United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D WAGSTAFF Solicitor MESSRS DAVID WAGSTAFF & CO Solicitors Treviot House 186-192 High Road Ilford IG1 1LR
For the Respondents	MR C GLYN Counsel instructed by MR ZAMAN ALI K. Zaman Ali & Co Solicitors 411A Brixton Road London SW9 7DG


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT) This was a meeting for directions to decide how various appeals should now proceed. The main appeal is case number EAT/177/98/SV. This is an appeal by London General Transport Services Limited against a decision of an Employment Tribunal which was promulgated on 5 November 1997. The essential point at issue was whether by virtue of an agreement between the employer and a trade union, the Applicants, now the Respondents to this appeal, became bound by any such agreement.

The questions at issue are elaborated in a Notice of Appeal presented by Mr Wagstaff. He has kindly indicated that he is going to amend the Notice of Appeal so as to make it plain when he refers to the Respondent whether he is referring to the employee or whether he is referring to his own clients. There seems to be some confusion in the document which has already been served. I give him leave to amend to make those adjustments. Because the Court is making an Order, it should have a time limit attached to it and therefore I would suggest 14 days. There will be no need for the Answer to the Notice of Appeal to be amended.

The second direction I give relates to notes of evidence. The matter came before another division of the Employment Appeal Tribunal in the summer of last year. Mr Wagstaff tells me, and I accept, that at the preliminary hearing of this appeal, the Court indicated that it would be minded to make an Order for notes of evidence provided that it was told precisely what notes were required. There was then some discussion between himself and I think the employee's representative and then the Court staff. The net result of this was that there was no mention of notes of evidence in the Order that was drawn up and the Appellants, London General Transport Services Limited, say that they should be entitled to have the notes of evidence. The form of the Order that they had invited the Court to make, and which they believe the Court had made at the earlier hearing, was that the Chairman's notes of evidence should be provided of Mr J M Elms and Mr D Ibekwe limited to the following issue: namely the Appellant's history or tradition of negotiating with the Transport and General Worker's Union concerning changes to the terms and conditions of employment of its staff, and the staff's awareness of this history or tradition. Limited in this way, the EAT indicated, as we understand it, that such an Order would be made.

I am acutely aware of the problems which Chairmen have when they are asked to produce notes of evidence and I am parsimonious in the Orders which I personally will make in this respect. It seems to me that this is an appellate body which can only deal with points of law and it is rare that notes of evidence are necessary and rarer still in my experience when they have been obtained, they are ever referred to during the hearing of the appeal. That is because notes of evidence are what they purport to be, namely, merely a note of the evidence. The fact that something is not incorporated into the notes of evidence does not mean that the note is defective, and they are rarely helpful. However because Mr Wagstaff told me that in effect the Court had agreed to make an Order in limited terms, it would be wrong, I think at this stage to refuse the application which he has made.

I am also persuaded that the application for notes of evidence should be made because I have had the benefit of listening to Mr Glyn on behalf of the Respondents to the appeal, who are the Applicants, who agree that notes of evidence should be required. In addition he asks for the notes of evidence in relation to a witness, Mr Bridge, who may be able to cast some light on the question as to the implementation and notification of implementation of any agreement that was made.

I have considered whether it is sensible to make an Order for the notes of evidence to be in limited form, that is, limited as was suggested by the Appellant at the previous hearing. I take the view that it is likely to be easier for the learned Chairman in this case to simply produce the whole of his notes of his evidence in relation to Mr Elms, Mr Ibekwe and Mr Bridge, rather than for the Chairman to be placed under a further obligation to determine whether or not a particular piece of evidence was relevant to the issue as defined in the limited request.

Accordingly, I would rather not make an Order for the notes of evidence because I think that such an Order is not necessary. It is my experience that learned Chairmen are very happy to co-operate when the Employment Appeal Tribunal indicate to them in writing that the Court would require the notes of evidence, and therefore an Order is superfluous. I will, if need be, make such an Order, but at the present time I think that it will be sufficient for the Chairman to be invited to give his notes of evidence in accordance with my direction and he can be sent a copy of this judgment.

The next direction I give is that this appeal should be consolidated with an appeal EAT/1397/97. In effect that is an appeal in relation to those Applicants who did not succeed before the Employment Tribunal in the case to which I have referred. They have appealed and it is obviously sensible that their appeal should be conjoined with this one and I so direct that they be consolidated and heard together.

I was asked whether some indication could be given as to the consolidation of two other appeals, one of which has been lodged here, EAT/210/99/SV. That is a remedies appeal which has yet to be set down for a preliminary hearing. There is no guarantee that it will be allowed to proceed. If it is allowed to proceed then consideration will have to be given as to whether it would be sensible to conjoin that appeal with the two that I have already referred to, but at this time I am not prepared to give any direction as to consolidation. I can see arguments for and against consolidation of that case with these.

In relation to the final appeal which is number PA/160/99/SV, nobody in Court this morning was able to tell me what the appeal relates to and what stage, if any, it has reached. It seems to me that if that appeal matures into a registered appeal and passes the preliminary hearing stage, then again consideration may have to be given as to whether it should be conjoined with the present appeal. But I do not regard either of the last two appeals to which I have referred as being a hurdle to getting on with the conjoined appeal. These matters should be heard and determined as soon as possible. It was suggested by Counsel for the employees that 2 days would be required on the conjoined appeal. It was suggested by Mr Wagstaff on behalf of the employers that 3 days would be required. I was told by them that the argument on law took half a day in front of the Employment Tribunal. I am not prepared to say that the arguments are likely to be that much longer. I therefore direct that this be listed as a Category A case and that I estimate, with proper skeleton arguments, properly identifying who the parties are in a non-confusing way, that the whole argument can be completed in one day.

There is a further application which was made on behalf of the Respondents and the position is, they tell me, at some stage during the hearing they made an application for a particular witness to be subpoenaed. Mr Wagstaff, who was present at the hearing, has no recollection of that application having been made nor of it being refused as the Respondents contend. It was suggested that I should ask the Industrial Tribunal for notes of evidence or alternatively, that the Tribunal Chairman should be written to. Notes of evidence will not disclose how he dealt with an application of that sort and I would not order disclosure of his note book so as to see whether he has anything recorded in it in relation to such a submission. Even if an application had been made and was refused, and even if that application has impeded the employees, it seems to me quite unnecessary at this time to consider writing to the Chairman because I am satisfied that if an application for leave to appeal is out of time against such an alleged Order, it would inevitably fail. There could be no justifiable reason for a delay in making such a point. If the Tribunal made an Order, there are 42 days for appealing from it and no more. In those circumstances, I dismiss that part of the application that was sought on behalf of the individuals.