United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JONATHAN SWIFT (of Counsel) Messrs Nabarro Nathanson Solicitors 1 South Quay Victoria Quays Sheffield S2 5SY
For the Respondent	MR M MCDONOUGH (Solicitor) Messrs McDonough & Associates Linburn House 342 Kilburn High Road London NW6 2QJ


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I think there should be a request made for chairman's notes as early as practicable. Mr McDonough thinks that to give the parties a further period during which they can agree the accuracy of the notes of evidence that are already canvassed between the parties would be a good idea, but there is nothing to preclude them continuing to seek to agree, even whilst chairman's notes are awaited, and indeed, even once the chairman's notes are received, if the parties can either, with or without the chairman's notes, agree what was said below/done below, well, so much the better. I do not see that there is any advantage in giving a further period and only at the end of that further period asking for the chairman's notes. The chairman's notes need to cover all oral evidence and all witness statements produced to the Employment Tribunal below so far as the same relate to the alleged memorandum, headed 'Centuryan Limited Internal Memorandum' to Nikki - OCS Maidstone from Arnold Bradley, who, in the office organisation of Centuryan, in the ordinary way would have been expected to produce an internal memorandum of that nature. Who in fact produced this note, or did not produce it? Any evidence about what it meant? Who handled it, in what sequence, either on the Kelly side or the Centuryan side? Any evidence as to whether it was fabricated or not? Any other evidence going to the credibility of Mr Bradley in the course of the Employment Tribunal and, in particular, any admissions made by him that he had been inaccurate or wrong at other stages of his evidence? How the memorandum came into the possession of Ms Kelly and when? Generally, any other evidence that reflected on dealings with the memorandum or with the credibility of Mr Bradley's evidence either in relation to it or generally. That request should go off to the chairman as soon as practicable. As I say, there is no reason why the parties should not continue efforts to agree although, no doubt, now the likelihood is that they will await the receipt of the chairman's notes. Once the chairman's notes are received, if there are still residual doubts - because quite often a chairman's notes are not as full as one side or another might have hoped - the parties are still, of course, at liberty to discuss and seek to agree precisely what was said and done.
2. Chairman's notes apart, Mr Swift and Mr McDonough, is there anything else that I can usefully deal with today?

Sir, I think for my part only, if you would formally make an order allowing the amendment to the Notice of Appeal.

Yes, well, that is not opposed, as I understand it, Mr McDonough. I will allow the Notice of Appeal to be amended. That was canvassed at the last hearing and I think agreed, subject to prospective objection, and there has been no prospective objection. Have we got a time estimate for the listing of the thing when it comes back?

I think, the estimate we were given last time was 1 day, category C

I think it ought to be B rather than C and would it take a whole day?

Sir, there are now two issues, the original issue and the issue to be added. It seems to me it might be safest to allow a day for it. I can see that depending on what is in the chairman's notes, it could mean that that issue either becomes a lengthy one or becomes a very short one.

It's a fairly short point really; what you are saying is that there was a crucially important topic that just is not made mention of whatsoever in the decision. That is really the case is it not?

Yes sir, and I would hope on that point that the chairman's notes will speak for one or the other of the parties.

Yes, but on that basis it is hard to see why half a day would not suffice. There is no great tussle of law on the subject. One or other of you will point to Meek v City of Birmingham and that is about it on the law. Then the simple issue is, was the topic sufficiently raised below that it really should have been mentioned in the Extended Reasons and was it important enough that, really, a decision that does not mention it is inadequate. Not a very long sort of argument – I would have thought half a day would suffice.

Sir, yes, I expect it probably would. The other point also is a relatively self contained point as to whether or not the reason given by the Tribunal supports a conclusion of victimisation.

Well, they are not unrelated, to some extent, are they? I think half a day should suffice and it will also have the modest benefit, perhaps, that you get an earlier hearing. So category B, half a day, and the request for chairman's notes that I have mentioned. Skeletons not less than 14 days before the date fixed for the hearing. Was there much paper produced below?

Not a tremendous amount Sir. I think there were 12 documents.

The EAT is going to need whatever paper was laid before the …

There was a bundle produced by the other side but most of the bundle replicated the ..

I think I will direct that the bundle of papers to be laid before the EAT is to be agreed between the parties not less than 14 days before the hearing and supplied to the EAT - 3 copies - not less than 10 days before the hearing.