United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B NAPIER (Of Counsel) Messrs Nabarro Nathanson Solicitors 50 Stratton Street London W1X 6NX
For the Respondent	MR S WOOD (Of Counsel) Messrs Carathe Chivers Brown Solicitors 420/424 Ewell Road Tolworth Surrey KT6 7EH


 


JUDGE CLARK: In this case the Applicant before the Industrial Tribunal, Mr Mervyn Leon Thomas, who is of black Caribbean origin, was employed by R H Thompson & Co Ltd., ("the Company") from September 1968 until his dismissal on the grounds of redundancy in May 1994.

He presented a complaint alleging both unfair dismissal and unlawful racial discrimination. That complaint was heard by the London (South) Industrial Tribunal on 6,7 and 8 September 1995. At the hearing the Applicant was represented by Counsel, Mr Wood, who appears before me today, and the company by its Managing Director, Mr G Bishop, who also gave evidence.

The Tribunal's decision, together with full reasons, is dated 9 November It concluded that the Applicant was both unfairly dismissed and directly discriminated against on grounds of his race, in that he was selected for redundancy on racial grounds. The Tribunal then went on to assess compensation in the total sum of £69,874.94.

Having lost their case before the Tribunal, the Company instructed solicitors, Messrs Nabarro Nathanson ("the Solicitors") who in turn instructed Mr Brian Napier of Counsel to settle a Notice of Appeal. That Notice is dated 20 December 1995. Only the first ground of appeal is material to the present application. It is in these terms:

"1. The industrial tribunal erred in law in that its decision that the Appellant discriminated against the Respondent on grounds of race in selecting him for redundancy was contrary to the facts and perverse. The importance attached by the tribunal to there being a "unanimous decision" at the meeting of 17th March 1994 to select the Respondent for dismissal was misplaced. The word "unanimous" in this context, does not, contrary to the tribunal's finding, by itself necessarily mean that the decision was jointly taken by all present."

On 27 December 1995 the Solicitors applied for the Chairman's Notes of Evidence. They limited their application in this way:

"3. The notes are requested in view of certain of the grounds of appeal, namely:

3.1 The assertion in the notice of appeal (para. 1 of the Appellant's grounds of Appeal) that the finding of the tribunal that the Appellant discriminated against the Respondent is perverse.

3,2 The assertion (....) that the tribunal gave misplaced importance to the use of the word "unanimous" in relation to a decision taken by the Appellant to dismiss the Respondent on grounds of redundancy. The Appellant seeks to challenge certain findings of fact made by the tribunal which are dependent on the meaning given to the word."

It appears from the correspondence which I have seen that a request was made by the Employment Appeal Tribunal Registrar to the Industrial Tribunal for the Chairman's Notes. That was queried by the Chairman, Miss E R Donnelly. On 19 August 1996 the Registrar wrote to the Solicitors asking them to renew their application for the Notes.

By a letter dated 22 August, the Solicitors replied in these terms:

"Our letter of 27th December 1995 identifies issues in the Notice of Appeal to which the Notes of Evidence are relevant, namely the assertion in the Notice of Appeal (....) that the finding of the Tribunal that the Appellant discriminated against the Respondent is perverse.

In addition, the Notes of Evidence are required in view of the assertion in paragraph 1 of the Appellant's grounds of appeal, that the Tribunal gave misplaced importance to the use of the word "unanimous" in relation to a decision taken by the Appellant to dismiss the Respondent on grounds of redundancy. The Appellant will seek to challenge certain findings of fact made by the Tribunal which are dependent on the meaning given to the word."

The letter was placed before the then President, Mr Justice Mummery, who refused the application for the Notes. That direction was communicated to the Solicitors by letter from the Registrar dated 30 September 1996. The Solicitors wrote back on 21 October 1996 setting out in some detail what are there described as both procedural and substantive points. The letter concludes by asking for an oral hearing so that the Appellant may state its case. Provision for such a hearing is made in paragraph 7(5) of the 1996 Practice Direction issued by Mr Justice Mummery.

It is in these circumstances that the matter comes before me for an oral directions hearing inter partes. I have considered the application, which is opposed by Mr Wood, de novo. I do not regard myself as being in any way bound by the earlier directions given in this case.

Chairman's Notes of Evidence

This Tribunal is in general reluctant to order full or part Chairman's Notes to be produced for two principle reasons; the first is that we are conscious of the burden, often unnecessary, placed on Chairman to physically produce their Notes for use on appeal. It is a time-consuming and often laborious task, made futile where no or no material reference to the Notes is then made during the appeal. (See for example the observations of Judge Colin Smith QC at the end of his judgment in St Budeaux Royal British Legion Club Ltd v Cooper EAT 394/94 15 June 1995 unreported.) Secondly, our jurisdiction on appeal from an Industrial Tribunal is circumscribed by statute, now Section 21(1) of the Industrial Tribunals Act 1996. Appeals lie to the Appeal Tribunal on questions of law. It is not the function of this Tribunal to rehear the facts. Questions of fact are for the Industrial Tribunal.

In these circumstances the question of whether or not Chairman's Notes ought to be ordered in a particular case have been the subject of judicial pronouncement in a number of cases, beginning with the judgment of Mr Justice Browne-Wilkinson, then President of the EAT, in Webb v Anglian Water Authority [1981] ICR 811. A number of principles emerging from the cases have been incorporated into the 1996 Practice Direction. Thus notes will only be ordered where necessary for the purpose of arguing points of law on the appeal. They will not be ordered where a party is on a "fishing expedition", casting around for possible grounds of appeal, or so that a party can check the reasoning of the Tribunal.

