Legal Updates

Employment Law – Racial Discrimination – Fair Trial – Tribunal Procedure

The case of Abegaze v Shrewsbury College of Arts and Technology [2009], involved a determination relating to racial discrimination. The employee in this case brought a claim for racial discrimination claiming that he had been discriminated against by his employer. The employee alleged that the employer did not appoint him as a lecturer in electrical/electronic engineering on grounds of race.

The employment tribunal decided to uphold his claim on 20 November 2000. A remedy hearing was scheduled to follow, however, the proceedings failed to make any progress.

It was accepted during the proceedings that the employee had been ill up until 2003. However, subsequently the delays to the proceedings were principally due to the failure of the employee to submit to an expert’s medical examination. Accordingly, the employer sought to have the remedy claim struck out due to the excessive delay to the proceedings.

The strike-out hearing then took place. During the hearing the tribunal held that the employee could not have been deemed to have actively pursued the remedy claim. Therefore, as a result of the delays that were caused, a fair trial was no longer a possibility.

The chairman in the hearing stated as follows:

”…It is going to be very difficult for the chairman to expunge [a preliminary view held by the previous tribunal of an unfavourable view of the claimant's damages claim] from his memory, and to ensure that, if this remedy hearing proceeds with two other lay members, to ensure that he does not try to influence those lay members”.

The employee appealed against this decision. The employee submitted that the tribunal had been erroneous in electing to strike out his claim. Furthermore, the employee argued that the tribunal had demonstrated bias, having already formed a preliminary view on the remedy claim.

The Employment Appeal Tribunal (“EAT”) dismissed the employee’s claim.

It was held that the tribunal in question had properly considered the issue as to whether the remedy claim should have been struck-out. Additionally, it was held that on the evidence that was presented, the tribunal had not demonstrated bias against the employee.

The claimant also appealed against this decision.

He presented the argument that the employment judge had been influenced by improper considerations when he reached the conclusion that a fair trial would not have been possible for the employer.

The appeal was allowed for the following reasons:

It was held that it was never an ideal situation where the composition of the tribunal hearing liability differed from the tribunal hearing remedies. However, any change in composition of a tribunal between those two stages did not lead to the question as to whether there could or could not be a fair trial.
The employee should not be prejudiced by the fact that the two original lay members in this case had retired. The judge should not have been able to rely on his lack of self-control to disadvantage the employee, but rather, it was held that in the event he was concerned that he would not be able to act properly, he should have excused himself from hearing the remedies case.
With regards to injury to the employee’s feelings, a tribunal would be entitled to conclude that there had been injury flowing from an unlawful discriminatory act, even if the tribunal in question rejected the employee's exaggerated claim.

Accordingly, and considering the circumstances of the case, the approach as used by the tribunal was not justified in striking out the claim. This was due to the fact that it could not be said that a fair trial could not take place. As a result, the matter would be remitted to the EAT for further determination as to the appropriate steps to be taken.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.