United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G HODGKINSON (Solicitor) Appearing under the Employment Law Appeal Advice Scheme


 


HIS HONOUR JUDGE A WILKIE QC

1. This is an appeal by Milko Johnson, which has been listed today for a preliminary hearing. Mr Johnson has made a claim against Shell International Trading & Shipping Company Ltd, claiming race discrimination, arising from his failure to be shortlisted for a job as Oil Trading Contracts Commercial Adviser for which he applied in June 2000. Mr Johnson's application was heard by the Employment Tribunal, London Central, on 12 and 13 June of last year, and on that occasion, he represented himself in person, the Respondent being represented by Ms D Rose of Counsel.
2. The Employment Tribunal dismissed his application and Mr Johnson launched an appeal against that dismissal, an appeal received by the Employment Appeal Tribunal on 16 August of last year, in which Mr Johnson indicated that he was still acting for himself. This morning, we were supplied with a document which is headed "Appellant's Skeleton Argument" which sets out a short chronology and then a series of points of argument. It gives all the appearance of being a professionally prepared Skeleton Argument, but it is not in the name of Counsel, but it is in the name of Mr Johnson, Appellant in person, giving his address. Mr Johnson has signed that document with today's date.
3. Mr Johnson has the benefit of representation this morning by Mr Hodgkinson under the ELAAS scheme, and rather than arguing the substance of the appeal, whether based on the Skeleton Argument or otherwise, Mr Hodgkinson has applied for this hearing to be adjourned, on the footing that Mr Johnson understood, and expected, that he would be represented today by the author of the Skeleton Argument, and was surprised to attend this morning to find that he was not so represented.
4. Mr Hodgkinson has given us considerable chapter and verse as to the engagement of solicitors, Kerr & Co, of Hemel Hempstead, who in turn, instructed Counsel. It is apparent that those solicitors who were first instructed on 15 January of this year, have not placed themselves on the record as acting for Mr Johnson, and it does appear that the Skeleton Argument document is one which has been prepared by Counsel, not with a view to Counsel presenting the case before us, but with a view to assisting Mr Johnson in presenting his own appeal.
5. From those circumstances, we are satisfied that solicitor and Counsel had no belief that they were engaged to represent Mr Johnson at his hearing. We, of course, accept what Mr Hodgkinson says from Mr Johnson, that he did expect to be represented here, and therefore it must be that there is simply a misunderstanding between him and his intended legal representatives.
6. Accordingly, Mr Hodkinson has asked for an adjournment in order to enable Mr Johnson to have the representation which he believed he had engaged. We have considered this application very anxiously. Essentially, this is because the preliminary view which we have taken on reading the papers in this case, and on perusing the Skeleton Argument, is that whoever represented Mr Johnson in this appeal would have some considerable difficulty in demonstrating that there was any error of law on the part of the Employment Tribunal, or that their findings of fact were perverse.
7. Of course, that is not a final view to which we have come, because we have yet to hear any argument on the matter, but we are very anxious that Mr Johnson may well have already expended substantial sums of money engaging legal assistance, and if he is to be represented on the next occasion, no doubt he will have to spend substantially more sums of money, and we simply wish Mr Johnson to be aware of the possibility that even with legal representation, his case may not be a terribly strong one.
8. However that may be, we are satisfied that Mr Johnson intended, having come into employment and obtained the means to pay for it, to have had legal representation this morning. He does not have the legal representation of his choice; this is his appeal, and therefore, we feel constrained to grant leave to grant the adjournment which Mr Hodgkinson asks for.
9. However, we do not think that the hearing of this appeal should go off into the distant future without any directions to focus minds, and therefore, our directions are that a decision will be taken when to list this case next Monday, that is to say on 11 February. If, by that time, Kerr & Co, who are on the record as acting for Mr Johnson, then of course, listing arrangements will be made, by reference to them in the normal way. But if, by next Monday, Kerr & Co are not on the record as acting for Mr Johnson, and he remains acting in person, then the listing of the matter will proceed in any event.
10. Whether Mr Johnson does have legal representation on the next occasion, and whether that is in the form of ELAAS assistance or his own legal representatives, will of course ultimately be a matter for Mr Johnson's decision. So we will adjourn this case on those terms.