United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O SEGAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing was to determine whether there are arguable points of law raised in a Notice of Appeal against a decision of an Industrial Tribunal presided over by Mr Booth, held at London (South) on 19 November 1996.

Mrs Williams had presented a complaint against her employers, the Commissioners of Inland Revenue and a named individual, alleging discrimination on grounds of race. Effectively, she was complaining that she had been discriminated against at her workplace; that an investigation was carried out after she had made complaints to the former Prime Minister and that the investigation itself was carried out in a discriminatory manner.

The details of her complaints are examined by the Industrial Tribunal in the course of their decision, which runs to some 31 paragraphs, and was contained in extended written reasons sent to the parties on 28 November 1996.

It has to be said that, not much of the original Notice of Appeal seemed to us to raise reasonably arguable points of law, but Mr Segal in an able submission to us, has pointed out that in this case Mr Booth was Chairman of a Tribunal which adjudicated on another of Mrs Williams' complaints in May 1996, that he then presided over a pre-hearing review which took place in June 1996 together with the two lay members on that occasion, who eventually sat with him on 19 November 1996.

It is submitted to us that by virtue of Rule 7(9) of the Industrial Tribunals Rules of Procedure it was improper and unlawful for Mr Booth and his lay colleagues to have sat on 19 November, having conducted a pre-hearing review in June.

We regard that point as being a reasonably arguable point of law. It will be apparent from the terms of the decision of the pre-hearing review, a copy of which should now be included in the EAT papers, that the panel decided, deliberately, to sit at the subsequent hearing in November for administrative convenience reasons and it will be a question at issue at the full hearing of this appeal as to whether they were lawfully entitled to do that, having regard to the terms of the rules.

The second reasonably arguable point of law, as it seems to us, relates to whether there was actual or apparent bias in this case. The position is that Mr Booth had, many years ago and for a very short period of time, served in the Inland Revenue. That was disclosed in November 1996. I understand the contention to be that it had not been previously disclosed, when he had sat on the complaint in May 1996, and at the pre-hearing review in June 1996.

During the course of the pre-hearing review it is alleged in the Notice of Appeal that words were said which indicated some arguable bias on Mr Booth's part, that is what is set out in paragraph 6(2)(b) of the existing Notice of Appeal. Again, we consider that point to be arguable when taken in conjunction, as we understand it should be, with parts of paragraphs 3(a) of the Notice of Appeal.

Counsel has indicated that he would wish to amend the Notice of Appeal to raise the first point which is not raised at all, which he says is a jurisdictional point and to reformulate, as we understand it, the bias contention amalgamating paragraphs 2(b) and 3(a) in a more coherent and explicit form. He may have leave to do that and he must file at this office an amended Notice of Appeal within 14 days.

The only other ground which has not formally been abandoned is paragraph 3(b) of the original Notice of Appeal, which is an allegation of perversity in relation to paragraph 26(b) of the Industrial Tribunal's decision.

It seems to us, having looked at the whole of the decision, that it is not at all apparent that one could describe this decision as being perverse. It is not so much a question of saying there was no evidence to support a finding, it is rather than allegation, as we understand it, that the Industrial Tribunal have misunderstood or misappreciated the nature of the questions that were being asked and the evidence that was being given.

We do not consider that that gives rise to any arguable point of law. We consider that more to be in the nature of an appeal on the facts, which would require us to go back into the facts again, which is something that does not fall within our power to do, we only having jurisdiction of a limited nature to deal with points of law.

Accordingly, we are not satisfied that paragraph 3(b) raises any arguable point of law and we would not permit it to be argued at the full hearing of this appeal.

It follows, therefore, that the full hearing of the appeal will be confined to the two points which I have identified. I wish to make it plain that by allowing this to go ahead for a full hearing, neither I nor my colleagues are expressing any view one way or the other as to the likely outcome of the appeal.