United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person
For the Respondents	Mr Andrew D Twineham Solicitor Messrs Jacksons Solicitors Innovation House Yarm Road Stockton on Tees TS18 3TN


 


HIS HONOUR JUDGE PROPHET

1. This is a full hearing in respect of an appeal by Mr Chigbundu in relation to a Decision by an Employment Tribunal sitting for three days in July 1999, at the Bristol Employment Tribunal, under the Chairmanship of Mr Berry. In a short judgment, that Tribunal dismissed his application. A notable feature was that the Tribunal made that Decision without requiring any evidence to be given by the Respondents. The judgment was promulgated on 20 July 1999.
2. Bearing in mind that that determination was made some three and a half years ago, something needs to be said about the delay in our hearing this appeal today. The circumstances are somewhat exceptional. Mr Chigbundu appealed the Employment Tribunal's Decision to the Employment Appeal Tribunal by a Notice of Appeal dated 9 August 1999. A preliminary hearing was fixed for 8 December 1999; by its nature, only Mr Chigbundu was entitled to attend that hearing, but Mr Chigbundu did not attend. The Employment Appeal Tribunal, Judge Pugsley presiding, considered that not allowing evidence from the Respondents, although exceptional, was justified in the particular case, and the Employment Appeal Tribunal decided that the appeal should be dismissed.
3. In the usual way, subject only to a possible further appeal to the Court of Appeal, that would have ended the matter. However, what happened then was that by a letter dated 18 March 2000, but received by the Employment Appeal Tribunal on 8 May 2000, Mr Chigbundu enquired about his appeal. He was advised that it had been disposed of, and the relative documents sent to him in December 1999; further copies were also supplied.
4. Judge Pugsley decided, however, to hold a further review hearing, with the same lay members, on 21 November 2001. The outcome of that hearing, with Mr Chigbundu only present, was that the original Order was set aside and the case allowed to proceed to a full hearing. Thus it has come about, after a further year, that we are hearing this appeal today. We have heard from Mr Chigbundu in person, and Mr Twineham, solicitor, representing the Respondents.
5. Having considered carefully what we have heard, we have come to the conclusion that unfortunately, notwithstanding the delays which have occurred, and, indeed, Mr Twineham's valiant efforts to persuade us to the contrary, there is no alternative to us other than to allow this appeal and remit the case to a differently constituted Employment Tribunal for rehearing.
6. We have taken into account Mr Twineham's submissions in respect of prejudice to the Respondents, consequent upon the delays, but that has to be balanced against the interests of the Appellant in having his complaint of race discrimination properly dealt with. The Employment Tribunal was, in our view, wrong to have accepted a "no case to answer" submission on the recognised authorities.
7. It is apparent from the content of Mr Chugbundu's witness statement to the Employment Tribunal that there were matters in respect of which he should have had the opportunity of questioning the Respondents' witnesses. In the particular circumstances, the action of the Employment Tribunal in denying him that opportunity amounted to an error of law.
8. The Reasons also appear to this Tribunal to fall short of what is usually described as the Meek test, that is to say in terms of setting out, by way of clarification, the issues which the Tribunal had to deal with, the relevant law and a proper statement of the conclusions in respect of the specific allegations of race discrimination which Mr Chigbundu was wishing to put before the Tribunal; all that, in such a manner, that the complainant should be clear as to why he had won or lost.
9. It is understandable, no doubt, that the evidence before the Tribunal in respect of the Complainant's performance at an early stage in his teaching career, led the Tribunal to conclude that the Complainant was markedly failing to carry out his duties as a teacher to the standards required. However, the relevant issues to be considered by the Tribunal in respect of alleged racial discrimination required more than findings in that respect.
10. We would add that it would be helpful if, before the rehearing, there is further clarification as to what Mr Chigbundu intended to have considered by the Employment Tribunal, under the heading of "victimisation" in his Originating Application.
11. Accordingly, as already indicated, this appeal is allowed, and the case remitted to the Bristol Employment Tribunal for rehearing before a differently constituted Tribunal.