United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS BROCKS (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us 2 preliminary hearings in the same matter, Kuttapan v The London Borough of Croydon and 6 other respondents. Of course, as it is a preliminary hearing the Respondents do not attend. The chronology of the matter is as follows.
2. On 29 January1999 Mr Kuttappan lodged an IT1 claiming sex discrimination, racial discrimination and victimisation against 7 respondents.
3. On 9 March all 7 Respondents countered that with their IT3.
4. On 20 September 1999 Mr Kuttappan lodged a long witness statement, a considerable document running to some 20 or 30 pages.
5. In September 1999 there was a 5 day hearing at the Tribunal at London (South) under the chairmanship of Mr A Bano sitting with Mr J Abrams and Mrs A Aziz. Even during the course of the hearing Mr Kuttappan raised complaints with the regional Chairman. He complained on 21 September and on 23 September. On 6 October, even before the decision of the Tribunal was known, the regional Chairman answered the complaints that had been made.
6. On 3 November 1999 the Tribunal's decision was sent to the parties. The application was dismissed. On 15 November Mr Kuttappan applied for a review, claiming there had been bias and prejudice in the conduct of the Tribunal and also complaining about the inclusion of Mrs Aziz as a member of the Tribunal.
7. The request for a review was declined by the Chairman alone. He said it had no reasonable prospect of success.
8. On 22 November, after a complaint by Mr Kuttappan, the Chairman added that he could not add further to the reasons which he had given for refusing a review.
9. On 3 December 2 Notices of Appeal were lodged by Mr Kuttappan. First, as to the substantive decision, Mr Kuttappan specifies the grounds of his appeal and with 1 small exception which we will have to refer back to, they exclusive relate to the conduct of the Tribunal in terms of bias and prejudice and the constitution of the Tribunal in the sense of its inclusion of Mrs Aziz.
10. On the same day, as I mentioned, there was a Notice of Appeal as to the review decision and there would seem to be no point of law arising in that, other than the complaint as to the behaviour and constitution of the Tribunal.
11. It is, of course, required of this type of complaint to the Employment Appeal Tribunal that the complainant should make an Affidavit as to the bias and prejudice or whatever else he is complaining of and on 14 February Mr Kuttappan lodged a substantial Affidavit as to bias.
12. On 11 April the Chairman, Mr Bano, replied to that, having been invited to comment. His comments do not in general go into detail but consist of a denial that there was bias, prejudice or any other misconduct on the part of the Tribunal or in its constitution.
13. On 20 April of this year Mr Kuttappan invited the Employment Appeal Tribunal to ask for more detail of that Chairman's response.
14. On 19 July the Chairman indicated he did not consider it appropriate further to comment.
15. On 24 July Mr Kuttappan asked the Employment Appeal Tribunal to request or require the Chairman to admit or deny each separate allegation made by Mr Kuttappan and on 26 July the Employment Appeal Tribunal indicated that that was a question best left to be raised here today.
16. That gives something of a flavour of the chronology of the matter. Leaving aside questions as to the constitution and conduct of the Tribunal at the hearing in September 1999, there is in our view, no point of law asserted or raised in the 2 Notices of Appeal, with one exception in the case of the appeal against the substantive decision.
17. Just dealing with the review side of things, we see no error of law in the Chairman's views as expressed so far, namely, firstly, that he could properly deal with it on his own as he felt that the review had no reasonable prospect of success , secondly, that if he did so conclude (as he did) there was no need for extended reasons to be given to that effect and thirdly, that the application for a review had no reasonable prospect of success on the basis that nothing had been raised but simply matters of bias and misconduct were alleged, matters which were already raised in the appeal to the Employment Appeal Tribunal. Fourthly, the Chairman said that in the circumstances he could not, in any event, add to the reasons that he had already given.
18. We see no error of law, (and, of course, it is only errors of law with which we are concerned) in those aspects of the Chairman's treatment of the application for a review. The application for a review asserted no lately-discovered facts, no newly-accounted authorities, no lately-considered arguments or anything that would not be in issue in the appeal in the substantive decision. So, with one exception, we can see nothing that Mr Kuttappan can hope to gain by persisting with an appeal against the decision not to review. That one exception is that he may wish to add the refusal of the review on the Chairman's part as a further instance of bias or prejudice on the Chairman's part that he should be entitled to rely upon in the main appeal.
19. It will, we apprehend, save paper and time and possibly costs if the appeal as to the review is dismissed even at this preliminary stage but on the basis that we give leave instead for an addition, which we would hope is kept brief, to the substantive Notice of Appeal, should Mr Kuttappan wish to add the further instance of bias or prejudice which we have described. There is no point of law in the review appeal independent of matters already in issue in the main appeal.
