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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butt v Home Department [2002] EWCA Civ 783 (26 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/783.html Cite as: [2002] EWCA Civ 783

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Friday 26 April 2002

Friday 26 April 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, Maurice Kay J presiding, of 18 December 2001. The EAT allowed in part an appeal by the Home Office against a decision of an Employment Tribunal, held at Leeds, whose judgment was given on 4 August 2000.
2. The applicant, Mr SA Butt, had complained to the Employment Tribunal about racial discrimination and victimisation to which he claims to have been subject in the course of his employment with the Home Office. He had worked with the Drugs Prevention Initiative, based in Bradford, beginning in October 1991. There were organisational changes which resulted in fresh appointments being made within the Home Office organisation and the complaints arose out of Mr Butt's treatment in the course of 1998 and 1999.
3. The Employment Tribunal made six findings, and did so unanimously. Of those, three were adverse to the applicant and three in his favour. It was against those in his favour that the Home Office appealed to the EAT. They allowed the Home Office appeal on one point and dismissed it on another. The point on which the EAT allowed the appeal was point 4, which is at page 17 of the bundle:

"That the Applicant's complaint that the Respondent discriminated against him by way of victimisation by reason of failing to send to him an Application Pack in respect of a position with DPAS is well-founded."

4. The DPAS is the Drugs Prevention Advisory Service, the successor body in the reorganisation to which I have referred, to the Drugs Prevention Initiative.
5. The successful appeal was based on an apparent discrepancy and inconsistency between finding 4, which I have just read, and finding 3, namely:
6. "That the Applicant's complaint that the Respondent discriminated against him on racial grounds by failing to send him an Application Pack in respect of a position with DPAS is not well-founded and that complaint is dismissed."
7. The parties were both represented by counsel before the EAT. The relevant reasoning is at paragraphs 12 and 13 of their decision (pages 6 and 7 of the bundle). The EAT cite first the Employment Tribunal's finding in relation to complaint 3, and then set against it the finding in relation to complaint 4.
8. The grounds of appeal are set out at paragraph 12 of the judgment. The applicant's counsel, Mr Mendes da Costas, attempted to explain the apparent incompatibility of the two passages considered. The passage in the Home Office's favour in the Employment Tribunal decision is in these terms:

"In the case of the Application Pack, a deliberate decision was made that the Pack would not be sent. Again, not without some hesitation, we have concluded that was not a matter of direct discrimination. The reason argued by the Respondent for the failure to send the Pack, namely the Applicant's request that no correspondence be sent to him, is one that the Tribunal can, and does, accept. Accordingly, the less favourable treatment which the Respondent concedes occurred was not on racial grounds, but by reason of the Respondent making a decision to comply with the Applicant's own request."

9. Having set out the conflicting submissions on inconsistency the EAT concluded (paragraph 13):

"We accept Mr Branchflower's submission [counsel for the Home Office] that the earlier part of the Extended Reasons found as a primary fact that the Home Office had not omitted to send the application pack for any reason attributabel to racial grounds, but for an entirely different and uncontaminated reason. In those circumstances, we have come to the conclusion that on this point, the Decision of the Employment Tribunal cannot stand. We shall leave, until a later stage, what ought now to follow from that Decision allowing the appeal on that point."

10. Mr Butt has supplied a very lengthy notice to this court. I have, however, identified with him the point which he seeks to take. That appears in page 3 of the document, at paragraph 8:

"It is further submitted that in the light of the finding of a perverse decision, it is reasonable in the interests of justice to expect the Employment Appeal Tribunal to remit the decision to a differently constituted Tribunal and that it is not unreasonable to assume that a single finding of perversity brings into question the whole decision of the said Employment Tribunal sitting in Leeds and that permission be granted to have the matter heard before the Court of Appeal with regards to:

i. The Employment Appeal Tribunal's finding in respect of the application pack

ii. The Employment Appeal Tribunal's decision not to remit the matter to a differently constituted Tribunal in Leeds."

11. Mr Butt has explained his point orally to me. He submits first that the EAT were wrong to reverse the decision on the point in question and, second, that even if they thought the decision of the Employment Tribunal on this point was wrong, they should have remitted the question to a differently-constituted Employment Tribunal for reconsideration.
12. I asked the applicant why all the other allegations included in his long notice had been put in, if his application was upon that narrow ground. What he submits is -- and it emerges from the paragraph that I have read -- that if the matter does go back on that point, he considers that the whole question of all his complaints should be reopened and the Employment Tribunal should conduct a new examination of all the issues which are set out in the notice. He seeks, by opening the door to the narrow issue to which I have referred, to open the door upon a complete rehearing of the allegations which he has made.
13. I take the application in stages. First, in my judgment it is not arguable that the decision of the Employment Appeal Tribunal upon the point at issue is erroneous in law. The point was properly canvassed before them by counsel. In my judgment they were entitled to hold that the Employment Tribunal had erred in law in making a finding in favour of the applicant on their point 4, having made a finding against him on point 3. The inconsistency amounted to an error of law. The EAT were entitled to find that there was an error of law and, moreover, in what was a well-documented case, they were entitled to reverse the decision rather than remit it. The Employment Tribunal, having made the plain finding they did on the earlier points, must have gone on to find against the applicant on point 4.
14. I only add that, even if I had taken a contrary view and found that it was arguable that the EAT had erred in law and that this court consequently remitted the matter with a view to the EAT remitting it to the Employment Tribunal, that would not have created the opportunity for the applicant to reopen the entire case. The appeal would have been confined to the narrow ground upon which the application to this court is now made. It seems to me extremely unlikely that the determination of that issue would have opened the door wide enough for the applicant to bring in all the other matters which he now seeks to argue.
15. Mr Butt has also submitted that there has been bias against him in the tribunals. His point in effect is, "Well, if they found against me there must be bias." I see no material whatever which indicates an arguable case of bias in either the Employment Tribunal or the Employment Appeal Tribunal. For the reasons I have given, this application is refused.
Application refused