United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


MR JUSTICE CHARLES: The parties to this appeal are Mr Lawal and Northern Spirit Ltd. Mr Lawal is the Appellant and he appeals against a decision of the Industrial Tribunal sitting in Sheffield on 29 July 1998. That decision is contained in Extended Reasons dated 10 August 1998.

Mr Lawal has presented us with voluminous documentation raising a number of points, two of which we will deal with straightaway. One relates to the correct identification of the Respondent, Northern Spirit Ltd. So far as we can see there is no reasonably arguable point of law as to that and no such argument in respect of that point should be permitted in the future. Another point raised which he deals with at some length is that he did not see two pages of a letter from solicitors acting for the Respondent. Again those points, in our judgment, raise no reasonably arguable point of law and he should not be permitted to pursue them in this Tribunal.

We have had the assistance of Mr Barklem this morning acting under the ELAAS Scheme. We are very grateful to him. Mr Lawal is here and we confirm that he should be very grateful to him for the help he has given to us and to him this morning. Mr Barklem has drawn our attention to a letter at page 27 of this Tribunal's bundle which is a letter written by the Regional Secretary to the Tribunals and the last paragraph of that letter is in the following terms:

"Meanwhile the Regional Chairman refuses the application for a review of the Pre-Hearing Review decision on the grounds that it has no reasonable prospect of success."

The earlier part of that letter identifies the Regional Chairman as Mr Sneath and says that he has read the file and decided that the matter should be listed for a preliminary hearing to deal with two points, namely

"(a) the impact in this case of the reasoning behind the decisions in Holland v Glendale Industries Ltd (EAT 903/97) reported in the Times on 28 May 1998 and in the IDS Brief 616 on page 10 and Divine-Bortney v London Borough of Brent reported in the IDS Brief 615 on page 11; and

(b) whether this application has any prospect of success and whether it should be struck out."

No criticism is made of Mr Sneath for identifying those points. The problem however arises from his review of the pre-hearing review. A pre-hearing review was held by different members of the Tribunal and, as appears from the Extended Reasons, an order was made that Mr Lawal do deposit the sum of £150.

The relevant rules are contained in paragraphs 7 and 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 and rule 7 (9) provides, in terms that:

"(9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."

In our judgment it is arguable that rule 7 (9) should be applied to a Regional Chairman who reviews a pre-hearing review pursuant to rule 11 (5) and it is arguable that it should be applied directly having regard to the nature of a review, or if that is wrong, indirectly having regard to the purpose underlying rule 7 (9).

In our judgment therefore, this appeal should be allowed to proceed on the point as to whether or not Mr Sneath should have heard the case with two other members of the Tribunal in July 1998. If the appeal were to be so limited there may well be difficulty in this Tribunal, if it thought fit, dealing with the matter once and for all on the appeal hearing.

For that reason, in our judgment, the following points on the appeal should also be before this Tribunal and they are as follows. First, whether the conclusion of the Employment Tribunal based on the decision of Holland v Glendale is correct having regard for example to the more recent decision in Weathersfield Ltd v Sargent [1999] IRLR 94. Secondly whether the decision of the Tribunal based on the Divine case is correct and thirdly and, in any event, whether it would be just and equitable to extend time to permit Mr Lawal to make the allegations of racial discrimination which the Employment Tribunal decided he could not advance.

With that in mind we will also direct that Mr Lawal, in the next 21 days, put in a statement as to why he asserts it would be just and equitable for those allegations to be considered by a Tribunal and we will give liberty to the Respondents to answer that statement within 21 days of its receipt by them. We would urge Mr Lawal to keep that statement to factual allegations and to avoid embarking upon submissions or revisiting points that we have said do not reveal reasonably arguable points of law. Also there is no need for him to go into the points we have identified relating to the decision of the Industrial Tribunal which, in our judgment, should also be before this Tribunal when it hears the procedural point.

One of my colleagues drew to my attention that there is what we understand to be a typographical error in the opening paragraph of the Decision of the Industrial Tribunal where it refers to it being a unanimous decision of that Tribunal. This is because it is apparent from the last paragraph of the Extended Reasons that sub-paragraph (v) was a majority decision. It is our reading that paragraphs (i) to (iv) were indeed unanimous decisions.

Finally, we would like to comment that we do not think that Mr Lawal should be optimistic as to his chances of success on the substantive issues we have identified as opposed to the procedural issue.