United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J HICKS QC: We propose to direct that this appeal proceed to a full hearing but it is necessary to say something briefly about the scope of the hearing, because of the form of the Notice of Appeal and also because of the fact that this is an adjourned preliminary hearing, there already having been a judgment of this Tribunal on the first stage of the preliminary hearing.

1. As to the form of the Notice of Appeal there are set out, in paragraph 11, a number of allegations of error of law. We have no doubt that, if professionally drafted, they might have been worded slightly differently but the substance of what is raised (and has been argued by Ms Robertson) can be derived from them and unless Ms Robertson wishes to apply for leave to amend, we would not seek to interfere by way of simply juggling with those words.
2. Paragraph 12 raises a separate point, which for brevity has been called "the wrong comparator point" and, although Ms Robertson did not originally raise this as a separate argument she did, when directly asked, seek to support it, but after some discussion we gained the strong impression that she was prepared to accept that it raised nothing, or certainly nothing additional to paragraph 11, of any merit or importance. We agree, and direct that that paragraph shall not be pursued.
3. The other matter arises because at the earlier hearing our colleagues who were then sitting took the view that, although the point described as "the estoppel point" was arguable, it would be purely academic if the Tribunal's alternative ground for their decision was unimpeachable and when Mr Clarke, then appearing for Miss Quashie, was asked what evidence or what lines of questioning the Tribunal prevented Miss Quashie from giving or pursuing, he was not in a position to answer. The Employment Appeal Tribunal therefore required Miss Quashie to swear 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 pursuing as a result of rulings of the Tribunal.
4. Miss Quashie did indeed swear an affidavit, but we find great difficulty in seeing how it complies with the terms of that direction, except perhaps in one respect, namely the report of the Respondent's management enquiry, as to which it does seem plain from the Chairman's response that the Members of the Tribunal did read that document in whole and in full. The affidavit does however raise a number of what, on the face of it, would be serious allegations of bias and the like, which would found grounds of appeal if advanced substantively, but which play no part in the Notice of Appeal.
5. In the event, since we have been persuaded by Ms Robertson that the Notice of Appeal in paragraph 11 does raise arguable grounds, irrespective of the questions asked by our colleagues at the earlier hearing, we consider that the appropriate course is that the appeal under paragraph 11 should simply go forward as it stands and that the affidavit should be disregarded, certainly in the sense that none of the fresh allegations made in it should be considered as independent grounds of appeal.