United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 118_94_0103

Appeal No. EAT/118/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MR J H GALBRAITH CB

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MR R L SANDHU          APPELLANT

LEICESTER CITY COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised


 


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APPEARANCES

For the Appellant MS D P M KELLY

(REPRESENTATIVE)

For the Respondents MR A J CROSS

(SOLICITOR)

Leicester City Council


 


MR JUSTICE MUMMERY (P): This is an appeal by Mr Sandhu. It is an Interlocutory Appeal in proceedings brought by him against his former employers, the Leicester City Council. The proceedings are for racial discrimination. His complaint was presented to the Tribunal on 29 January 1992. It stated that from 17 December 1985 he had been employed as a planning research officer under the Director of Leisure Services. His complaint was that the actions discriminatory alleged took place between 31 October 1991 and 5 December 1991. The complaint is amplified in an attached sheet. According to that the specific complaint during the period mentioned, was of racial discrimination in the conduct of Mr Llewellyn, the Director of Leisure Services in connection with a grievance lodged against Mr Sandhu by a subordinate. The overall complaint was that Mr Llewellyn's treatment of Mr Sandhu was less favourable than would have been accorded to white managers in similar circumstances and therefore constituted racial discrimination.

There are further proceedings presented on 1 December 1992 for unfair constructive dismissal in which Mr Sandhu alleges that he was dismissed on 31 August 1992 in the circumstances explained in the attached document. It is unnecessary to go into the details of those complaints which are disputed by the Leicester City Council.

There were a number of interlocutory applications before the Industrial Tribunal. This appeal arises out of them. The first matter arises out of an order made on 6 January by the Industrial Tribunal Chairman. That order was made as a result of the failure of Mr Sandhu to attend the third day of a hearing. The Chairman directed that the hearing be adjourned on terms that Mr Sandhu supply a letter signed by a medical practitioner certifying an opinion that Mr Sandhu was unfit to attend the hearing on 6 January and would be unfit to attend the hearing on the following day by reason of physical or mental infirmity. It was directed that the certificate should be supplied on or before 4.30 pm, Monday 17 January. It was directed that if the certificate was not provided at all by the date or in the terms stipulated the application would be dismissed under Rule 9(3) of the 1993 Rules of Procedure.

The present position is that on 9 March a hearing will take place for Mr Sandhu to show reason why his case should not be dismissed. The first appeal is against the order of the Tribunal directing that such a hearing should take place. That appeal is premature and misconceived. If the hearing does take place and the case is not dismissed, there will be nothing for Mr Sandhu to appeal against. If the hearing does take place and his case is dismissed that is the appropriate time for him to bring an appeal to this Tribunal. The appeal against that order is therefore dismissed. The same applies to the other matters appealed. There are a conglomeration of matters extensively documented in an Appellant's bundle. I shall deal with them in a brief and summary fashion because they are all open to the same objection of prematurity. In any event they fail to disclose at this stage any error of law on the part of the Tribunal. This Tribunal can only hear appeals on grounds that there has been an error of law. It is not sufficient simply to question the exercise of a discretion. It must be shown that any discretion exercised has been erroneously exercised in law.

The other matters raised are these. First, that the Tribunal should discharge itself from further involvement in these proceedings. They should be heard by an entirely different Tribunal. That was requested on the grounds of the alleged lack of impartiality on the part of the Tribunal. The application was refused. The Tribunal were entitled to refuse it in the exercise of their discretion, since no substantial grounds were shown to establish bias or lack of impartiality. Secondly, a complaint was made of lack of witness orders. Five were granted, twelve were refused. No grounds have been shown that the Tribunal was in error of law in refusing the twelve requested. Thirdly, there is a complaint of failure of the Council to give discovery as extensively as claimed. They have been ordered to give discovery. Mr Cross has explained to us that there are some practical difficulties in tracking down notes of the relevant grievance hearing. There are no grounds in law for questioning the failure of the Tribunal to order or enforce more extensive discovery.

Quite apart from those particular points, if the case proceeds, as I have mentioned, to a full hearing and the complaint is dismissed, the complainant, Mr Sandhu, may then have grounds for appealing on grounds of error of law. The particular complaints raised now as to lack of impartiality and in relation to witness orders and discovery, can be raised then. If the case proceeds to the full hearing and Mr Sandhu succeeds there would never be any occasion to entertain any complaint by him about any of these matters.

The whole of this application by way of Interlocutory Appeal is premature. For those reasons the appeals will be dismissed.