United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1248_94_1906

Appeal No. EAT/1248/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 June 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

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(1) MR C SWINDELLS

(2) BRITISH TELECOMMUNICATIONS PLC          APPELLANTS

MISS S C PEARSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS R DOWNING

(Of Counsel)

The Solicitor

British Telecommunications Plc

81 Newgate Street

London

EC1A 7AJ

For the Respondents MR R THACKER

(Of Counsel)

Messrs Lawford & Co

102-104 Sheen Road

Richmond

Surrey

TW9 1UP


 


MR JUSTICE MUMMERY (PRESIDENT): This is a Review initiated by the Appeal Tribunal under Rule 33 of the Employment Appeal Tribunal Rules 1993. The review arises out of what happened and what was ordered in this appeal, brought by Mr Swindells and British Telecom, against a decision of the Industrial Tribunal at Leeds, unanimously reached after hearings on 17 February and 31 October 1994.

The Tribunal unanimously decided that a claim made by Miss Pearson against Mr Swindells and British Telecom of sex discrimination was well-founded. A Notice of Appeal was served on 23 December 1994. The Extended Reasons were sent to the parties on 14 November. Shortly before the appeal was due to be heard on 26 October 1995, there was a request for the production of Chairman's Notes. That was dealt with by me. I said that it had been made too close to the hearing. It was not feasible to make an order in time for the hearing. It was not a case where it was appropriate to adjourn the hearing. I adjourned the application to the full tribunal for them to deal with when the case came on for hearing on the 26th. It came before a Tribunal chaired by Mr Justice Maurice Kay. He gave a short judgment dealing with the application for Chairman's Notes. For the reasons stated in it, the Tribunal acceded to the application for the order and adjourned the hearing to be re-fixed. The judgment noted the burden that this would put on the Industrial Tribunal Chairman. Mr Justice Maurice Kay stated that he wondered whether it was necessary for the order to apply to the whole of the proceedings, or a specific part of the proceedings. He said "We invite Counsels' representations on that."

The order that was actually issued by the Tribunal referred to the application for the Chairman's Notes and said that the application was granted and the Chairman be asked to produce his Notes of Evidence. It was then stated that the matter should be adjourned to 16 January 1996. It was not apparent from the order or from any further judgment of the Tribunal as to whether there had been representations on the question of to what extent it was necessary to have the Notes. I am told by Miss Downing, who was present on 26 October, that there were discussions between Counsel and the Members of the Tribunal following the short judgment given by Mr Justice Maurice Kay. The upshot of those discussions was the order for all of the Notes.

There was some understandable concern on the part of the Chairman of the Tribunal about why he was required to produce the whole of the notes. The judgment of Mr Justice Maurice Kay and the order were sent to the Chairman. In the circumstances mentioned, it was not clear to him, just as it was not clear to me, until I had heard Miss Downing's explanation of this, that there had in fact been representations and that the Tribunal had concluded that it was necessary to have the whole of the notes.

Following the query raised by the Chairman in a letter to this Tribunal on 26 January 1996, it was decided that the matter should be brought back by way of review, in order to see whether it really was necessary for the purposes of arguing points of law on the appeal, to have all the notes. When the parties were informed that there would be a review hearing today, Miss Downing, on behalf of Mr Swindells and British Telecom, helpfully produced written submissions. It is stated at the end of those that both sides had agreed that all the Notes of Evidence needed to be produced. The Respondents requested Notes of Evidence, not just the Appellants.

During the course of the review hearing this morning, I have been helped by Miss Downing's submissions about this issue and also by Mr Thacker's contribution. The conclusion which I have reached is that it is necessary, for the purposes of this appeal, to have the Notes of Evidence given by three witnesses, Mr Swindells, Mrs Cichosz and Mr McMaster on a number of issues arising from the Tribunal's Extended Reasons. I will order that the Chairman be requested to produce the notes of those three witnesses which relate to these issues. First, the views of those three witnesses on Miss Pearson's performance at the interview. I have seen from the decision that there is a written report made shortly after the interview. I understand from Miss Downing that that was before the Tribunal. It may well be that the notes of the oral evidence do not add much to that report. But if there are any answers given in chief or in cross-examination on the Members' views of Miss Pearson's performance, they should be produced. Secondly, I am of the view that the Notes of Evidence are necessary in relation to an issue arising from paragraph 5 of the Extended Reasons, where it is said:

"... We are satisfied that the first respondent [Mr Swindells] had put pressure on Karen Cishosz for him to move into the role of conducting the interview indicating that he considered he had more experience of interviewing than she had."

The Chairman's notes of the evidence given about Mr Swindells moving into the role described are necessary for the appeal. Thirdly, a short question on which Notes of Evidence are required concerns the powers of the members of the panel. I ask the Chairman to produce his Notes of Evidence as to what was said at the Industrial Tribunal hearing about their powers and status at the hearing. In particular, did they all have a vote or a right of veto, or did Mr Swindells have some power or right that the others did not have? We need clarification on that point.

Finally, I ask for the Notes of Evidence relating to any evidence given by Mr Swindells about his preference for Mr Cashman over Miss Pearson. In my view, that is the extent of the notes required for the hearing.