United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Dr A Seray-Wurie Hackney African Organisation Legal and Welfare Services Africana Hall 22 Ashwin Street London E8 3DL


 


MR RECORDER UNDERHILL QC

1. We propose to allow this appeal to proceed to a full hearing. The Tribunal rejected the application for a review on the basis essentially of two findings of fact:

1) that Balogun Kirvan who we will refer to as 'BK'was still on the record;

2) that BK had received notice of the hearing on 6 September.

Since it is common ground that the Appellant personally never received such notice, it would follow that if BK had received such notice they failed to pass it on.

2. The first of those two findings was the more important because arguably, even if BK had received notice of the hearing, but the Appellant was not their client, they would have been within their rights not to pass the information to her - though of course, in practice, one would have expected that they would have done so.
3. The Tribunal were sceptical about a letter from BK which was before them, but not unfortunately before us, in which it was claimed that BK had notified the Tribunal that it was no longer instructed. The Tribunal was sceptical because BK's letter did not state when they had written to the Tribunal nor produce a copy of the letter. But this morning Dr Seray-Wurie who has appeared for the Appellant and been most succinct and helpful, has produced a copy of that letter. The point could of course be taken that the letter should have been produced at the original review hearing and that it is too late to produce it now. But Dr Seray-Wurie contends that the Appellant had no reason to suppose that the letter would not be on the Tribunal file, or that there was any issue as to it having been sent; and that when it became clear that there was a problem of this nature the Appellant sought an adjournment which was refused, notwithstanding her willingness to pay the costs. It seems to us at least arguable that this matter has not been fairly disposed of, despite the care which the Tribunal took.
4. There are also some other indications, which it is unnecessary to go through at this stage, that it should at least arguably have been apparent to the Tribunal that BK were no longer on the record. We would mention only one such indication, which is that it was the Appellant personally, not BK, who wrote to the Tribunal on 2 June pressing for a hearing date, and that when the Tribunal next wrote to say that a hearing would be fixed that letter was, although sent to BK, copied to her personally. It was only the letter notifying the date of the hearing that was sent to BK without being copied to her in addition.
5. In any event, we are not satisfied that this is a matter which can be fairly disposed of summarily.
6. Since the Tribunal file was before the Chairman at the review hearing, and its contents formed the principal basis of the Tribunal's Decision, it seems to us that justice can only be done if the Appeal Tribunal and the parties have at the full hearing of this appeal copies of the relevant parts of the Tribunal's file - that is to say, all letters and records of other (for example, telephone) communications between the parties over the currency of this case. We direct that copies of the file to that extent be supplied by the Tribunal.
7. It would also be important, if possible, for the Appeal Tribunal at the full hearing to have before it the letter from BK of 18 September 2000, which was before the Employment Tribunal at the review hearing. From what we understand from Dr Seray-Wurie, that letter may be found in the Tribunal file; but in case it has gone astray, we would advise, although we cannot direct, that the Appellant seeks a further copy of it from BK's files, where we would expect a copy still to be retained.
8. It would be prudent, though we do not direct, that the Appellant supply witness statements, certainly from herself or her representative describing what occurred at the hearing and perhaps from Mr Hatrick of BK. We note that in his recent letter of 18 May 2001, Mr Hatrick offers to supply such a witness statement, and, while we are sure that the Appeal Tribunal would give weight to a formal letter from a solicitor such as the letter of 18 May 2001 in circumstances where he has offered a formal statement that might be the better course to follow.
9. As a matter of prudence, though we do not expect any serious point of controversy to arise, we will direct that any witness statement of this type produced by the Appellant be copied by this Tribunal to the Chairman of the Tribunal for his comments and copied to the Respondent's representatives. Any such witness statements are to be provided within twenty one days of the receipt by the Appellant of the copy materials on the Tribunal's file.
10. In case we have not made this sufficiently plain, the sequence of events will be:

First, request to the Tribunal for copies of the relevant parts of the file. Secondly, any witness statements within twenty one days after receipt of copy documents from the files. Thirdly, copies of such witness statements to be sent to the Chairman and the Respondent's representatives for comment. The Respondent's representatives are to reply within twenty one days - I do not think it is our practice to put any deadline on the Chairman. The parts of the file to be adduced would be copies of all letters, and records of other communications, for example telephone communications, between the Tribunal and the Appellant or her representatives.

We put this case in Category B, with an estimate of three hours.