United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondent	MISS S MOOR OF COUNSEL Instructed by Irwin Mitchell Braby & Walker 48-50 St Johns Street London EC1M 4DP


 


MR JUSTICE MORISON (PRESIDENT): This was an Appeal by Mr Shahrokni from an Interlocutory decision of an Employment Tribunal which relates to his request for what he regarded were Further and Better Particulars. In truth, the request was more in the nature of an application for Interrogatories and because the Tribunal are masters of their own procedure and are exercising a discretion when making interlocutory orders, it is only in rare cases that we will interfere with what the Employment Tribunal has done. I say that by way of preliminary to a more important part of this Judgment which relates to the background to these cases, and how the outstanding matters can best be decided in the interests of justice and economy.

Mr Shahrokni made a complaint against his former employers, the Kingsway College, that he had been discriminated against. He was successful in his claim but was not represented during those proceedings by the Union, of which he was a member, namely NATFHE. The consequence was that Mr Shahrokni then brought a claim against NATFHE Union and certain named individuals. In fact, he has brought 5 complaints against NATFHE Union and named individuals.

The first 2 cases can be taken together. They alleged that he had been denied facilities, as a Union member, by reason of his race, namely, I think, representation in his dispute with his Employers. He succeeded substantially in his complaint of unlawful discrimination, which I think also included an element of victimisation. There was an appeal by NATFHE Union against the liability decision and a cross-appeal by Mr Shahrokni. His cross-appeal related, I think to the identity of the person or persons who were liable for the unlawful discrimination which the Tribunal had found proved. In due course, the Appeal by NATFHE Union was withdrawn. That leaves Mr Shahrokni's cross-appeal which he wishes to pursue and that matter will have to be considered at a Full Hearing of the Employment Appeal Tribunal in due course. I shall return to this matter later.

The liability decision gave rise to a Remedies Hearing and a decision. At that Hearing, Mr Shahrokni was awarded £4,000 by way of injury to feelings. He appeals from that decision and that Appeal has to be heard at a Preliminary Hearing at the Employment Appeal Tribunal.

He brought a third complaint against the Union in relation to a specific act of discrimination; I think in the way in which a particular grievance was dealt with. The Employment Tribunal adjudicated on that complaint on 11th December 1997, dismissed it but criticised the procedure of the Union which I think may have been changed since that date. There is currently no Appeal in relation to that decision and time for appealing has long expired. Mr Shahrokni indicates that he may wish to consider putting in a Notice of Appeal. He is aware of the time limit and he is also aware of the way in which the Employment Appeal Tribunal will exercise its discretion when considering an application for an extension of time and reference was made to a judgment of the Employment Appeal Tribunal in the case of United Arab Emirates -v- Abel Gafar where the guidance is fully set out.

The relevant outstanding cases so far as the Employment Tribunal is concerned are cases No: 4 & 5. Essentially, the cases, which have been consolidated, relate to a separate and different grievance from that raised in Case No 3 and relate to what happened, as I understand it, at Regional and at National level. Those two cases have yet to be heard and determined and it was Mr Shahrokni's application for Further and Better Particulars and/or Interrogatories which was considered by the Learned Chairman and against which there has been this Appeal. It became apparent to us, in the course of the hearing of this Appeal, that the most useful thing that we can do is to assist the Employment Tribunal in case managing the 4th and 5th cases, so that they come before the Employment Tribunal in a way in which Mr Shahrokni will not be ambushed. It is apparent from the earlier hearings, to which I have referred, that a large part of the time taken up in the Tribunal was by witnesses reading their witness statements which had not been, as I understand it, disclosed to Mr Shahrokni before the Tribunal proceedings commenced. Accordingly, and not surprisingly, as an unrepresented litigant, he had some considerable difficulty in targeting his cross-examination in the succinct way that he would have wished, being able to cross-refer one witness statement to another and to the documents which had been produced at the Employment Tribunal. That was obviously a method of proceeding which was calculated to lead to lengthy days of hearing as, indeed, was the case. It seems to us that that should not happen again and it was therefore, with that in mind that we were of the view that Directions should be given by this Court in the exercise of our statutory powers, to make any Order which the Employment Tribunal itself can make.

The first question, which we cannot assist on, is when will these two cases which are consolidated, be heard by the Employment Tribunal. We are not here to fix cases for them: they must do it for themselves. It is a case where, I think 10 days would be sensible to set aside, but I would hope that in the light of the directions which I am about to give, the cases can be completed and concluded well before then. The question then arises as to when 10 days can be found for one Tribunal to sit in this particular region.

The second constraint on the timing of these matters relates to Mr Shahrokni's cross-appeal, to which I have referred. It is his view, and we agree with it, that it would be desirable that this cross-appeal should be heard and determined by the Employment Appeal Tribunal before the Employment Tribunal hears and determines the 4th and 5th cases. For this purpose, I will direct that the cross-appeal be heard in the first week of October of 1999 and that will ensure, in the light of other directions I am going to give, that the cross-appeal and its determination will not adversely impact on the timing of the Employment Tribunal's determination of the 4th and 5th cases.

The Directions require me, first of all, to lift the stay which has been imposed by the Employment Tribunal. The circumstances in which that stay came to be imposed are these. Mr Shahrokni was of the view that the 4th and 5th cases should not be heard and determined by the same Tribunal, that is the Tribunal similarly constituted as that which had heard his other cases. The reason why he was of the view that there should be a new, freshly constituted, Tribunal was that there was a minority member, that is in the minority on the liability decision, who he believed was antagonistic towards him and may have influenced the majority to have "pulled their punches". It is of course, not open to us on the hearing of this Appeal without any affidavit material and so forth, to form any view as to the merits of Mr Shahrokni's view, but we are unanimously of the view that it would be sensible for there to be a new Tribunal freshly constituted here to determine the 4th and 5th cases. We say that because, it seems to us, the past history of these proceedings can be gathered from and contained within the decisions that have been given by the Tribunal, including the decision by the Employment Appeal Tribunal on the cross-appeal.

