United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE PETER CLARK: This is an appeal by Ms McDade against a decision of the Ashford Industrial Tribunal chaired by Mr D.E. de Saxe, sitting on 7 - 10 July and in Chambers on 11 July 1997, dismissing her complaints of unfair dismissal and wrongful dismissal. The Industrial Tribunal decision with Extended Reasons was promulgated on 6 August 1997.

By her grounds of appeal, running to 15 pages in all, the Appellant takes a number of separate points. At pages 11 - 13 of the grounds of appeal there is a section headed "The Judgment of Mr de Saxe". In that section the Appellant complains of the Chairman's conduct of the proceedings below. In particular, it is alleged that the Chairman erred in law by misdirecting the panel to consider only evidence and argument from the stage in the internal disciplinary process at which Dr Susskind, a member of the Respondent's management board, commenced a disciplinary hearing. In so doing, it is contended that the Chairman prevented the Appellant from advancing her pleaded case which depended, in part, on the Respondent's conduct of earlier disciplinary hearings. Further, it is said that the Appellant was obstructed by the Chairman's constant interventions.

Paragraph 9 of the current EAT Practice Direction deals with the procedure to be adopted on appeal to the EAT where a party intends to complain about the conduct of the proceedings before the Industrial Tribunal. Where such complaints are raised in the Notice of Appeal the usual practice is for the Registrar to direct that the complainant should file affidavit evidence setting out the full nature of the complaints so that the Chairman may provide his comments thereon.

No such direction has been given by the Registrar in this case prior to this preliminary hearing. We have explained the procedure to Ms McDade and without submission to the contrary have decided to adjourn this hearing with a direction that she file affidavit evidence in support of that section of her grounds of appeal to which we have referred within 21 days of today's date. Upon receipt of such evidence we direct that copies of that evidence, together with a copy of the Notice of Appeal, be forwarded to the Chairman for his comments. Upon receipt of those comments the papers will be referred to me for a further direction.

The next point is this. Ms McDade has lodged three bundles for this hearing. They consist of, among other things, all the documents, some 600 pages which were before the Industrial Tribunal.

Paragraph 6 (3) of the Practice Direction makes clear that it is the duty of parties to ensure that only those documents which are relevant to the points of law raised in the appeal and are likely to be referred to at the hearing should be included in the EAT bundle. We cannot believe that each and every document lodged for the purpose of the Preliminary Hearing, held to determine whether there is any arguable point or points of law to go to a full hearing, is relevant and will be referred to at the hearing. That has been confirmed to us today by Ms McDade who has in mind which documents she wishes to refer to, but has not given an indication as to what those documents are. We have therefore directed that the Appellant prepare and lodge a core bundle of documents for use at the next hearing, again with 21 days.

Alternatively, she may deal with the matter by way of a revised skeleton argument. That is the next point. We take into account the fact that the Appellant appears in person; however, the skeleton argument which she has lodged, whilst having the advantage of brevity, does not concisely identify and summarise the points of law which she seeks to raise in this appeal, setting out the stages in the legal argument to be advanced, as required by paragraph 8 (2) of the Practice Direction. Accordingly the Appellant is directed, not less than 7 days before the next hearing date, to lodge a fresh skeleton argument complying with the Practice Direction and referring, by page number, to any document which is relevant to the argument and referring to any authorities setting out the name and reference in each case and, in particular, setting out the proposition of law which she seeks to derive from such authority.

The Appellant has applied for Chairman's Notes of Evidence and an Order subpoenaing Mr Michael Ford, a barrister who appeared on her behalf at an internal disciplinary hearing held on 18 May 1995 and on behalf of a colleague, Ms Johnson at a further disciplinary hearing held on 26 May 1995.

As to the question of Chairman's Notes, we think that that application can best be dealt with at this stage by forwarding a copy of Ms McDade's letter to the EAT dated 15 September 1997 (page 35 in the EAT bundle) to the Chairman for his comments, by reference to his notes of evidence, on the first paragraph of that letter, at the same time as he is asked to comment on the Appellant's affidavit evidence.

As to the application for a subpoena, it appears that the Appellant understood from Mr Ford that he was willing to attend the Industrial Tribunal hearing, and would be available on the afternoon of the Thursday of the week in which the hearing took place. She tells us that the hearing was concluded before that time. Mr Ford was not called.

It seems to us that the Appellant was obliged to apply for an adjournment and/or to apply for a Witness Order in respect of Mr Ford in order to ensure that his evidence, if relevant, was put before the Industrial Tribunal which is the fact finding Tribunal. She did neither. In these circumstances we have concluded that the evidence of Mr Ford could have been placed before the Industrial Tribunal with reasonable diligence, but was not. Accordingly, applying the principles laid down by Popplewell J in Wileman v Minilec Engineering Ltd [1988] ICR 318 we shall not permit further evidence from Mr Ford to be adduced on appeal. The application for a Witness Order in respect of him is refused.

Finally, the Appellant has raised a number of further matters. First of all that below the Respondent failed to answer satisfactorily interrogatories which she had served on them, or to give full discovery. She tells us that these are matters which she raised with the Chairman at the start of the substantive hearing.

Secondly, she raises a point in relation to the evidence of Ms Johnson. Thirdly, in relation to her brother's statement and his opinion evidence which she sought to lead before the Tribunal and finally, her own evidence. It seems to us that where these are matters of complaint in the appeal they should be set out and dealt with in the affidavit which we have directed should be filed by her.

Finally, in so far as there are any further specific applications for Chairman's Notes of Evidence or part of the notes, these should be clearly set out in writing in accordance with the Practice Direction, paragraph 7, particularly paragraph 7 (3). Those are the directions which we give at this stage. The appeal is adjourned.