(1) The Appellants are Keble College and Roger Boden of Keble College, Parks Road, Oxford OX1 3PG.
(2) Any communication relating to this appeal may be sent to the Appellants' solicitors, Clifford Chance LLP, 10 Upper Bank Street, Canary Wharf, London E14 5JJ, telephone 020 7006 1000, fax 020 7006 5555, reference JMS/RLD.
(3) The Appellants appeal against a Judgment of an Employment Tribunal sitting in Reading which was sent to the parties, with reasons, on 4 April 2005.
(4) The party to the proceedings before the Employment Tribunal, other than the Appellant, was Mr Diamond Versi of XXXXXX, Oxfordshire, represented Darbys Solicitors, 52 New Inn, Hall Street, Oxford OX1 2QD.
(5) A copy of the Employment Tribunal's Judgment with reasons are attached to this Notice, together with the original claim and response.
The grounds upon which this appeal is brought are set out below.
1. The Tribunal failed properly to consider:
(a) That the decision to make the Claimant's position redundant was taken by the Finance Committee rather than Mr Boden; (b) That the decision to dismiss the Claimant was taken by the Finance Committee rather than Mr Boden; (c) Whether the decisions of the Finance Committee were themselves on grounds of race.
(b) That the decision to dismiss the Claimant was taken by the Finance Committee rather than Mr Boden;
(c) Whether the decisions of the Finance Committee were themselves on grounds of race.
2. In paragraph 27, the Tribunal found that "There was abundant evidence that in the main the Bursar with prior lobbying would generally prevail on issues before the Finance Committee." However,
(a) This does not address the specific and critical decisions set out in paragraphs 1(a) and (b) above; (b) In the alternative, the Tribunal erred in failing to set out the "abundant evidence" upon which it relied. It is the Appellants' position that there was no evidence for that finding.
(b) In the alternative, the Tribunal erred in failing to set out the "abundant evidence" upon which it relied. It is the Appellants' position that there was no evidence for that finding.
3. Furthermore, the Tribunal failed to set out the requirements of the Race Relations Act 1976 Parts I and II, referring only to s 54A on the burden of proof. [Note. In this regard, the Appellants are mindful of the decision of the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258, but respectfully reserves its position to argue in due course that the decision is incorrect.]
4. In its reasons, the Tribunal fails also to address what less favourable treatment the Claimant was subjected to and what detriment he suffered as a result. The Tribunal makes no reference to a comparator, whether hypothetical or otherwise (save in paragraph 26.11 dealing with the limited allegation set out therein).
5. The Tribunal does not set out the allegations upon which it was asked to make findings.
6. As a result, the Tribunal failed to consider at all a number of the Claimant's allegations (made in his application, repeated in his statement and in the written closing submissions made on his behalf), namely:
(a) Blocking off the Claimant in August 2000; (b) From November 2002 onwards, ordering the Claimant not to park his car in certain areas; (c) From February 2003 restricting the Claimant's internet and software access; (d) In June 2003 excluding the Claimant from administration of the College Ball; (e) In December 2003 excluding the Claimant from the topping out ceremony.
(b) From November 2002 onwards, ordering the Claimant not to park his car in certain areas;
(c) From February 2003 restricting the Claimant's internet and software access;
(d) In June 2003 excluding the Claimant from administration of the College Ball;
(e) In December 2003 excluding the Claimant from the topping out ceremony.
7. These failures meant that the Tribunal reached conclusions and drew conclusions (both as to events which occurred and the explanations for them) within a partial factual matrix. If the Tribunal rejected these allegations, it is unclear upon what basis it did so or why this played no part in the assessment of Mr Boden's motives for his actions, and in particular whether his actions were on grounds of the Claimant's race.
8. In paragraph 25.6 the Tribunal concluded that the redundancy process was a "sham". It failed to consider adequately or at all the evidence that the changes did in fact achieve a substantial annual saving and that the financial controller (the new role created from 2 former roles, including that of the Claimant) has in fact reduced her working week because of continued over-staffing in the accounts department.
9. The Tribunal failed to set out Mr Boden's explanation for the "level and nature of the investigation" (namely that this was suggested by the external Auditors) and took no or no adequate account of that explanation (see paragraph 26.3).
10. The Tribunal failed to set out Mr Boden's explanation for the difference in treatment between Mr Chaudhry and Mr Hardiman and took no or no adequate account of that explanation (see paragraphs 9, 26.5 and 26.18).
11. The Tribunal failed to take any or any adequate account of the fact that the Claimant and Mr Boden had worked at the College together for almost 10 years, and Mr Boden had been the Claimant's manager for 18 months, prior to difficulties arising, suggesting that Mr Boden's actions were not actuated by race.
12. The Tribunal failed to take any or any adequate account of the Appellants' explanation as to why the "college moved with speed to bring the matter to a conclusion following the meeting of the Finance Committee on 30 March 2004" (paragraph 28), namely that the health of the other person directly affected by this decision was suffering, the individual having cystic fibrosis and being one of Britain's longest surviving heart and lung transplant patients.
13. Moreover, the Tribunal made certain errors of fact:
(a) The sequence of events ignores a meeting on 21 November 2002 (the fact of that meeting not being in dispute). (b) In paragraph 8 the Tribunal finds that Mr Boden had informed the Claimant that a grievance would involve "some considerable work". It was the Claimant's own evidence that this was said by the Warden. (c) In paragraph 25.12 the Tribunal found that Mr Jenkinson did not take any note. He did: his note was in the Tribunal bundle. (d) In paragraph 26.4 the Tribunal found that the Claimant was excluded from project evaluation in February. In fact (as recorded in an email sent by the Claimant) his position was that "I am not suggesting that you should get me involved". (e) In paragraph 26.9 the Tribunal speculates about the arrangements for, and Mr Boden's involvement in, the College ball. There was no evidence for the Tribunal's view and no basis to cast doubt upon Mr Boden's own evidence. Whilst the Tribunal goes on to say that "it is impossible for the Tribunal to speculate as to whether the Bursar had a hand in the fact that the claimant was not invited" it clearly forms an unjustified adverse view against Mr Boden.
(b) In paragraph 8 the Tribunal finds that Mr Boden had informed the Claimant that a grievance would involve "some considerable work". It was the Claimant's own evidence that this was said by the Warden.
(c) In paragraph 25.12 the Tribunal found that Mr Jenkinson did not take any note. He did: his note was in the Tribunal bundle.
(d) In paragraph 26.4 the Tribunal found that the Claimant was excluded from project evaluation in February. In fact (as recorded in an email sent by the Claimant) his position was that "I am not suggesting that you should get me involved".
(e) In paragraph 26.9 the Tribunal speculates about the arrangements for, and Mr Boden's involvement in, the College ball. There was no evidence for the Tribunal's view and no basis to cast doubt upon Mr Boden's own evidence. Whilst the Tribunal goes on to say that "it is impossible for the Tribunal to speculate as to whether the Bursar had a hand in the fact that the claimant was not invited" it clearly forms an unjustified adverse view against Mr Boden.
14. In these circumstances, the Tribunal has erred in law in its approach to this case, both with respect to the claim for unfair dismissal and that for unlawful race discrimination.
15. The Appellants will invite this Appeal Tribunal to remit the matter to a differently constituted Tribunal for it to consider whether the Claimant was unfairly dismissed and unlawfully discriminated against.
Signed ....................................
Dated 13 May 2005
Clifford Chance LLP 10 Upper Bank Street Canary Wharf London E14 5JJ
t 020 7006 1000 f 020 7006 5555 dx 149120 Canary Wharf 3 ref JMS/RLD
Solicitors for the Appellants