United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 888_94_0211

Appeal No. EAT/888/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 November 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

LORD GLADWIN OF CLEE CBE

MR J C RAMSAY

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MR K OSEI          APPELLANT

IRISH LIFE ASSURANCE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J D ACHEIMPONG

(REPRESENTATIVE)

For the Respondents MR P WALLINGTON

(OF COUNSEL)

Radcliffes & Co

5 Great College Street

London SW1P 3SJ


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against an interlocutory decision of the Industrial Tribunal sitting at Croydon on 1 September 1994. The appeal is in proceedings between Mr Osei and the Irish Life Assurance Co Ltd for whom he was a representative appointed under a 3 year fixed appointment until that expired in March 1991. When the appointment expired and was not renewed Mr Osei presented an Originating Application to the Industrial Tribunal complaining of race discrimination contrary to the 1976 Act. The claim was disputed. In the Notice of Appearance dated 4 June 1991 the Respondents, Irish Life Assurance, stated the grounds on which racial discrimination was denied. There is a long history of applications to the Industrial Tribunal. It is unnecessary to examine those.

The position is that on 1 September the substantive hearing started. An application was made by Counsel then instructed on behalf of Mr Osei for discovery of documents listed as items 1-4 in a letter of 13 May 1994. An application was also made for the hearing to be adjourned pending discovery. The applications were refused. Mr Osei's Counsel and solicitor then withdrew from the case. Mr Osei proceeded to deal with his case in person and gave evidence. The hearing was adjourned to 22 September, the second day of the hearing. Mr Osei appeared in person. He made an application for discovery and for an adjournment which was refused. The Tribunal heard the evidence of the Respondents. As there was no time for the closing submissions after the completion of evidence, the Tribunal made an Order that written submissions should be made by each side by 7 November. The Respondents have sent in their written submissions. They are requesting, as shown by letter accompanying those submissions, that the applicant should show cause as to why the application should not be struck out.

Mr Osei is dissatisfied with the refusal of the Tribunal to make the order for discovery on 1 September. He wishes to appeal against that. He contacted the Employment Appeal Tribunal and impressed on its administration the urgency of his appeal. We have before us a Notice of Appeal dated 21 September 1994 received here at the beginning of October. In that Notice of Appeal Mr Osei states:

"The Appellant appeals from the decision of the Industrial Tribunal made on 1st September 1994 whereby the Tribunal refused the Appellant's application for further discovery to be given by the Respondents in relation to all documents relevant for the determination of issues in the proceedings and in particular the following:

(a) Copies of all Agreements of appointed representatives not renewed in the past 3 years.

(b) Copy of the appointed representative's file kept by the Respondents in relation to the business of the Appellant when engaged by the Respondents."

The grounds of the appeal are stated to be that the refusal to make further discovery would effectively and unreasonably prevent evidence of the Respondent's conduct in other cases involving non-renewal of appointed representatives' agreements from being put before the Tribunal and, secondly, that the Tribunal's decision in the circumstances would effectively prevent the real issues at stake from being determined; and thirdly, that the Tribunal erred in the exercise of its discretion in all the circumstances.

At the same date as Mr Osei prepared that Notice of Appeal he also issued a Notice of Application to the Tribunal seeking to have the proceedings stayed. It appears from the Notice of Application dated 21 September that he intended to apply to this Tribunal for an order for the stay of the proceedings listed for hearing by the Industrial Tribunal on 22 September until the full and final determination of his interlocutory appeal against the Tribunal's order of 1 September. No order for stay has been made by this Tribunal.

The position today is this. We were informed when the matter was first called on that the solicitor who had been acting for Mr Osei, Mr Quest of McHale & Co, would be coming to the Tribunal this morning to present Mr Osei's appeal. Until he arrived Mr Osei was assisted by a Mr Acheimpong. Despite opposition from Mr Wallington on behalf of Irish Life, we adjourned the hearing of the appeal until 11.15 am to enable Mr Quest to arrive. We made it clear that if he had not arrived by 11.15 am, we would start to hear the appeal. When we were called back in at ll.15 am, it was explained by Mr Acheimpong that Mr Quest was not in fact coming to the Tribunal after all.

The matter therefore proceeded in this way. Mr Osei's case has been presented by Mr Acheimpong and Mr Wallington has made his submissions on behalf of Irish Life.

We adopted an unusual course which we should explain in case there is any misunderstanding at a later stage in proceedings here or in the Industrial Tribunal or in a higher Court. Having read the papers, which included skeleton submissions from each side, we formed the view that it would be sensible for this matter to be dealt with in the following way. First, that the appeal should be adjourned. The reason is that there are not available to this Tribunal, or to anyone else, at the moment, a statement in writing of the reasons for the Tribunal's decision refusing discovery on 1 September. A letter was written to the Tribunal by Mr Osei requesting notes of the Chairman relating to the application and requesting a transcript. The Tribunal replied, correctly, in our view, refusing both. Transcripts are not kept of Industrial Tribunals' hearings. Chairman's Notes are only made available to this Tribunal and to the parties on application to this Tribunal and on this Tribunal making an Order for the production of the notes only in cases where it is necessary to have them in order to dispose of an appeal.

