United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Neither present nor represented
For the Respondents	Mr S McNeil (Solicitor)


 


HIS HONOUR JUDGE CLARK

1. This is an appeal by the Applicant before the Stratford Employment Tribunal, sitting over 4 days in September 1998, against that Tribunal's decision, promulgated with extended reasons on 8^th December 1998, dismissing her complaints of race and sex discrimination against the Respondent Bank. At that hearing the Applicant was represented by Mr Rudd of Counsel.
2. The appeal came on for ex-parte Preliminary Hearing before a division of the Employment Appeal Tribunal on which I sat on 19^th May 1999. The original grounds of appeal had been settled by the Appellant herself. At the Preliminary Hearing she was represented by Ms Gill of Counsel, who sought and was granted leave to file amended grounds of appeal.
3. Prior to the hearing the Respondents' solicitors had lodged a PHD form dated 15^th February 1999, in which no request for Chairman's notes of evidence was made. It seems that following service of the draft amended grounds of appeal on the Respondent, those solicitors on 18^th May faxed a letter to the Employment Appeal Tribunal requesting the whole of the Chairman's notes of evidence. That letter was not before the Employment Appeal Tribunal which sat on the Preliminary Hearing. No application for the Chairman's notes was made by Ms Gill on behalf of the Appellant. Consequently, no order for the notes was made on that occasion. The appeal was permitted to proceed to a full hearing based on the amended grounds of appeal. For present purposes, the thrust of the appeal was that the Tribunal failed to make adequate findings of fact in certain specified respects. At the same time that the Respondent's answer was lodged on 26^th August 1999 the Respondent's solicitors renewed their application for the whole of the Chairman's notes by letter of that date.
4. I ordered that a directions hearing be arranged before me to determine that question. Notice of today's hearing was sent to the parties on 21^st October 1999. Yesterday the Employment Appeal Tribunal received faxes from each party indicating their consent to an order for the Chairman's notes being made. I was not prepared to deal with the matter on that basis and Mr McNeil has attended before me today on behalf of the Respondent to argue the point. He submits that it is necessary to have the whole of the Chairman's notes of the evidence over the 4 days hearing in order to support the Tribunal's conclusion, expressed at paragraph 18 of their reasons, that there is no reliable evidence that Mrs Teo was treated in any different way to all the other members of staff irrespective of sex or race. The question for me on this application is whether or not the whole or part of the Chairman's notes of evidence are necessary for the proper disposal of the appeal. That raises two separate questions. First, is it necessary to order the whole of the Chairman's notes of evidence in order to dispose of the appeal? In my judgment it is not. The Respondent has the finding at paragraph 18 of the Tribunal's reasons, to which I have referred. It is for the Appellant to undermine the basis for such a finding. As I understand the Appellant's case as pleaded in the amended grounds of appeal, it is not that there was no evidence to support any particular finding by the Tribunal, but rather that the Tribunal has not made adequate findings of fact. It does not seem to me that the whole of the Chairman's notes are necessary for the purpose of disposing of the appeal on that basis, bearing in mind the argument that is to be advanced on behalf of the Respondent.
5. The alternative basis for application is set out in paragraph 7.3 of the Employment Appeal Tribunal practice direction. It is for the Applicant for the Chairman's notes, here the Respondent in the appeal, to explain why it is considered necessary to refer to the Chairman's notes in order to argue the points of law raised in the appeal, and it is for that Applicant to identify, first the issues in the Notice of Appeal or Respondent's answer to which the notes of evidence are relevant, and secondly, the names of the witnesses whose evidence is considered relevant, and thirdly, the parts of their evidence alleged to be relevant. Mr McNeil has addressed no argument to me today which breaks down the evidence given before the Tribunal and connects it for the purpose of relevance with the specific grounds raised in the amended Notice of Appeal. Accordingly I am not in a position to make a limited order on that basis. For these reasons I shall dismiss this application. I should add that the fact that the parties agree that the Chairman's notes of evidence are necessary for the purpose of the appeal is nothing to the point. It is for this Court to rule as to the necessity for such notes.