United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CLARKE QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: The parties to this appeal are Miss S. Quashie and the London Borough of Greenwich. Miss Quashie appeals against the decision of an Industrial Tribunal sitting at London (South). They sat over a considerable period of time and gave Extended Reasons dated 14 August 1998 which run to 24 pages. The decision was a majority decision.

A skeleton argument was produced by Miss Quashie which we were told today was drafted by Solicitors. That identifies points which are said to be points of law that are reasonably arguable.

We will take only one of them for present purposes and that is that the conclusion of the majority relating to estoppel, which can be found in paragraph 68 and following of the Extended Reasons, is wrong. We accept that there are reasonably arguable points of law that that conclusion was wrong.

Assuming also (and at this stage it is simply an assumption) that the other points identified in the skeleton argument give rise to points of law that are reasonably arguable, the issue that remains is whether or not they are purely academic.

One can see that this question arises, in particular from paragraphs 77 of the Extended Reasons, in which the majority of the Tribunal say this:

"77. If as a matter of law the majority members are wrong to restrict their approach to the evidence in the way set out above as argued by the Respondents the majority members nevertheless concluded that Ms Quashie did not establish her claim of victimisation. ..."

Miss Quashie had the great benefit today of being represented by Mr Clarke under the ELAAS scheme and he said that, given the experience of the Chairman in this case, it is unsurprising that he dealt with matters in the alternative and it is clear that that is what he, being one of the majority, did. One can also, for example, look at paragraphs 28, 32, 59, 61, 66 and 67 of the Extended Reasons to show that the majority did consider a substantial amount of evidence and reached conclusions on what, on the face of it, appear to be the central factual issues in dispute.

What Mr Clarke has drawn very properly to our attention is paragraphs 7, 9 and 10 of the Extended Reasons which demonstrate that at the outset of the hearing, as one would expect, consideration was given as to the extent of evidence that would be heard. The point arises as to what, if any, relevant evidence was excluded as a result of the decision, or indication made as recorded in paragraph 9 of the Extended Reasons in the following terms:

"9. We should record that during the course of the cross-examination of Mrs Duncan-Brown by Ms Quashie some of the evidential/legal questions as to the extent to which the Applicants should be entitled to refer to matters of evidence going back many months, if not over a year before the date of dismissal began to arise. The matter was discussed with the Applicants and Respondent's counsel and the Chairman ruled that Ms Quashie would be entitled to make some reference to historical matters as 'background' to her claim of victimisation. It was also agreed by all that the cross-examination of Mrs Duncan-Brown should be broken off and we switched the order of proceedings i.e. Ms Quashie commenced her evidence in chief."

It is also relevant to read paragraphs 10, 11 and 12 with that explanation as to what happened at an early stage of the hearing.

We asked Mr Clarke the question "What evidence or what lines of questioning the Tribunal prevented Miss Quashie from giving or pursuing?". Naturally he was not in a position today to particularise that. He had asked the same question and was told that there was some evidence and some lines of questioning that Miss Quashie would have wished to have pursued but was prevented from pursuing.

It seems to us that it is important at this stage to know what Miss Quashie says that evidence was, and what she says those lines of questioning were, because it is only if it can be seen that the exclusion of evidence and/or lines of questioning arguably excluded relevant material, or material that would arguably affect the result, that this appeal becomes one that has more than academic interest.

We therefore propose to adjourn the preliminary hearing and direct that within 21 days Miss Quashie do put in an affidavit identifying by reference to headings, or some other convenient description, the evidence she alleges she was precluded from advancing, and the lines of questioning which she alleges she was precluded from advancing, as a result of rulings of the Tribunal acting through its Chairman.

In the light of that further information this Tribunal will then reconsider whether or not there are points of law on this appeal that are other than academic and so the matter will then be re-listed. We will make such attempt as we can to ensure that one, two, or three of us are present on the next preliminary hearing, but if that it is not practical it will be a wholly different Tribunal that deals with this case.