United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S FLETCHER (of Counsel) Instructed by: Ms Lyn Meadows London Borough of Southwark Head of Legal (Contract) Services 30-32 Peckham Road London SE5 8UB


 


JUDGE PETER CLARK

1. This is an appeal by the London Borough of Southwark, the Respondent to a complaint of racial discrimination/victimisation brought by the Applicant, before the London South Employment Tribunal, Mr Afolabi. By a decision promulgated with extended reasons on 4 July 2000 a Tribunal chaired by Mr I MacInnes found:

(1) that the Respondent directly discriminated against the Applicant on grounds of his race by not appointing him to the post of Auditor at Grade SO2 in 1990. Although that complaint was some 9 years out of time they nevertheless permitted the matter to proceed under the just and equitable provision contained in section 68(6) of the Race Relations Act 1976;

(2) that the Respondent treated him less favourably than two white comparators, Mr Jordan and Ms Draper, in terms of a Hay grading exercise carried out in April 1999.

2. A further complaint of direct discrimination/victimisation in connection with the Applicant's transfer to an outside contractor was dismissed.
3. The appeal takes broadly three lines of attack:

(1) against the Tribunal's decision to extend time for bringing the 1990 complaint

(2) against a finding that the Applicant should have been appointed to Grade SO2 in 1990

(3) against the finding that the Hay grading exercise in 1999 involved unlawful discrimination against the Applicant.

This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law.

4. Within the third issue raised in the appeal, the Tribunal's finding on the discriminatory effect of the Hay grading exercise, a discrete point is taken relating to natural justice.
5. It is contended that the Tribunal's ultimate finding on this issue involved their upholding a complaint which was not made by the Applicant and in respect of which the Council was given no adequate opportunity to call evidence and make submissions.
6. If made out, that raises a point of appeal which may lead to the Tribunal's finding on this part of the case being vitiated. See Laurie v Holloway [1994] ICR 32.
7. Our Practice Direction is clear. Paragraph 9 provides that where a complaint of procedural irregularity at the hearing below is made out it must be sufficiently particularised in the Notice of Appeal. Thereafter the Registrar will usually direct that the allegation is supported by an affidavit, a copy of which will then be forwarded to the Chairman for his comments and to the opposing party. That procedure has not been followed in this case.
8. We have raised this point with Mr Fletcher and he submits, we think sensibly, that if at this stage, this Division feels that the matter should proceed to a full hearing on the basis that arguable grounds of appeal have been raised, then the procedural difficulty may be overcome between this hearing and the full appeal hearing.
9. The alternative would be to adjourn this preliminary hearing so that the necessary procedural steps in this Tribunal can be taken. We accept that submission. We are satisfied that the appeal should proceed to a full hearing on all three issues raised.
10. So far as the natural justice point is concerned, we shall direct that within 21 days of today, the Council shall file an affidavit or affirmation, setting out the circumstances alleged in support of the case, particularised at paragraph 6(d)(i) - (iii) in the Notice of Appeal, and further developed at paragraphs 11 and 13 of Mr Fletcher's skeleton argument and in oral submission before us.
11. Once lodged, copies of the Notice of Appeal and the Appellant's affidavit will be sent to the Chairman for his comments. Copies of those documents will also be sent to the Applicant, M Afolabi who is present in Court today. It will open to him to file an affidavit in response to that filed by the Council within 21 days of his receipt of their copy affidavit.
12. Upon completion of that process the case will be listed for a full hearing, time estimate one day, Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with the EAT at the same time.
13. We shall leave open the question of Chairman's Notes of Evidence until after the Chairman's comments on the Appellant's affidavit have been received. There will be liberty to either party to apply, if necessary, for Chairman's Notes of Evidence. Any such application can be made in writing marked for my attention.
14. We remind the parties of the provision in our Practice Direction which requires any such application to identify, specifically, the witnesses whose evidence is sought, those parts of their evidence which relate to the particular issue in the appeal for which Notes of Evidence are sought, and a statement as to the relevance of that evidence to that issue or those issues.