law or perversity.

[psychojuice]

1. No, the purpose of a skeleton argument is to assist the Tribunal by briefly setting out the arguments that the party intends to rely on in the proceedings.

2. There are only 2 grounds for appeal. An error of law or perversity.

Is it not the case that I should have been furnished with the respondent's case in full, so that I was not surprised by any of the questions (which in some I was)!

[mariefab]

No.
Their ET3 would have given you a broad idea of their possible arguments. But they are not required to fully inform you of how they intend to proceed. Just as your ET1 would have given them a broad idea of your possible arguments. But you were not required to fully inform them of how you intended to present your claim at the hearing.
You brought the case so basically it's down to you to anticipate and prepare for all the Respondents potential arguments.

[psychojuice]

mariefab Ula I am looking to appeal on the following 4 points. Could you please tell me whether they fall under error in law, or perversity?

1. During my questioning of a witness, counsel for the respondent pulled shocked expression towards the my witness [shown in the ET decision]. This had the effect of communicating with the witness to not answer my question [my opinion]. This had a huge impact on the outcome of the ET [my opinion]

2. The tribunal decision stated that they accepted that although written interview notes were short, they were still able to score my interview properly [ET decision]. However they ignored my evidence which I presented during cross examination, which was that the respondent's own guidelines for interviewing [my opinion]. It states that an interviewer should write down 70% of answers verbatim [fact- shown in ET bundle]. The EJ has ignored this point and basically overridden the respondent's own guidelines and imposed it's own view [my opinion].

3. EJ states respondent's witnesses were clear, consistent and measured [in ET decision]. However I am able to prove from my notes that one witness contradicted himself numerous time (therefore not consistent) and one other witness started to cry, presumably because she felt so guilty (therefore not measured). I accept this is probably not a strong point.

4. Witness X stated that he was unable to give me a top score for some of my interview answers, because I did not explain ABC [shown in ET decision]. Under cross examination witness X accepted that in fact I did explain ABC [I can prove this from my written notes]. I should therefore have been given full marks [the witnesses opinion]. However the ET decision states that they accept the scores given and that the reasons for this was ABC (as initially stated by witness x). They appear to have ignored my cross examination questions and witness X's acceptance that I did in fact give enough evidence to get full marks. On the next paragraph in the ET decision, it states that because of the reasons given, they accept that no race discrimination could have occured consciously or unconsciously! I believe they have overlooked a clear example of unconscious discrimination.

Could you let me know your thoughts and maybe help reword the points above to make maximum impact?

Many thanks as always.

[mariefab]

1. Neither. Even if Respondent's Counsel had stepped in and instructed the witness not to answer this wouldn't be a ground for appeal.
Just because I'm nosy, what was your question?

3. Neither. When the Tribunal describes witnesses it does so in general rather than in detail.

2 & 4 are about findings of fact. Therefore they can only be relevant to a potential perversity challenge.

2. Do you have the rest of the candidates interview notes?
Only if they all have 70% of the candidate's answers written verbatim could this point amount to one element of a potential perversity case.

4. Did you have just one interviewer? If not, did the others give you full marks on ABC?
Did witness x accept that he had made a mistake?

Perversity challenges rarely succeed. You'd have to show that, based on the facts shown, no reasonable Tribunal could possibly come to the same decision. So, unless point 4 was presented as the fundamental matter on which your entire claim relied this wouldn't be sufficient for a perversity challenge.