Those decisions of the Employment Tribunal stand, as modified by the Employment Appeal Tribunal, and represent a full and satisfactory history of the state of play between the parties. We see no particular advantage in the same Tribunal hearing the matter because a different Tribunal will have access to those decisions. Furthermore, it seems to us that there must be a real risk that at the end of the day Mr Shahrokni may feel that had his case not been heard by the same Tribunal a result more favourable to him would or might have been arrived at. There is a risk, as it seems to us, that if the same Tribunal were to continue to hear the 4th and 5th cases that they would carry with them impressions of witnesses and so forth, which they would find difficult to dispel even though they were approaching the 4th and 5th cases anew. Because they will be referring to the previous decisions of the Employment Tribunal, that should obviate any risk of there being conflicts of findings of fact between one Tribunal and another. The stay, accordingly, is lifted and we give these directions.

In the first place, it would be important, we think, that formal Orders for Discovery should be made against each of the parties requiring them to disclose by list within 28 days all documents in their custody, possession or power, which are relevant to the issues in the case. NATFHE Union have indicated that they have carried out that exercise in relation to the 4th Application. Whether that is so or not, it seems to us that an Order for Discovery is appropriate against them so that there should be no doubt at the end of the day that all relevant documents such as exist in their custody, possession or power have or should have been produced pursuant to the Order. I make the same Order against Mr Shahrokni because it is apparent that he may have in his custody, possession or power notes, possibly scrappy notes, possibly not very easy to interpret notes, of relevant meetings. Those documents are also disclosable and should be disclosed by him with the 28 day period.

In relation to the IT.3 in this case, without criticising the Respondents, the fact is that this IT.3 is very thin and uninformative. It seems to us undesirable that an IT.3 should be drafted in such a legalistic fashion with non-admissions and denials littering the document. It seems to us that a fully responsive IT.3 would have been appropriate.

It is true that subsequent to the IT.3 being filed, rather more lengthy points were made in answer to the race relations questionnaire, but it seems to us that the function of the IT.3 and the function of the answers to the questionnaire are not entirely the same. It is desirable that the formal document, the IT.3, should be as fully and sensibly as responsive as possible, so as to enable the Tribunal to form a view as to where the issues lie. I therefore direct that such an amended IT.3 should be filed within 21 days from the date hereof.

It is a plain case for the preparation of a bundle of documents which contains those documents on which each of the parties wish to rely, put together in sensible form and properly numbered so that both parties and the Tribunal can work from the same documentary material at the Hearing. This will enable Mr Shahrokni to prepare himself for the difficult task which always exists for applicants in race cases and other discrimination cases, who have the burden of proof upon them, to cross-examine the witnesses for the Respondents.

Full witness statements will help to elucidate what the factual issues are and provided that the parties have sufficient time to read each others' witness statements and prepare themselves for the hearing, that will also be an economical use of the Tribunal's hearing time. For this purpose, I am going to direct that witness statements be exchanged by the end of September of this year and I am going to direct that the bundle of documents be prepared no later than the end of July this year.

Those witness statements will deal with all the evidence which the witness wishes to give. It would be unsatisfactory if the witness statement was not fully comprehensive and it will be noted that Mr Shahrokni has asked a number of specific questions which form the subject matter of this Appeal and it would obviously be helpful for the proper disposal of this case if as much of the material which he is seeking were dealt with in those witness statements as far as is reasonably practicable. I want to make it quite plain that when an Order for exchange of witness statements is made in this form the Learned Chairman will have a discretion as to whether to permit examination in chief. The purpose of having an exchange of witness statements is to avoid the need for examination in chief and I would anticipate that a Chairman would be parsimonious in his approach to the question of leave to amplify it. If of course, it were to transpire that the amplification of a witness's statement then took the other party by surprise, the Tribunal have power to adjourn the case and make any necessary consequential orders.

It is our intention that by making this Order the Employment Tribunal, before it embarks on the hearing of the case, should itself have had an opportunity to read the documents presented to it and in particular, the witness statements which have been exchanged. This is a hearing which we have indicated is likely to last for a few days and it would be our understanding of the procedure that, at least for the first day, the Employment Tribunal members should be given the opportunity to read the material which the parties have provided to them. It may be that that task cannot be completed in one day alone, in which case, they should be given sufficient time to do their reading before the case begins. We would want to make it perfectly clear, also, that if that opportunity is made available and is taken, it is unnecessary and undesirable that witnesses should be required to read out their witness statement at the witness table.

For the purposes of enabling the case to proceed with due dispatch, we indicate that the witness statements should be exchanged between the parties no later than 30th September 1999. That will fit in with the cross-appeal, to which I have referred, at the Employment Appeal Tribunal and will therefore, enable the Employment Tribunal, at an early stage, to fix a hearing for 10 days beginning with the period no earlier than the middle of November 1999. We would hope that 10 days could be found very soon after that date. That will give the parties 6 weeks preparation time for getting themselves ready for the adversarial process.

The formal Order therefore, that is made in this case, is that the Appeal that Mr Shahrokni has made should be dismissed. In dismissing it we are making it plain that he is achieving the information which he is seeking by a different process; but having said that, we are satisfied that the process by which he had sought to obtain this information, was not in our view, legally correct. We would have been required to have dismissed this Appeal on legal grounds in any event.

Accordingly, the Appeal will be dismissed and we make the Order as I have indicated.