United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In person


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law to be raised against a decision of an Industrial Tribunal which was sent to the parties on 19 May 1998. By that decision the learned Chairman sitting on his own, dismissed the Applicant's application brought under the Race Relations Act on the grounds "that no arguable basis has been identified upon which the complaints could succeed so that it can only be said that they are frivolous and vexatious". Accordingly it appears that the learned Chairman was seeking to exercise a discretion conferred on him under Rule 13 of the Industrial Tribunal Rules of Procedure.

The Applicant was represented before the Employment Tribunal by Mr McKenzie from the Stockwell & Clapham Law Centre. Before us, he has been represented by Mr Soor of Counsel.

It was the Applicant's understanding, so he told us, that the purpose of the hearing which was to take place, was to consider what directions should be given. In particular, what if any orders were required for the disclosure of documents and the attendance of witnesses. He said that that understanding was based upon the letter which the Industrial Tribunals had sent to the law centre and to the Respondents dated 24 March 1998.

Prior to that letter, the Respondents had asked the Industrial Tribunal to hold a pre-hearing review because they were of the view that the case was sufficiently hopeless to justify the Tribunal conducting such a review under Rule 7. The Industrial Tribunal had refused to order that there should be a pre-hearing review by saying in their letter of 17 March 1998 that:

1. the triable issues are adequately defined and there will be no saving in time and costs in holding a pre-hearing review;

2. the tribunal cannot reach the view that the contentions put forward by the applicant/respondent have no reasonable prospect of success without hearing oral evidence and no such evidence is received at a pre-hearing review."

We are told that what then happened, during a very brief hearing, lasting no more than about 15 or 20 minutes, was that the Chairman listened to submissions from the representatives of the parties and indicated that a decision would be emerging in due course. The decision was the one to which this appeal relates. We are told that the Applicant himself, Mr Afolayan was not asked to give evidence, that the Tribunal did not receive any evidence at all from either himself or from the Respondents.

The issues which this appeal raises and which we believe to be arguable are firstly, did the learned Chairman have jurisdiction to do what he did sitting on his own, secondly did the Tribunal act within the rules having regard in particular to Rule 13(3) and thirdly, did the Tribunal act lawfully in deciding to strike out the application on the grounds that it was frivolous, without having heard any evidence and without giving Mr Afolayan the opportunity to give oral evidence on that issue.

It seems to us that all those points are arguable and that this is plainly a case where we would be assisted by affidavit evidence to confirm the format of the proceedings having regard to the notices of hearing. Accordingly we ask in the first place, that the Applicant himself should file an affidavit within 14 days of today, setting out the circumstances in which the hearing came to take place; precisely what took place at the hearing, how long it lasted, whether he gave any evidence and what representations to the best of his recollection, were made on behalf of the parties.

It appears that a notice of hearing must have been given to the Stockwell and Clapham Law Centre, because the letter of 24 March makes no reference to a hearing date. It would be of assistance if the Applicant was able to exhibit a copy of that document notifying them of the hearing date, if he can.

We would expressly invite assistance from the law centre, in particular from Mr McKenzie, if he is still available. We would wish him to make an affidavit setting out his recollection of what took place and the circumstances in which the hearing came to take place, and whether, in particular, he believes that he was dealing with a question as to whether the application should be struck out on the grounds that it was on frivolous and vexatious.

We cannot make and will not make an order against Mr McKenzie, because he is not here today, and although attempts have been made to contact him, that has not proved possible, but no doubt when he has had an opportunity to read the terms of this written judgment, he will be able to see that it would be very much in his former client's interest, that he should make and provide us with such an affidavit.

When the affidavit or affidavits have been received, they will be sent to the other party for their comments and to the Industrial Tribunal Chairman for him to comment. When the matter comes back before the Employment Appeal Tribunal, it should be listed as a category A case, because I think it raises a point of some importance as to Tribunal practice and procedures, this being not the first time that a similar situation has arisen, to the President's knowledge. It will not last for more than half a day. There being no evidence, there is no need to order notes of evidence.

The Respondents take the view that this appeal is hopeless. They do not have any suggestions to make as to any further directions that now should be made. I have taken into account their answers on the PHD form for which the EAT is grateful.