England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 31st July 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal made by Samuel Kennedy Yeboah. He seeks permission to appeal from an order of the Employment Appeal Tribunal dated 16th May 2001. The tribunal had allowed an appeal from decisions of the Employment Tribunal sent to the parties on 1st September 1998.
2. I quote the first paragraph of the decision of the Employment Appeal Tribunal:

"This is the unanimous decision of the EAT in respect of the appeals by Mr Bernard Crofton former Director of Housing of the London Borough of Hackeny against findings made against him by the Industrial Employment Tribunal at London North in four applications sought against him by Mr Samuel Yeboah, former head of personnel services at Hackney."

3. I refer only to one decision of the Employment Tribunal, that in the case 55617 of 1994, the Tribunal stated "The unanimous decision of the Tribunal is that Mr Crofton discriminated against Mr Yeboah and that the London Borough of Hackney did not discriminate against Mr Yeboah."
4. Thus, the borough were also parties to some of the proceedings. Seven cases were heard together by the Employment Tribunal and the total hearing was for over one hundred days. We are told it is one of the very longest hearings since employment tribunals were set up.
5. The hearing before the Employment Appeal Tribunal at which Burton J presided lasted for 12 days. Neither party was represented before the Employment Appeal Tribunal. Before the Employment Tribunal Mr Crofton appeared in person. Mr Yeboah was represented by Miss Monaghan of counsel who also represents him at today's application.
6. Having heard the submissions of Miss Monaghan and those of Mr Crofton who appears in person, in some detail, we have decided that permission to appeal should be given. The Employment Appeal Tribunal made many findings in relation to the Employment Tribunal and considered their decision to be perverse. The EAT decided that the appropriate course was that the matter should be remitted for rehearing by an employment tribunal. Having resolved to grant permission it would not be helpful, for reasons which I shall briefly give, to attempt to set out matters at great length.
7. The application was considered on paper by Mummery LJ who adjourned it to an oral hearing in open Court inter partes. Mummery LJ stated on 2nd July:

"This is a substantial case in which the EAT allowed the appeals against a finding of racial discrimination and ordered re-hearing by a different tribunal. I am not prepared to say at this stage that the proposed appeal has no real prospects of success. I direct a preliminary inter partes hearing in order to examine the possibility of restricting the scope of the appeals, if showed to have a real prospect of success."

8. We have attempted to give effect to the intentions of Mummery LJ and have explored with the help of the parties whether in the event of permission being given, directions or indications can be given or the grounds of appeal limited in a way which would help the Court hearing the appeal. I have come to the conclusion that it is not possible to do so in this case. While some of the leading points are discrete points, there is overlapping and there are some fundamental questions on the one hand as to the procedures followed by the Employment Tribunal, and on the other as to the procedures followed by the Employment Appeal Tribunal. It is for that reason we give permission generally. We have been impressed today by the way Miss Monaghan on behalf of the applicant, and Mr Crofton in his submissions, have endeavoured to state succinctly the points they make, and they are both very much aware of the need to present to the Court submissions on distinct points at the same time keeping the general picture in mind.
9. I have been impressed by the argument that Mr Crofton has put forward in this respect, and I mention it to indicate why I come to the conclusion that Miss Monaghan has an arguable case. It appears to me that Mr Crofton also has one. He submits that there are such flaws in the decision of the Employment Appeal Tribunal that whatever flaws may be found in the reasoning of the Employment Tribunal, if any, would not obviate the need for a rehearing of the facts by an employment tribunal. Mr Crofton has submitted that the procedures before the Employment Tribunal were fundamentally flawed and points to the evidence they heard and did not hear and as to their reasoning and submits that a rehearing is necessary.
10. I am however persuaded by Miss Monaghan that there in a real prospect that, notwithstanding criticisms which may be made of the Employment Tribunal, its reasoning and conclusion can be upheld. If it is upheld, then of course there would be no rehearing.
11. The case does raise questions about the powers of the Employment Tribunal and also the powers of the EAT in relation to the findings of the Employment Tribunal. A point is also raised on the application by the Employment Tribunal of the tests in King v China Clay as to the approach the tribunal should take to evidence it hears when racial discrimination is alleged. Their approach did not commend itself to the Employment Appeal Tribunal. Mr Crofton says, in order to advocate a conclusion that there must be a rehearing, that issue in itself would not be decisive of the appeal.
12. Both parties have submitted full skeleton arguments. This is not a case where I would feel able to give them further directions which may be helpful to the constitution hearing the appeal. One general issue which has loomed larger in the proceedings in light of the argument is the effect of the interlocutory applications and orders made at both those stages, and if on either side the interlocutory orders and the arguments that led to them are going to be relied on, then no doubt the constitution hearing the appeal would be assisted by appropriate chronologies and written statements of what happened and the points relied on.
13. If there are any further skeleton arguments on that or further points, it is agreed that they should not be required to be delivered before the end of the vacation and that is by 30th September. Mr Crofton is away for a substantial part of vacation and welcomes the fact that he would have the latter part of September in which to do the further work he needs to do. Any replies to the submissions supplied should be with the Court and the other party by 14th October. Both parties have indicated to me the potential scope of the proceedings. I would direct that three days be allowed for the hearing. However, I would also indicate to the listing officer that as far as the constitution is concerned, a fourth day should be allocated and used at their discretion either before or after the three days on such time that they should be allocate for the hearing.
(Appeal allowed; costs reserved to the re-hearing)