United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the First Respondent For the Second Respondent	MS K MONAGHAN (of Counsel) Instructed By: Heald Nickinson Ashton House 495 Silbury Boulevard Central Milton Keynes MK6 3AH MR T KIBLING (of Counsel) Instructed By: Nicholson Graham & Jones 110 Cannon Street London EC4N 6AR


 


MR JUSTICE MORISON: Mr Crofton seeks leave to make amendments to the Notice of Appeal in relation to each of the six matters which are currently before the Employment Appeal Tribunal.

1. The terms of the proposed amendments are set out in a four page document which is dated 30 June 1999. In principle there is no objection as it seems to me that could legitimately be raised to him making the amendments that he is seeking, but that is subject to qualifications and I will deal with them in this way. In relation to the first point under appeal 1352, the point is corrupt in the sense that there are words missing which need to be supplied. My understanding of what words are missing are these: "Council's Departments suspected of fraud" but it may be that I have misunderstood but I would require as a condition of leave to amend that within 14 days that paragraph be properly completed.
2. The second qualification relates to paragraphs 2 of 1352 and 1353, and paragraphs 1 of 1354 and 1356 and paragraph 2 of 1355. Each of these paragraphs says this:

"The Tribunal had no comparator and ignored valid comparators in concluding the same treatment was not, or would not be afforded to others."

The statement that the Tribunal had no comparator is not self-evidently clear. As I understand it the Appellant wishes to argue that there were valid comparators whom the Tribunal should have identified and taken into account in arriving at their conclusions. If that is the essence of the complaint, and I believe it to be so, then it would be appropriate that the Appellant should specify in each of the cases where this point is being made, the identity or identities of the comparator or comparators to whom he is referring.

