Williams v HM PRISON Service
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL |
| Judgment Date | 03 May 2002 |
| Neutral Citation | [2002] EWCA Civ 809 |
| Docket Number | No A1/2002/0778 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 2002 |
[2002] EWCA Civ 809
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
No A1/2002/0778
The Applicant appeared in person
The Respondent was not represented and did not attend
This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, dated 7th February 2002, His Honour Judge Wilkie QC presiding. The Employment Appeal Tribunal dismissed an appeal against a decision of an employment tribunal dated 16th August 2000. The tribunal was held at London Central, Mrs R S Martin presiding. Its unanimous decision was that the applicant, Mr S O Williams, had not been discriminated against contrary to the Race Relations Act 1976. A review of that decision was requested and was refused by the chairman on 22nd September 2000.
The applicant, Mr Sunday Williams, who is Nigerian and of black African origin, is employed by the respondents, HM Prison Service, at operation support grade level. At the time of the tribunal's decision he was working at Holloway Prison. He made complaints of racial discrimination, which I will cite from the extended reasons of the tribunal:
"(i) Mr Williams complains that he was discriminated against on racial grounds when he took part in but failed an assessment process at Birmingham Prison on 14th June 1999;
(ii) Mr Williams also complains of similar discrimination when he failed the 'sift' criteria on applying of a post as a prison officer at Highpoint Prison in September 1999;
(iii) Mr Williams further complains that he was victimised within section 4 of the Race Relations Act 1976 in respect of (ii) above, since he had lodged an originating application in respect of (i) above on 18 September 1999."
At the hearing before the Employment Tribunal the applicant was represented by counsel, and gave evidence on his own behalf. Before the Employment Appeal Tribunal he was represented by his cousin Mr Tiyamiyu who has, with the leave of the court, made the application orally this morning. Mr Tiyamiyu has legal training, and tells me he hopes to be on the Bar Vocational course starting in the autumn. He has prepared a helpful skeleton argument, has addressed the court forcefully and made sustained submissions which have taken one hour.
Both the extended reasons of the Employment Tribunal and the reasons of the Employment Appeal Tribunal are carefully and conscientiously set out. The Employment Appeal Tribunal have dealt with the points of law which were sought to be made on behalf of the applicant save for one point with which, it is claimed, they did not deal and to which I will refer.
I agree with the reasoning of the Employment Appeal Tribunal. They have considered the points of law arising. This is, in effect, a second appeal though not so defined in the rules, in that a tribunal with a circuit judge presiding has considered the points of law upon which the claim is based.
I set out the six points which the applicant seeks to make as they appear in the skeleton argument. (1) The tribunal erred by failing to give full reasons so as to explain why the appellant lost his complaints of discrimination ( Lindsay v Alliance & Leicester plc [2000] ICR 1234. Reliance is placed on paragraph 41 where a judgment of Lord Justice Balcombe in Hampson v Department of Education and Science [1989] ICR 179 is set out. (2) The tribunal erred by failing to answer the question posed by Section 2 of the Race Relations Act 1976 before dismissing the appellant's victimisation claim. (3) The tribunal erred by failing to answer the question posed by Section 1 (1) (a) of the Race Relations Act 1976 before dismissing the appellant's claim of race discrimination. (4) The tribunal erred in law in failing to make a specific finding whether Mr Williams had in fact failed the sift criteria. (5) The tribunal erred in failing to adopt a proper legal analysis when deciding the appellant's complaint of racial discrimination. (6) The tribunal erred in law in failing to apply a consistent basis to the facts in accordance with the requirements of Section 3 (4) of the Race Relations Act 1976.
Having expressed my agreement with the reasoning of the Employment Appeal Tribunal, I refer to the points which Mr Tiyamiyu has emphasised orally. He relies upon the decision of this court in Balamoody v United Kingdom Central Council for Nursing [2002] IRLR 288. I have been supplied with a copy of that report. Mr Tiyamiyu has set out in his skeleton argument the two paragraphs on which he relies. The point was before the Employment Appeal Tribunal. At paragraph 57 Lord Justice Ward stated:
"The crucial question in this appeal is whether or not it was necessary, on the particular facts and in the circumstances of this case, to require a hypothetical comparator. That, in my judgment, is a matter of law because it goes to the manner in which the tribunal is to approach a case. If a hypothetical comparator is required and the tribunal does not direct itself to the need for that control group against which to test the discriminatory treatment, then the tribunal would err in principle. It would not simply be an error in the exercise of discretion."
It is submitted that the tribunal did not take a hypothetical comparator as they should have done.
Mr Tiyamiyu addressed me, first, upon the JSAC assessment at Birmingham which the Employment Tribunal dealt with at paragraphs 5 to 18 of their extended reasons. The tribunal considered the fairness of the procedure and whether it had been complied with. They considered whether the assessment of the applicant had been carried out according to the internal guidelines set out. Reference was made to the assessment of Mr Smith and the tribunal dealt with that. The applicant failed the assessment. The tribunal held that the finding was not an unreasonable finding. Moreover—and this is the point in the case—they have explained in detail that it was not, in their judgment, as the tribunal of fact put it —
"neither has found any evidence of racial bias in the JSAC assessment procedure."
I do not consider that the point raised in Balamoody and in earlier cases provides an arguable basis for appeal in...
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