United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MILLEN (Representative)


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing was to determine whether there is an arguable point of law fit to be raised before a full panel of the Employment Appeal Tribunal on a subsequent occasion in relation to an appeal which Ms Georgestone wishes to pursue against a decision of an Industrial Tribunal held at London (South). By their decision which was sent to the parties on 1st November 1996, the Industrial Tribunal dismissed the applicant's complaints of unfair dismissal and unlawful discrimination on grounds of race. The decision was given after a two day hearing.

We have had the benefit of being addressed by Mr Millen on Ms Georgestone's behalf, and he has elaborated the Notice of Appeal.

We are prepared to say that there are the following arguable points.

Firstly, whether the tribunal have properly dealt with the procedural errors which are referred to at paragraph 43 of their decision. That is, first, the role of Mr Molloy as both investigator and adjudicator. Second, the question of what material the adjudicator had before him when he took the decision to dismiss, in particular, what statements from witnesses he had available and whether those were the statements of evidence of the witnesses at the Industrial Tribunal. Third, the applicant's right of appeal. There is an issue as to whether, as the tribunal record, the applicant ever said in her evidence that she would not have appealed even if she had had the opportunity to do so by receiving the letter of dismissal which she did not receive.

In relation to these points we consider that it would be of assistance to the Employment Appeal Tribunal if Mr Millen was to make an affidavit setting out what happened at the Industrial Tribunal on the second day. In the course of his submissions he told us that whilst he was making his closing presentation to the Industrial Tribunal, the Industrial Tribunal Chairperson indicated that it was her recollection that the applicant, Ms Georgestone, had said that she would not appeal even if she had received the letter, and that Ms Georgestone intervened at that time and made it plain that that was not what she had said. We consider that such an affidavit should be sworn and that he should show a copy of it before it is sworn to Ms Georgestone so that she can confirm its contents.

That affidavit should be supplied within 28 days of today to the Employment Appeal Tribunal, and that if it is not so supplied, then the appeal will be dismissed. We will then provide that material to the respondents and they are invited, if they so wish, to respond by affidavit within 28 days thereafter. Those affidavits should be supplied to the Chairman of the tribunal for further comment if she so wishes. We direct that the Chairman be invited to provide her Notes of Evidence which clearly are going to be important for the fair determination of this matter.

By allowing this case to go for a full hearing, I want to make it clear that we are giving no indication to the parties one way or the other as to the likely outcome of the appeal when it comes back before us.

I want to add also that the ambit of the appeal will be limited to the points which I have indicated in this judgment. It follows, therefore, that her complaint of unlawful discrimination on grounds of race is not a matter which will be revived. It seems to us that there is no appeal against that decision. The appeal is solely concerned with the appeal against the decision on unfair dismissal.