Perversity appeals

The particular point raised in the present application focuses on the first ground of the Notice of Appeal ("the perversity ground"). Quite properly the Appellant has limited this application to the Notes of Evidence which it says are necessary for it to argue this ground of appeal.

The perversity ground is in turn directed to paragraph 23 of the Tribunal's reasons, where they say this:

"The importance of finding that both Mr Richardson and Mr Morden are racist is that they were both present at the meeting which selected who was to be made redundant on the 17 March 1994. Present at the meeting were Mr Bishop, Mr Greenstreet, Mr Morden and Mr Richardson. Mr Bishop has maintained that he had decided that the Applicant was to be the person chosen for redundancy when he went into the meeting. He said he would have considered someone else if either Mr Richardson, Mr Morden or Mr Greenstreet has suggested it, but there was unanimous agreement. Mr Richardson said that he thought the Applicant wanted redundancy. The Tribunal finds that this was a lie. The Applicant had said that he might be interested in early retirement on the right terms. Mr Morden, when asked, said that he was happy to work with Mr Morris. However, the Tribunal has already found that Mr Morden is a racist. It finds that an operative reason in Mr Morden's preferring Mr Morris was that he did not want to work with a black man. The Tribunal finds that the decision to select the Applicant for redundancy was made at that meeting on 17 March 1994. It notes that Mr Bishop said that he had made up his mind, but it also notes that his evidence was that the decision was unanimous. The Tribunal understands this to mean that the others present at the meeting on 17 March took a part in the decision to select. That decision was made by four people, two of whom were established racists and the third who knew that the Applicant had been subjected to racial harassment. The Tribunal finds that an operative cause for selecting the Applicant for redundancy was the fact that he was a black man."

The argument which Mr Napier wishes to advance at the full appeal hearing under this head of his appeal, can be summarised in this way: he wishes to challenge the Tribunal's finding that the Applicant's selection for redundancy took place at the meeting held on 17 March 1994. He wishes to submit that there was no sufficient evidence to support the Tribunal's finding that all present at the meeting, namely, Mr Bishop, Mr Greenstreet, Mr Morden and Mr Richardson, took part in the decision to select the Applicant for redundancy. He says that this is a necessary part of his challenge to the inference drawn by the Tribunal that that unanimous decision was taken on the grounds of the Applicant's race, bearing in mind their other findings including those that both Morden and Richardson adopted a racist approach to the Applicant during his employment.

It is not for me at this stage to assess the strength or weakness of that submission. That will be a matter for the full appeal tribunal. My task is to decide whether at this stage, since my order cannot be final (see the observations of Mr Justice Mummery in Colchester Borough Transport Ltd v Caryer EAT348/95 26 October 1995, unreported about renewed applications for Notes at the full appeal hearing) any and if so what Notes of Evidence are necessary for the fair disposal of this appeal.

Mr Napier submits that in order to argue the perversity ground, it is necessary to have first, notes of Mr Bishop's evidence that he made up his mind that the Applicant should be selected for redundancy before going into the meeting of 17 March. Pausing there, I can see no need for Notes of Evidence which is specifically recorded in the Industrial Tribunal's reasons as can be seen from paragraph 23. It is not suggested that Mr Bishop's evidence on this point has been inaccurately set out. The point which Mr Napier seeks to advance, can be made, it seems to me, on the face of the decision. Secondly, he asked for the Notes of Evidence given by Messrs Bishop, Morden and Richardson, as to what took place at the meeting of 17 March 1994. Mr Wood contends that their evidence about that meeting is set out in paragraph 23. It seems to me that that is a reasonable proposition to advance. He also refers to the Respondent's Notice of Appearance in this case, where it is said:

"At a meeting held on Thursday 17th March 1994 at Seal, Kent, staffing requirements were discussed and it was decided that, as there were two office managers, one had to be made redundant."

In my judgment, the point which Mr Napier seeks to advance can be properly made on the basis of the evidence recorded in the Tribunal's reasons. This is not a case where it is said that the Tribunal has inaccurately recorded evidence, or that it has reached a finding for which there was no evidential base. When so analyzed it seems to me that the Notes of Evidence sought by the Appellant in this case are not necessary for the purpose of arguing the perversity ground and accordingly this application is refused.

The fact that the Appellants were unrepresented below does not of itself justify the granting of the application where the Notes are found to be unnecessary. (See the observations of Mr Justice Browne-Wilkinson in Webb v Anglian Water Authority.) One final observation - there is a tendency for parties to seize on the words of Sir John Donaldson, Master of the Rolls, in Piggott Bros. & Co Ltd v Jackson [1991] IRLR 30 at paragraph 27, to suggest that a perversity appeal cannot succeed in the absence of the Chairman's Notes of Evidence; this is a perversity appeal, therefore we must have the Notes of Evidence. I do not think that Mr Napier puts it in that way in this application, but to make it clear it is my view that such a wide interpretation of that part of the Master of the Rolls judgment is not justified. Perversity appeals take many forms, not every such appeal requires the Notes of Evidence. (See Hawkins v Ball & Barclays Bank Plc [1996] IRLR 258 at paragraph 15 per Keene J.) This, in my view, is one of those cases.