United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS)


 


JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at Stratford over two days 27 and 28 October 1998. The Employment Tribunal then dismissed the Appellant's application alleging unlawful discrimination on the ground of race. The matter comes before us today by way of preliminary hearing to determine whether there are points of law to justify the matter being considered in full by the Employment Appeal Tribunal.

1. We have been enormously assisted in this appeal by Mr O'Dempsey who appears here under the ELAAS Scheme and we would wish to express the opinion that the Appellant himself has also been very well served by the assistance given by Mr O'Dempsey without remuneration and to a very high level. The Notice of Appeal prepared by the Appellant appears in our bundle and Mr O'Dempsey has identified two grounds of appeal which the Appellant himself, now he has received advice on the matter, wishes to confine himself to.
2. The first ground is that, having indicated at the outset that when it came to the closing submissions it would be for the Respondents to make their submissions first and for the Appellant to have the last word, the Tribunal, in permitting the Respondents to then come back with final submissions to correct factual errors, if done without full explanation to the Appellant, may have given rise to a perception of bias. The second ground is that whilst the number of interruptions of the Appellant by the Chairman during the course of the hearing may have been confined to assisting to clarify what was being asked or said, if not accompanied with an explanation which engaged the approval of the Appellant to his being interrupted, may if so not accompanied having given rise to a perception of bias. It has been pointed out that in neither of those submissions is it suggested that there was actual bias on the part of the Tribunal, but that such appearances of bias gave rise to procedural irregularity in the conduct of the discrimination case.
3. Mr O'Dempsey points out that inferences and perceptions lie at the heart of racial discrimination cases and therefore, it is desirable that where there is this feeling on the part of an Appellant, it should, he would submit, have an opportunity of being fully canvassed before the Employment Appeal Tribunal. In support of his submissions, Mr O'Dempsey has referred to Tchoula v Netto Foodstores Ltd, the unreported decision of the Employment Appeal Tribunal No. EAT/1378/96 which contains very full and detailed guidance to Employment Tribunals. This decision is now something over a year old, and it is at, this stage, still unreported, sadly. Reference is made to guidance points (1) and (4) in that judgment. As a subsidiary to the specific submissions Mr O'Dempsey makes the general point that it would be appropriate for an Employment Appeal Tribunal to have an opportunity to explore the consequences of a failure to follow the guidance in that decision and to consider whether such constitutes or might constitute an error of law. We suspect that the answer is that these are not principles of law and that each case will depend upon its circumstances but nonetheless it is a matter which Mr O'Dempsey puts forward as meriting argument.
4. We have had an opportunity of seeing the affidavit of the Appellant and the letter prepared by the Chairman of the Employment Tribunal in answer to the allegations in the way they were put in the original Notice of Appeal. It seems to us that we should simply note that the Grounds of Appeal 7.2 has been formally abandoned, that the grounds 7.1 headed "Unprocedural" relates, as I have said, to the permission given to the Respondents to reply when they have earlier elected not to make closing submissions, and so far as bias is concerned, confined to the perception that may have come, if such interruptions which took place were not accompanied with the sort of explanations to which we have referred.
5. We have come to the conclusion that in the event of there being substance in those complaints, they do raise matters of law which are appropriately canvassed before the Employment Appeal Tribunal and we propose to direct that this matter proceed to a full hearing. In order to assist the disposal of this appeal, it would be of enormous assistance if the Chairman of the Employment Tribunal having been sent a copy of this judgment, could respond to the clarified areas of concern which relate essentially to the extent to which the steps that were taken were accompanied by an explanation. He did not have an opportunity to deal with in his earlier letter. It would be helpful if he could also obtain a note of the recollection of the lay members. This matter will be Category C, listed for half a day, Skeleton Arguments to be submitted not less than 14 days before the hearing.
6. Directions to our judgment: upon receipt of the Chairman's further replies, the Appellant should swear an affidavit dealing with the grounds of appeal as now put and as set out in this judgment. Such affidavit to be sworn within 14 days of receiving the Chairman's replies and secondly that in the event that the Appellant after seeking further advice wishes to further amend the Notice of Appeal, timely application in writing must be made to be assessed on its merits prior to the hearing in the ordinary course of events.