United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D O'Dempsey (Of Counsel) ELAAS


 


MR JUSTICE HOLLAND:

1. By way of IT1 dated 14 March 1997, Mrs Adegbite complained that she had been discriminated against on the basis of her race and colour by her employers, the Inland Revenue.
2. That complaint came for adjudication before an Employment Tribunal held at Stratford on the 7 and 8 July 1998 and on the 17, 18 and 19 November 1998. In the result it was the unanimous decision of that Tribunal that the appellant failed to prove her allegations.
3. An appeal has been mounted to this Tribunal. That Appeal has come before us this morning by way of a preliminary hearing. For this hearing Mrs Adegbite has had the advantage of representation by Mr O'Dempsey pursuant to the ELAAS scheme.
4. The argument that is raised before us relates to the conduct of the hearing below. By way of an affidavit, Mrs Adegbite has set out in some detail various complaints against the way matters were conducted in the course of the hearing. For our benefit Mr O'Dempsey identified three such in particular.
5. The first such relates to the apportionment of time to the respective cross-examinations. It turns out that according to the Chairman's own note, Mrs Adegbite was cross-examined by Counsel for the Inland Revenue for approximately 9 hours. By contrast the key witness for the Inland Revenue Mr Demirsoz was cross-examined for rather less for 6 hours.
6. Yet further, the latter cross-examination, which was conducted by the Union official Mr Bassett, then appearing for Mrs Adegbite, was interrupted and was subject to comment by the Chairman, as to when he was getting to the nub of the matter, and generally as to the speed as to which he was progressing.
7. The submission made by Mr O'Dempsey is that all this serves to be judged by way of the notional impartial observer. He would further submit that in this class of case, that is, a case relating to race discrimination, there is a premium upon apparent fairness. It is arguable that the impartial observer looking at this sequence of events would detect unfairness.
8. There is a further point taken, and that relates to the late introduction of documents by the respondent. Seemingly, these documents were related to the comparator, a Ms Dwyer, and the complaint is that they were put in at late stage, and there was little or no time to examine them and draw conclusions from them. Yet again, Mr O'Dempsey invokes the impartial bystander and queries as to whether there was the apparent total lack of bias that should be the hallmark of these hearings.
9. There is a further point that he raises and that appears from Page 13 of our bundle, paragraph 13 in these terms.

"During the hearing, on at least three occasions I tried to make reference to documents in the bundle to buttress my point while I was under cross examination and while I was re-examined by Mr Bassett. Each time Ms Eady objected, she said I could not refer to any documents in the bundle but not in my evidence in chief".

10. The further comment that underpins all three points is the imbalance in representation, the Inland Revenue had experienced Counsel, Mrs Adegbite had a union official. In the event, having listened carefully to Mr O'Dempsey, we were satisfied that sufficient had been raised to justify adjourning this matter so as to enable this Tribunal to have the advantage of an inter-partes hearing, that is with addresses from both sides.
11. One particular point that this Tribunal will no doubt address itself to is as to the impartial observer that is how forensically knowledgeable or innocent that observer has to be in order to make judgements that go to partiality or to the lack of bias and this is an observation we particularly made in the context of the arguments as to apportionment of time for cross-examination.
12. Further this Tribunal can no doubt look into the underlying circumstances, which may well have been influenced by the comparative lack of preparation undertaken by the parties before this matter got underway, with the result that one possible explanation for what was happening, was that there was a deal of preparation going on whilst the hearing was in progress, that preparation being promoted by the fact of two traunches of hearing the first in July and the second in November.
13. It plainly is difficult in those circumstances for an Employment Tribunal to maintain the appearance of impartiality and it is a matter for this Tribunal as to whether in the circumstances that was achieved. For those reasons then it makes sense to go forward and that leads onto directions. Directions we make are as follows;

1 The appellant do have leave to amend and reserve the notice of appeal within 21 days.

2 Within the next ensuing 21 days

a) The lay members of the Tribunal be invited to make statements if they think fit.

b) Mr Bassett do make and provide an affidavit setting out his recollection of the matters complained of.

c) The appellant has leave to apply to this Tribunal for further directions in particular any directions that may be required as to the Chairman's notes.

3 Within 21 days of the receipt of an amended notice of appeal and of Mr Bassett's affidavit, Ms Eady to make and provide an affidavit in response.

4 Such affidavits and any such statements to be shown to the Chairman for him to make any further comments.