United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S RAHMAN (of Counsel) Instructed by: Messrs Chase Christopher Roberts 257 Grays Inn Road London WC1X 8QT
For the Respondents	MR M BARKLEM (of Counsel) Instructed by: Messrs Mills & Reeve Francis House 112 Hills Road Cambridge CB2 1PH


 


JUDGE CLARK

1. This meeting for directions arises in the following circumstances. The Appellant, Mrs Igbolekwo, was employed by the Respondent University and its predecessors as a Senior Lecturer from July 1986 until her dismissal effective on 13 June 1998.
2. Before the expiry of her notice of dismissal she presented an Originating Application to the Bedford Employment Tribunal on 5 June 1998 complaining of unfair dismissal and unlawful racial discrimination.
3. The claims were resisted and came on for hearing before an Employment Tribunal chaired by Mr P Robjant, sitting over 7 days in November 1998 and May 1999. By a reserved decision with extended reasons dated 3 June 1999 that Employment Tribunal dismissed both the Appellants' claim.
4. Against that decision the Appellant appealed by a Notice dated 13 July 1999. That Notice contained some 20 grounds of appeal, settled by Mr Rahman who did not appear below.
5. The appeal was listed for preliminary hearing in the usual way before a division presided over by Judge Pugsley sitting on 12 November 199. Although listed as an ex parte hearing, Mr Barklem, who had appeared on behalf of the Respondent below, was in attendance, and I see from the short judgment delivered by Judge Pugsley that Mr Barklem was, unusually, invited to address the Court.
6. In addition to the Notice of Appeal the Employment Appeal Tribunal had before it a skeleton argument prepared by Mr Rahman for the purposes of the preliminary hearing.
7. Judge Pugsley observed, in his ex tempore judgment, that the grounds of appeal were "about as precise as spraying a field with a moving shotgun." He pointed out that it was the task of the Employment Appeal Tribunal at a preliminary hearing to identify whether the appeal raised an arguable issue of law to go to a full hearing and he made the general comment that having looked at the grounds of appeal and at the skeleton argument, some of the propositions of fact were, the Employment Appeal Tribunal suspected, wrong and certainly some of the propositions of law were a dubious weight.
8. Nevertheless, the Employment Appeal Tribunal went on to identify 3 arguable points of law to go forward to a full hearing. Following the preliminary hearing Mr Rahman was invited to and did formulate amended grounds of appeal which reflected those 3 grounds only in substitution for the original 20 grounds.
9. Those grounds relate only to the Employment Tribunal's finding that the unfair dismissal claim failed. The appeal against the finding of racial discrimination was withdrawn.
10. The amended grounds of appeal, 3 in number, are dated 12 November 1999 and signed by Mr Rahman.
11. On 21 January 2000 solicitors for the Appellant wrote to the Registrar enclosing draft re-amended grounds of appeal which added further grounds 4 and 5. The re-amended grounds are also signed by Mr Rahman. The solicitors formally sought leave to re-amend the grounds of appeal in those terms and asked for a hearing, since they understood from the Respondent's solicitors that such application was opposed.
12. Confirmation of the Respondent's opposition to the further amendment is contained in their solicitors' letter to the Registrar dated 26 January 2000.
13. The matter was placed before the President, Mr Justice Lindsay who directed that an application be made for directions, with an affidavit from the Appellant's side in support of the application for leave to re-amend, coupled with a warning as to costs. Those directions were contained in a letter to the Appellant's solicitors copied to the Respondent's solicitors, dated 3 February 2000.
14. Pursuant to that direction the Appellant filed an affidavit sworn by a trainee solicitor, Marian Amory, who had attended Mr Rahman at the preliminary hearing on 12 November 1999. It was sworn on 18 February 2000. Two points arise. First Ms Amory states that at the preliminary hearing Mr Rahman submitted that the Employment Tribunal relied on or admitted inadmissible evidence, namely a letter from Barton Nursing Home to the Appellant dated 22 January 1998. Secondly, it is said that following submissions Judge Pugsley and his colleagues retired and on their return the learned Judge announced that he had telephoned the Employment Tribunal Chairman whose decision was under appeal.
15. I shall deal first with the letter of 22 January 1998. It is to the relevance and indeed admissibility of that letter before the Employment Tribunal that grounds 4 and 5 of the proposed re-amended grounds of appeal are directed.
16. The short answer, in may judgment, is that it is clear, from Ms Amory's affidavit and from paragraph 8 of the skeleton argument put before Judge Pugsley's tribunal at the preliminary hearing and affirmed this morning by Mr Rahman, that the points now sought to be taken by way of further amendment were considered and rejected by the Employment Appeal Tribunal at the preliminary hearing. I shall not in these circumstances allow those points to be revived at the full appeal hearing. The application for leave to re-amend is accordingly dismissed.
17. The second point concerns the suggestion that Judge Pugsley telephoned the Employment Tribunal's Chairman, Mr Robjant. I have before me an affidavit sworn by Judy Roy, the Respondent's solicitor who instructed Mr Barklem at the preliminary hearing, dated 24 May 2000, in which it is stated that neither she nor Mr Barklem have any recollection of Judge Pugsley saying at the preliminary hearing that he had telephoned the Employment Tribunal's Chairman. Neither does Judge Pugsley have any recollection of having done so, he having been recently supplied with copies of the affidavits both of Miss Roy and Ms Amory and I have his written comments on those affidavits. I am bound to say it would be an unusual course to take, that is to telephone a Chairman whose decision under appeal to this tribunal and one which I would expect the learned Judge to have recalled if it had occurred.
18. In these circumstance I am not satisfied that Judge Pugsley did telephone the Chairman, however, even if he did it seems to me that I have no power to set aside the outcome of the preliminary hearing as Mr Rahman invites me to do. His remedy, if any, can only lie by way of appeal to the Court of Appeal with the appropriate permission.

COSTS

19. Mr Barklem makes an application for the Respondent's cost in this application, under Rule 34(1) of the Employment Appeal Tribunal Rules. He submits that this directions hearing and the events which preceded it were unnecessary and that it was unreasonable conduct on the part of the Appellant in conducting these appeals proceedings. Mr Rahman submits that he was entitled to bring the two matters with which I have dealt in my judgment before the Employment Appeal Tribunal rather than simply to apply for permission to appeal against the original preliminary hearing judgment to the Court of Appeal. I have no hesitation in accepting Mr Barklem's submission.
20. It seems to me that this application was wholly misconceived; it falls within the provisions of Rule 34(1) and a costs order is appropriate. That said, I am told that the Appellant is legally aided. There has been some debate before me as to the appropriate form of order. In the old days it was simply ordered that the legally aided party pay the other party's costs, not to be enforced without leave of the court. Mr Barklem has brought to my attention a new formulation in the following terms; that the Appellant do pay the Respondents cost to be assessed but determination be postponed until further order. Mr Rahman has reminded me of the provisions of Section 17 of the Legal Aid Act 1988, and points out that the Appellant is entitled to the protection of a Legal Aid Certificate, so that any order for cost should be subject to assessment of her means. I am satisfied that the form of order proposed by Mr Barklem is the correct one and I so order in relation to the costs in this application only. However, I wish to make it clear, as Mr Rahman submits, that because the Appellant is Legally Aided that order will not be enforced without there being an assessment of her means and further order by this tribunal.