Mr Osei has not yet made a request in writing to the Tribunal for a statement of the reasons for the Tribunal's decision on his first discovery application. As we understand the position it was suggested to the Tribunal by Mr Wallington that separate reasons should be provided but the Tribunal decided that those reasons would be more conveniently incorporated in its final decision of the case and not be the subject of a separate decision.

In our view, for this appeal to be effective, it will be necessary for written reasons to be requested from the Chairman. We propose to adjourn the hearing of the appeal; this course was initially opposed by Mr Wallington, but he later withdrew his opposition. It is a course which Mr Acheimpong agrees on behalf of Mr Osei. We make it clear that we adjourn the appeal so that a request can be made by or on behalf of Mr Osei to the Tribunal to provide, in writing, a statement of the reasons for refusing the discovery application on 1 September.

We have been informed in the skeleton submissions of Mr Osei that he may be bringing a further interlocutory appeal against a discovery ruling made on 22 September 1994. No appeal has yet been lodged. If it is, we make it clear that there should be a request to the Tribunal to state in writing the reasons for the decision which appealed against. Under the Employment Appeal Tribunal Rules, Rule 3, it is necessary, on every appeal to this Tribunal, to serve not only a Notice of Appeal but also a copy of the decision or Order of the Industrial Tribunal, which is the subject of the appeal, and a copy of the extended written reasons for the decision or Order of the Tribunal.

We need to have in the case of the pending appeal, as well as any contemplated appeal from the Order of 22 September, a copy of the Order or decision of the Tribunal at Croydon and also a statement of the extended written reasons.

The first Order we make is that the appeal before us is adjourned pending a request for written reasons. When those are supplied by the Tribunal the case will be relisted for hearing as soon as possible. In view of the urgency of the matter we shall direct that any request for written reasons to be made by Mr Osei should be within a definite time. We will hear submissions shortly as to what that time should be.

Secondly, we give leave to each party to make any amendments they think are appropriate to their appeal documents; the Notice of Appeal in the case of Mr Osei and the Respondents' Answer in the case of Irish Life in the light of written reasons provided by the Tribunal. Amendments to the Notice of Appeals are to be made within 7 days of the receipt of the written reasons by the Appellant. Any amendments to the Respondents' Answer are to be made within 7 days of the service of the amended Notice of Appeal.

Thirdly, we decline to make any Order staying proceedings in the Croydon Tribunal pending the determination of this appeal. The practical effect of us refusing to do that is that the direction given by the Tribunal for written submissions to be made by each side by 7 November remains unaltered. The Respondents have got in their submissions. It is now for Mr Osie and those assisting him to make sure that his submissions in writing are sent to the Tribunal in time to be received by 7 November.

Mr Acheimpong, on behalf of Mr Osei, suggested that we might make some form of order directing the Tribunal not to give its final decision until this appeal has been disposed of. We do not think it appropriate to make any order. We indicate to the Tribunal that it may be in the interests of that Tribunal, this Tribunal and of all the parties for them to delay the giving of a final decision on the merits of the substantive case until this appeal has been disposed of. If the appeal fails, there will be no further material to be taken into account by the Tribunal in its substantive decision. If the appeal succeeds, wholly or to a limited extent, there may be further documents which Irish Life are ordered to produce relating to the issues between the parties. It would then be for the Industrial Tribunal to consider whether, in the light of a decision of this Tribunal on a successful appeal, it should have a further oral hearing or whether it is a matter to be dealt with by supplementary written submissions.

We make it clear that it is not for us to interfere with the way in which the Tribunal sees fit to conduct the matter from now on, but we give those indications of what may be in interests of everybody. We are confident that those indications will be taken into account by the Tribunal in deciding how to proceed.

We give no further directions in relation to a possible appeal against the Order of 22 September, save that if such an appeal is filed it will be consolidated with the appeal before us today and will be heard together with it.

Those complete the directions. On the question of costs Mr Wallington indicated on behalf of Irish Life that he may wish to make an application for costs in relation to the hearing of this appeal, including the hearing today. But he is content that that be reserved until the substantive hearing of the appeal. There is no information before the Tribunal at present to indicate that Mr Osei is in receipt of legal aid and therefore it is not necessary to make any Order in relation to the taxation of costs for legal aid purposes.

To summarise:

(1) The appeal is adjourned.

(2) Mr Osei should make written application for reasons in writing for the decisions which he is appealing or intends to appeal.

(3) The existing proceedings are not stayed pending the hearing of the appeal

(4) We indicate that it may be advisable for the Tribunal to postpone the giving of a final decision until this appeal has been determined.

(5) The appeal will be determined as a matter of urgency when the parties are ready.

(6) The costs of today are reserved.

We will now hear any applications or submissions...