United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN WESTGATE (of Counsel) Instructed by: Mr P Tsamados Central London Community Law Centre 19 Whitcomb Street London WC2H 7HA


 


JUDGE PETER CLARK: This is an appeal by Mr Villanueva against the decision of the London (North) Employment Tribunal promulgated with extended reasons on 12th January 1999, following a hearing held on 9th December 19998.

1. The appellant was employed by the respondent from 18th January 1988 until his dismissal effective on 15th May 1998. Following dismissal he presented an Originating Application dated 12th August 1998 to the Employment Tribunal. In that application he raised four particularised complaints:

(1) Unfair dismissal.

(2) Indirect race discrimination.

(3) Breach of Contract

(4) Failure to provided written reasons for dismissal.

That application was drafted with the assistance of professional advice.

2. The appellant, who is Filipino, appeared in person before the Employment Tribunal. The respondent was represented by Counsel, who called three witnesses. The appellant gave evidence himself by reference to a proof of evidence prepared by his advisor, and handed in written submissions also drafted by his advisor dealing with all four heads of claim.
3. The appeal focuses on the format of the extended reasons issued by the tribunal, chaired by Mr G Flint, and the conduct of the hearing. The first point taken is that in dismissing the application the extended reasons of the tribunal deal only with the claim of unfair dismissal and not the three further claims to which we have referred. This does not appear to be a case such as Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 (CA), where a point taken in the Originating Application was not pursued by the applicant at the hearing. In this case all four claims were adverted to in the appellant's written submissions, and it is accepted on behalf of respondent, we see from the solicitors' letter to the Registrar dated 24th March 1999, that this appears to have been an oversight on the part of the Chairman when he came to write the decision and reasons. It is said, on behalf of the respondent, that he dealt with the three further issues orally at the hearing.
4. The respondent invites us to request the Employment Tribunal to reconvene and to provide written reasons for dismissing the further claims prior to the determination of the appeal. Such a practice has been followed in this Court since the decision of the EAT, Nolan J presiding, in Yusuf v Aberplace [1984] ICR 850. However, the practice has recently been disapproved by the current President, Morison J. Accordingly, at this preliminary hearing stage, we shall simply allow the appeal to proceed to a full hearing on this first ground of appeal, that is the tribunal's failure to give written reasons for dismissing complaints (2)-(4).
5. The next ground of appeal advanced by Mr Westgate is that the tribunal was wrong to accept the evidence of the respondents' witnesses on the ground that the appellant had not cross-examined those witnesses. That raises a procedural question as to how an Employment Tribunal should fulfil its fact-finding role where there is a conflict of evidence but no, or no effective cross-examination by an unrepresented applicant with a poor command of the English language, perhaps overawed by the proceedings, of the respondents' witnesses. Again, we should like to hear full argument on the point at an inter partes hearing. In this connection the appellant has sworn and filed an affidavit dated 23rd June 1999. We direct that a copy of that affidavit be sent to the Chairman for his comments.
6. Finally, it is said that the tribunal made a material finding of fact, that the respondent would have been prepared to wait until the appellant returned from his mother's funeral in the Philippines, and then continue to explore the position to see if they could offer him a new job, following his old job being made redundant, which finding, it is said, was unsupported by the evidence. Both parties apply, in these circumstances, for the Chairman's Notes of Evidence. We accept that the Notes are necessary for the determination of the appeal, and rather than order an extract from the Notes limited to the third ground of appeal, we shall direct that the Chairman be requested to provide the whole of his Notes of Evidence in this case. Copies of the witness statements presented by the appellant and the three witnesses for the respondent below, have already been lodged with this Court.
7. In these circumstances, we shall allow the appeal to proceed to a full hearing on all three grounds mentioned above. In addition to the directions already given we shall order that the case be listed for one day, Category B. There will be exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments are to be lodged with the Court at the same time.