United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MESSRS R M BROUDIE & CO SOLICITORS 1-3 ST THOMAS STREET LIVERPOOL L1 8BW
For the Respondent	MESSRS SHAMMAH NICHOLLS SOLICITORS ST JOHN'S COURT 78 GARTSIDE STREET MANCHESTER M3 3EL


 


MR JUSTICE MORISON (PRESIDENT): This is rather an unusual case. An Employment Tribunal, following a 4-day hearing in January 1997 at Liverpool, concluded that the Applicant, Miss Sheena Khan had been discriminated against by a firm of solicitors and the Senior Partner on the grounds of her sex. They adjourned the question of remedies. What makes this Appeal particularly unusual is that in relation to those proceedings Miss Khan was subsequently prosecuted and convicted of a serious criminal offence for which she received a sentence of 6 months imprisonment reduced to 3 months imprisonment by the Court of Criminal Appeal. The offence of which she was found guilty was forgery, contrary to S.1 of the Forgery and Counterfeiting Act 1981. The particulars of the offence in the Indictment were that on a day between 10th January 1997 and 25th January 1997 the Applicant (Respondent to this Appeal) made a false instrument, namely a witness statement in the name of Carole Clarke, dated 14th January 1997, in that it purported to be made and signed by Carole Clarke, who did not in fact, make and sign it, with the intention that she could use it to induce somebody to accept it as genuine and by reason of so accepting it, to do some act to that person's or some other person's prejudice.

She had also been charged with obtaining a pecuniary advantage by deception. That was a count in the indictment which related to her falsely representing that she had qualifications and experience which she did not possess. In relation to that charge she was acquitted. She was also charged with using a false instrument, namely using the witness statement which the intention of inducing somebody to accept the same as genuine and by reason of so accepting it, to do some act to that person's or some other person's prejudice. She was acquitted of that count.

What the Appellants say in this case, is that that conviction demonstrates that in connection with the Employment Tribunal proceedings the Applicant had forged a document, pretending that it was a genuine witness statement made by the make of it when it was not, with the intention that she would use it to induce the Tribunal to accept it as genuine and thus, by accepting it, to enhance her claim against R M Broudie & R M Broudie & Co, the Appellants. What they say is, that in those circumstances, the Employment Tribunal should allow the Appeal because it would be wrong for the Applicant to benefit from a complaint in which she had acted in this manner. For her, it will be said that the witness statement was either not used at all or was barely used and made no difference to the outcome of the decision of the Employment Tribunal in any event. Therefore, it takes the matter no further forward, pointing out that she was acquitted of using the forged instrument.

It is clear from the Tribunal's Notes of Evidence which have been produced, that there was a reference to Carole Clarke's witness statement, but there may be a dispute as to the extent to which it was referred to if at all in the Employment Tribunal. That may (I say, I put it no higher than "may") be of relevance to the way the Appeal is determined and for that purpose, it is plain that there needs to be affidavit material from the solicitor who was present at the hearing on behalf of the firm of solicitors, setting out their recollection of what took place in relation to this particular document. That affidavit should be supplied to Miss Khan's present solicitors, so that they can obtain, if they wish, an affidavit from their predecessors who were acting for Miss Khan at the time and that the Employment Tribunal Chairman should have the opportunity of commenting on those affidavits.

It is also clear, it seems to me, that the Notice of Appeal needs to be re-amended to take account of the fact that there has been a conviction. At the time when the original Notice of Appeal was drafted there had been no conviction, nor at the time when the matter came before the Employment Appeal Tribunal, on 20th November 1997.

Accordingly, I make the following directions:

• There be leave to re-amend the Notice of Appeal to add reference, after paragraph 7(7)(a)(iv) a new paragraph (v), "The Applicant's conviction on 12 June 1998 of making a false statement contrary to Section 1 of the Forgery and Counterfeiting Act 1981 of making a false instrument and her sentence of 6 months imprisonment (subsequently reduced to 3 months by the Court of Appeal (Criminal Division))" should be granted.

• I also grant leave to amend, as asked in paragraphs 4 and 5 of the List of Amendments which it is proposed should be asked for.

• I also grant paragraph 1. I do not grant paragraph 2 or paragraph 3(v) in original form.

Those amendments must be made and a new consolidated Notice of Appeal must be filed with the Employment Appeal Tribunal within 14 days. Thereafter, the Respondent to this Appeal, Miss Khan, should have 21 days in which to enter an answer to the Re-amended Notice of Appeal. I direct that the Affidavit to which I have referred, be provided on behalf of the Appellants within 14 days. That the Respondent, Miss Khan, should have 21 days thereafter to file any affidavit in response and that the affidavits should be transmitted to the Learned Chairman for his comments. I also direct that within a period 6 weeks the Appellants provide copies of the summing up of His Honour Judge Slinger at the Crown Court at Preston, any sentencing remarks of his and the sentencing remarks of the Court of Criminal Appeal which reduced the sentence to 3 months. That documentation to be provided to this Court within, as I say, 6 weeks.

It is important that this case is listed for Hearing as soon as possible. It raises a point of some interest and should be marked as Category A, ½ day.

I make these orders by way of Variation of the Orders made his His Honour Judge Hargrove on 20th November 1997 and discharge the Orders that he made on that occasion, save that there be a stay of the award made at the Remedies Hearing until after the Full Hearing of this Appeal or further Order and that the parties lodge and exchange skeleton arguments within 21 days by 1st July 1999. If possible, this Hearing should come on in July.