20. We have discussed this possibility of amendment to the substantive appeal with Miss Brocks of Counsel who has appeared under the ELAAS scheme for Mr Kuttappan today and she has had discussions with Mr Kuttappan, and as we understand it, as long as Mr Kuttappan is given leave to amend the substantive Notice of Appeal in the way that we have mentioned, there is no objection to the course we proposed namely, dismissing the appeal against the review decision even at this interlocutory or preliminary stage. We give leave to amend the Notice of Appeal in the main case within 14 days in the manner that we have indicated.
21. So much for the appeal in the review case; as to the main appeal, the appropriate procedure in such cases of complaint about conduct and so on the Tribunal's part, has recently been upon ruled in this Tribunal in the case called Facey v Midas Retail Security & Another where the decision was sent to the parties on 6 September of this year. The Facey case is well-known to Mr Kuttappan as he acted as a representative in it.
22. At pages 21 and 22 of the transcript there is a 7 point procedure set out, for cases of this kind. The particular steps described there are best dealt with by a Directions Hearing in the particular case concerned. If we were to require a Directions Hearing in the instant case, that would, of course, involve adjourning and giving notice to all 7 Respondents and consequent delay an expense.
23. With a view to avoiding the cost and delay in doing nothing today but simply adjourning to a Directions Hearing, we have discussed with Miss Brocks (who in turn has discussed the points with Mr Kuttappan) about our giving provisional directions even at this stage, following the Facey time table.
24. As a little prologue before we come to the directions that we gave we say this, that if any respondent wishes to move to set aside any of the provisional directions we are about to give, then that Respondent should do so within 14 days after receiving a transcript of this judgment and should do so by applying in writing to the Employment Appeal Tribunal, specifying which directions are opposed or resisted or sought to be varied and why.
25. If a respondent does not within that period so apply to the Employment Appeal Tribunal then the directions will, so far as concerns that respondent, be taken it then to have been ordered un-provisionally and finally at the expiry of that 14 days and that respondent will then not be in a position to overturn or vary the directions provisionally given, other than by way of appeal to the Court of Appeal.
26. If Mr Kuttappan wishes to overturn any of the provisional directions about to be given, he, too, is to have 14 days to do so after receiving the transcript, and otherwise he is to be in the same position as the respondents in relation to a challenge to or variation of the directions which we are about to give.
27. We apprehend there will not be a challenge on Mr Kuttappan's part because the directions have to some extent been discussed with him via Miss Brocks, but, for all that, he is to have the same ability to challenge or vary the directions that the Respondents have.
28. With that prologue to directions we make the following provisional directions. Firstly, within 14 days from today, Mr Kuttappan is to swear and file and serve on the Respondents, any further Affidavit, (in other words any beyond that which has already been sworn) which is intended to be relied on by his side as to the conduct and constitution of the Employment Tribunal at the hearing in September 1999. Secondly, within 49 days from today the Respondents are to swear and file and serve on Mr Kuttappan, such evidence as advised in answer to the Appellant's evidence.
29. It will, of course, in general be appropriate to limit the deponents to those attending at the hearing in September 1999 and who are thus able to speak of what then could be seen to have occurred, including Solicitors or Counsel, witnesses, parties and so on. Forty-nine days is a long period but it is intended to suffice to cover the difficulties that might arise on the Respondents' side because, of course, they have not had notice of what is going on, and would need some time to approach third parties such as possible witnesses, Counsel, Solicitors and so on who might have attended and be able to give evidence as to what occurred on the hearing in September 1999.
30. At the expiry of the period we have described the matter is then to be restored to the Employment Appeal Tribunal. In the ordinary way, directions hearings are for a judge alone rather than for a full 3 person panel so the matter is to be restored to the President alone for a Directions Hearing at which it can then be decided whether the Employment Appeal Tribunal needs to give yet further directions in relation to what I might call Facey (ii), which is described at the bottom of page 21 of the transcript in Facey and, generally, whether any, and if so what, further directions should then be given, which will, of course, include directions under Facey (iii) and the remaining paragraphs of Facey.
31. Those directions are given in a provisional manner with the ability for them to be set aside as we have described and also with the in-built consequence that if application is not made to set them aside as we have described, they will become un-provisional and final at the expiry of the periods we have mentioned and we reiterate that we give leave to Mr Kuttappan to vary or amend the Notice of Appeal at the main case in the manner that we have indicated.