United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRISTOPHER JEANS QC (of Counsel) Instructed by: Messrs Phoenix Nova Solicitors Ranan House 465 Kingsland Road London E8 4AE


 


MR RECORDER LUBA QC

1. This is the preliminary hearing of an appeal brought by Ms Hannah Sam against a decision of the Employment Tribunal held at London (South) in respect of their decision given on 20 June 2002 by which they dismissed her complaint of unfair dismissal. Their Extended Reasons are given in a decision entered in the Register on 16 December 2002.
2. The Notice of Appeal in this matter is dated 28 October 2002. The Notice of Appeal was settled by counsel then instructed by Ms Sam. She is however represented today, not by the same counsel, but by Mr Jeans QC who puts before us wholly revised grounds of appeal. We have exceptionally permitted him to rely on the revised grounds of appeal and to utilise those in order to demonstrate to us that his grounds are arguable.
3. We have had some hesitation in allowing that course to be followed not least because the Respondent's submissions for the preliminary hearing have been settled on the basis of the original Notice of Appeal. However, we have had from Mr Jeans QC an assurance that he has passed to counsel instructed by the Respondent his revised grounds of appeal and that the Respondent has therefore had an opportunity to make further submissions on them had the need been thought to have arisen. It is in those circumstances that we have permitted Mr Jeans to develop his new 'revised' grounds of appeal.
4. We direct that the revised grounds of appeal now stand as the substituted grounds of appeal in this appeal.
5. By his grounds Mr Jeans takes essentially two points. First, he criticises a decision made by the Employment Tribunal on the first morning of the hearing not to allow an application for an adjournment made on that morning by the then representative for Ms Sam. There is no reference to such an application having been made in the extended reasons given by the Tribunal and indeed one of the criticisms advanced by Mr Jeans is that the Tribunal deficiently failed to give any reasons for refusing the postponement sought on that date.
6. In the written submissions of the Respondent however, it is intimated that the application for postponement had earlier been made twice on precisely the same grounds and refused. That is not the way in which Mr Jeans indicated to us that the Appellant understands the fact of the matter. It seems to us that we have to be satisfied, and we are satisfied, that the ground of appeal relating to the refusal of adjournment is arguable on the submissions put forward by Mr Jeans and on his thumbnail summary of the facts. It is essential however that the Employment Appeal Tribunal which comes to determine this appeal should have the correct facts before it.
7. We therefore direct that the London (South) office of the Employment Tribunal furnish to the office of the Employment Appeal Tribunal any documents or notes it has on the file relating to this case which deal with applications to postpone made on and from 3 May 2002 up to and including the first day of the hearing. Further, we direct that the Chairman of the Tribunal be invited to provide any notes he has in relation to any such application or applications for postponement having been made. That will enable the new Employment Appeal Tribunal to deal with the matter of the correct factual basis.
8. Further we give liberty to both parties to apply for permission to put in, in witness statement form, their own accounts of the circumstances relating to the applications to postpone. We do not ourselves presently give such permission. It will be for a party who wishes to put in factual evidence to make an on notice application, in writing, for consideration on the papers as to whether such permission should be granted.
9. The second ground of appeal advanced before us in the revised grounds of appeal is essentially that the Tribunal has failed in its duty to provide adequate or sufficient reasons for the conclusions that it reached, and most particularly for the conclusions that it reached on the question of whether the employer could have been reasonably satisfied that the disciplinary charges made against Ms Sam had been made out. All we shall do in respect of that matter is to indicate that we are satisfied that that point is at least arguable and in those circumstances must go forward for a full hearing.