3. In relation to paragraph 3 under 1354 I am not prepared to allow that amendment to be made because the ruling that is being challenged was a ruling made by a different Tribunal Chairman in April 1995, when a decision was promulgated which indicated that Mr Yeboah would not be required to produce at the Tribunal his naturalisation/registration papers. It seems to me that if that is, as I believe, what Mr Crofton is seeking to raise by this paragraph, he should not be permitted to do so as there has been no appeal against that decision that was made in 1995.
4. I understand that in relation to paragraph 4 in each of the first two appeals, the reference to the guidance of the Employment Appeal Tribunal is to a case which for short term purposes can be called Tchoula and that should be added to those two and to 1354 and paragraph 3 of 1355 and paragraph 2 of 1356 and 1357 for clarity.
5. On the basis therefore that within 14 days the Appellant will provide the information referred to in this judgment and make the alterations required, leave to amend is granted except for paragraph 3 of 1354.
6. There is an appeal against the Registrar's order made on 11 January 1999. By that order the Registrar directed allegations of bias and improper conduct on the part of the Employment Tribunal contained in the Notice of Appeal be struck out.
7. I am satisfied that the appeal against that decision was made timeously and the matter comes before me to determine whether in the exercise of my discretion I regard the order made by the Registrar as correct.
8. The background circumstances are these. There was a hearing which I believe lasted for over 100 days before an Employment Tribunal held at London North which held that Mr Crofton, the First Respondent and his employers, the London Borough of Hackney discriminated unlawfully against Mr Yeboah. During the course of that hearing Mr Yeboah gave evidence for some 25 days. Mr Crofton's evidence lasted I think some 20 days in all. It was therefore a hotly contested case with Counsel acting for Mr Yeboah and the London Borough of Hackney. Mr Crofton was acting in person.
9. The Notice of Appeal which was filed in this case by Mr Crofton contained allegations of bias and improper conduct on the part of the Employment Tribunal and accordingly in accordance with the procedure of this Court, Mr Crofton was invited to file an affidavit in support of his allegations so that that affidavit could then be supplied to the Chairman for his comments. The direction that the affidavit should be supplied was first contained in a document dated 19 October 1998 which Mr Crofton received. That directed that he should supply his affidavit within 28 days.
10. The purpose of this procedure, as is made plain by the Practice Direction, is that there should be full and proper particulars of the allegation on oath so that the Employment Tribunal can comment upon it. The Notice of Appeal did not give full and proper particulars of all the allegations of bias and misconduct and there was no affidavit in response to the direction of 16 October 1998. A subsequent letter chasing the affidavit was sent on 26 November 1998 but Mr Crofton says that he did not receive it. A further letter was sent on 17 December 1998 which was an unless order that if the affidavit was not provided within seven days of that date then the Notice of Appeal would be struck out.
11. There is some doubt as to what occurred on 23 December 1998 but I am prepared to accept for present purposes that on that date Mr Crofton transmitted by fax his affidavit, although he recognises that from his own telephone account it does not appear that the telephone line was open for long enough to have had a transmission electronically of an affidavit of the length in question. However, so far as he was concerned, he was able to produce material which showed that a fax had been sent to the Employment Appeal Tribunal on that day.
12. I am therefore prepared to assume for the purposes of this appeal, that the Employment Appeal Tribunal received the affidavit within time. Ms Monaghan says that that affidavit was non-compliant with the requirements of the Practice Direction in that it did not provide full and sufficient evidence of the improprieties being relied upon. In a case lasting as long as this, with witnesses at the witness table for weeks at a time, it was important as it seems to me, that if the Employment Tribunal was fairly to be given an opportunity to respond to the allegations that they should know with great particularity what precisely was being said against them.
13. I have to say that I am not satisfied that the affidavit of Mr Crofton complies with our Practice Direction in the sense that I am not satisfied that the Notice of Appeal when combined with the affidavit provided full and proper particulars of the allegations in a form which would enable the Chairman fairly and properly to deal with them. It is unnecessary to go through the affidavit in detail. Suffice it to say that if the affidavit is looked at, there is a lack of particularity about the occasions or dates on which events occurred, which witness is being referred to, what document is being referred to and so on.
14. I have some considerable sympathy with Mr Crofton's position which was that having received the letter in October 1998, he found it difficult to bring himself, as I understand it, to cast his mind back to a procedure which he found stressful and unpleasant, and it was difficult for him to bring himself to deal in detail with the points relating to the unfairness about which he feels strongly. But nonetheless, it seems to me that it was his obligation to provide us with an affidavit in proper form, and I have to say to him that whilst I am sympathetic to his position, nonetheless I must take the view that the Court is entitled to have its procedures honoured and respected. He says to me that it would not take him very long now to provide the detail now that he understands the level of detail which is required. He had not intended to flout the direction made by the Registrar nor to fail to comply with the Practice Direction. It was, he says, a misunderstanding on his part that there was a lack of particularity and he should be given some further time for doing so.
15. I am not satisfied that it would be appropriate that further time should be given. What has influenced me considerably in arriving at that conclusion is that in fact Mr Crofton was provided, as were the Tribunal and the other parties, with a running transcript of the evidence as it was given. It was not a transcript in the technical sense of being provided as I understand it by Court reporters but it was the Council's transcript of the evidence in typescript form which would come out two or three days after the evidence had been given. I am satisfied therefore that Mr Crofton had the facility to provide great detail because the transcript would have told him precisely on what days witnesses were giving evidence and that should have provoked his recollection into being able to say that it was on a particular day with a particular person or a particular document that there was unfairness.
16. If the affidavit was sent, as it was drafted, to the Chairman, I would not anticipate that the Chairman would be able to give a response other than simply to deny that there had been a failure as generally alleged. On that basis, it seems to me that the Employment Appeal Tribunal would be well unable to conclude that there had been any unfairness. In other words, it seems to me that as things stand, the allegation of prejudice and bias and impropriety is unsustainable. For the reason I have given that I do not think Mr Crofton should be given a further opportunity to make that good and therefore I dismiss the appeal for that reason.