Nwangoro v London Borough Of Southwark & Ors [1997] UKEAT 1219_96_1111

EAT
Nwangoro v London Borough Of Southwark & Ors
[1997] UKEAT 1219_96_1111 · 1997-11-11

JUDGE PETER CLARK :

The Appellant, Mr Nwangoro, was employed by the Respondent Council in its Internal Audit Department from 1991 until his summary dismissal on 3 July 1995. He is a qualified Accountant and is black of Nigerian ethnic origin.Prior to his dismissal he had presented three Originating Applications to the Industrial Tribunal alleging unlawful racial discrimination. Following his dismissal he presented a fourth Originating Application on 18 July 1995, alleging unfair dismissal, and followed that with a fifth application dated by him 21 March 1996 relating to the rejection of his internal appeal against dismissal by a panel of Councillors which heard that appeal on 26 January 1996.The consolidated applications came before an Industrial Tribunal sitting at London (South) under the chairmanship of Mr D. Booth over 10 days during August 1996. In a Reserved Decision promulgated with Full Reasons on 16 September 1996 the Tribunal dismissed all his complaints.Against that decision the Appellant appealed by a Notice settled by him and dated 24 October 1996. His grounds of appeal were extensive, running to some 16 closely typed pages.The appeal was listed for a preliminary hearing before this Appeal Tribunal on 26 March 1997. On that occasion he was represented by Solicitors and Counsel, Mr Limbrey, who appears before us today. Mr Limbrey presented amended grounds of appeal which were considerably more focused. In particular, the contention was raised that the Industrial Tribunal, having found that the original decision to dismiss taken by an Officer of the Council on 3 July 1995 was unfair on procedural grounds, the Appellant having been absent on sick leave at that time.The amended grounds of appeal alleged first, that the Tribunal was wrong in law to find that the internal appeal was a re-hearing capable of curing the defect identified at the dismissal stage. Secondly, it was said that the two employees of the Respondent whose statements were central to the decision to dismiss, namely Joyce Bewry and Ed Parry, were not made available for cross-examination at the appeal hearing despite requests to that effect by the Appellant, and that this was a breach of natural justice going to the fairness of the internal appeal hearing. Leave was granted for this appeal to proceed to a full hearing, limited to those amended grounds of appeal.By its Answer the Respondent contended that there was no evidence before the Industrial Tribunal that the Appellant, or anyone on his behalf, requested the attendance of witnesses for the purposes of cross-examination at the appeal hearing (see the Answer, paragraph 8.4)It followed that on the face of the pleadings before the Employment Appeal Tribunal there was a factual issue as to whether or not there had been evidence before the Industrial Tribunal from the Appellant that he had requested the presence of Bewry and Parry at the Internal Appeal for cross-examination purposes, as opposed to the closing submission to that effect made by the Appellant's representative before the Industrial Tribunal, Mr Harry, and recorded at paragraph 46 of the Tribunal's reasons.Alive to that issue, the Appellant's Solicitors wrote to the EAT on 26 September, requesting the Chairman's notes relating to the Appellant's alleged evidence to the Industrial Tribunal that he had requested the attendance of Bewry and Parry at the internal appeal hearing.On 1 October the Registrar wrote to the Industrial Tribunal Regional Secretary in these terms:
"I enclose a copy of the Notice of Appeal and Respondent's Answer in the above matter. The Registrar has asked that these be passed to the learned Chairman, Mr D. Booth, and that his attention be drawn to paragraph 8.4 of the Respondent's Answer and paragraph 3 of the letter dated 26 September 1997. She would be grateful if he could kindly let us have any Notes solely related to that issue."
A note signed by the Chairman and dated 13 October 1997 has now been received. It is clear that the Chairman misunderstood the nature of the issue on which he was being asked to comment. That note deals with an application by the Commission for Racial Equality, then acting for the Appellant, on 8 August 1996, two days before the Industrial Tribunal hearing commenced, for witness orders in respect of two potential witnesses called Dusu and Grey. The question which he was being asked, arising out of the issue on the pleadings, was this; did the Appellant give evidence before the Industrial Tribunal that he, or somebody on his behalf, had made a request to the Council's appeal panel that the witnesses Bewry and Parry attend the internal appeal hearing for the purposes of cross-examination? At this stage we should record that it is common ground between Counsel before us that there were factual issues raised between the Appellant and those two witnesses, Bewry and Parry.In these circumstances Mr Limbrey has applied to us today for an adjournment of this appeal for that enquiry to be answered by the Chairman. His application is not opposed by Mr Fletcher on behalf of the Respondent.We see no alternative to granting the adjournment. The resolution of that issue is central to the legal argument in this appeal. The Chairman is asked to answer the question which we have posed by way of comment and/or by reference to his notes if such evidence was given.We should add this; if it is the Chairman's recollection that no such evidence was given by the Appellant that will, it seems to us, undermine the whole basis of the appeal. If the Appellant then chooses to persist in the appeal he should understand that he will be at risk as to costs under the provisions of Rule 34(1) of the EAT Rules 1993.Accordingly we shall adjourn this appeal and direct that a copy of this Judgment be sent to the Chairman for his further comments.