MS J GRAHAM v LONDON BOROUGH OF BRENT & OTHERS [1999] UKEAT 1208_98_2307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1208_98_2307Case No Appeal No. EAT/1208/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J GRAHAMAPPELLANTLONDON BOROUGH OF BRENT & OTHERSRESPONDENT
Before
His Honour Judge Peter ClarkDate 23 July 1999
[1]APPEARANCES For the Appellant MR N DUGDALE (of Counsel) For the Respondents MS M THOMSON (Representative) JUDGE CLARK: This hearing for directions has been convened by the Registrar in the following circumstances. The Appellant, Ms Graham, was employed by the Respondent, Brent Council, from July 1989 until her dismissal effective on 4 June 1997. By an Originating Application presented to the London North Tribunal on 29 August 1997, she complained of unfair dismissal and both direct race and sex discrimination. Her case was heard by a full Employment Tribunal chaired by Mrs J R Hill, sitting with Mrs R A Hunter and Dr S N Deshmukh over seven days in April and July 1996. During that hearing, she was represented by an experienced Trade Union Official, Mr Stuart Barber. By a decision promulgated with extended reasons on 5 August 1998, the Tribunal dismissed all Ms Graham's complaints. Against that decision she entered a Notice of Appeal to the Employment Appeal Tribunal dated 15 September 1998.[2]The grounds of appeal settled by her ran to 21 pages. Included among her complaints were allegations of misconduct in the proceedings by the Tribunal (the misconduct complaint). In support of the misconduct complaint she swore and filed an affidavit with exhibits dated 18 November 1998. The Chairman responded to the matters raised by the Appellant in a letter dated December 1998.[3]The appeal came on for ex-parte preliminary hearing before a division presided over by Judge Levy QC on 29 March 1999. On that occasion, she was represented by a professional advocate under the ELAAS pro bono scheme, Mr Wilson. In a short judgment given on that occasion, Judge Levy said this at page 1 F-G of the transcript:
"We have had the advantage of hearing Mr Wilson from the Employment Law Appeal Advisory Scheme for the appellant today and he has satisfied us that there are points to go forward. Mr Wilson submits, and we think that it is arguable, that on an appeal Ms Graham should be permitted to argue that there is an element of perversity in the decision reached on unfair dismissal and race discrimination; and that there is an issue, perhaps, for bias to be raised on all three issues. Further, Mr Wilson suggests that when the papers have been further analysed there may be an arguable case that there was a misdirection on one part of the law which should go forward to appeal."
[4]The learned Judge then went on to give the following directions for the further conduct of the appeal:(1) the Appellant was allowed to submit an amended Notice of Appeal within 21 days, which was to be sent to the Respondent for their comments,(2) she was to file a further affidavit within 14 days of the amended Notice of Appeal dealing with her allegations of bias. The Chairman's comments and those of the side members if appropriate would then be obtained,(3) a limited order for Chairman's notes was made,(4) the parties were asked to agree whether or not there was evidence or consultation with the Trade Union as found by the Tribunal at paragraph 12(d) and (f) of their reasons. Failing agreement further directions would be required(5) the case was adjourned to come on for an inter-partes directions hearing after those steps had been taken.[5]Consequent on those directions, the Appellant has lodged a draft amended Notice of Appeal dated 17 April which I understand to be in addition to rather than substitution for the original grounds of appeal, and a supporting affidavit sworn on 19 April. The Respondent has filed an affidavit in reply sworn on 18 May 1999 by their legal advisor, Ms Meredith Thomson, who has had conduct of the case. The Chairman has provided further comments after consulting with at least one of the lay members, Mrs Hunter.[6]That exercise having been completed, the Registrar wrote to the parties on 27 May 1999, purposing that the appeal be set down for a full hearing unless a meeting for directions, as indicated in Judge Levy's judgment, was required. Pausing there, I note that the order drawn up by this Tribunal on 29 March 1999 specifically states "the Tribunal orders that the appeal be allowed to proceed to a full hearing in accordance with the judgment of the Employment Appeal Tribunal". On 2 June Ms Thomson wrote asking that a directions hearing be convened in order that the issues in the case be clarified.[7]The purpose of the ex-parte preliminary hearing procedure is to allow the Employment Appeal Tribunal to identify precisely which, if any, points raised in the Notice of Appeal raise arguable questions of law which ought to proceed to a full inter-partes hearing and then to give directions for the future conduct of the appeal.[8]I confess that for myself and for the purposes of this directions hearing, having read the original grounds of appeal and now the amended notice, I am quite unable to discern any arguable point of law. I return to the judgment of Judge Levy. It is not clear to me, or indeed to the parties, particularly the Respondent, what element of perversity in the Tribunal's decision on unfair dismissal and race discrimination arises for argument at a full hearing, or what issues of bias are to go forward, or what misdirection on what part of the law is to proceed. Or indeed, whether the Tribunal on the last occasion was clearly deciding the appeal was arguable and should go forward, particularly in circumstances where having given directions for the conduct of the case, the learned Judge concluded that the case should be adjourned to come on for an inter-partes directions hearing once the further steps had been taken.[9]My difficulty is that today I am sitting alone on a directions hearing. It would not be right, and I doubt whether I have power, to dismiss all or any grounds of appeal sitting without lay members. On the other hand, I regard it as wholly unsatisfactory to direct that the appeal be listed for a full hearing as presently constituted. All of these difficulties have been politely advanced by Ms Thompson on behalf of the Respondent.[10]However, help is at hand in the shape of Mr Dugdale of Counsel, who appears before me today on an emergency legal aid certificate. He accepts realistically on behalf of the Appellant that the current state of the original Notice of Appeal and further grounds of appeal is less than satisfactory. He does not oppose this course, that I should direct that the matter be restored for an ex-parte preliminary hearing held to determine what, if any, points of law arise for a full inter-partes hearing. He has explained to me the legal aid position. Ms Graham has an emergency certificate limited to taking the opinion of Counsel. If that opinion is favourable, no doubt Counsel will formulate precise arguments in law for consideration at the restored preliminary hearing. If on the other hand as a result of Counsel's opinion legal aid is not extended, then at the very least at the restored ex-parte preliminary hearing the Appellant will have the opportunity to take advice from and be represented by a professional lawyer under the ELAAS scheme. Ms Thomson does not oppose that course. She is concerned to minimise the costs to the taxpayers of Brent in defending these proceedings.[11]In these circumstances I shall give the following directions. First, at page 2 F-G of Judge Levy's judgment, there is a reference to the Tribunal's finding as to consultation with the Trade Union at paragraph 12 (d) and (f) of the Tribunal's Extended Reasons. The hope was expressed that the parties may be able to agree whether or not that finding was supported by evidence. So far no agreement has been reached. In these circumstances, I shall direct that the Chairman be asked to provide her notes in relation to the evidence which it is said supports those findings.[12]Secondly, I shall direct that this case be listed for an ex-parte preliminary hearing. The listing should provide for half a day's argument – that is my estimate. Prior to that hearing, assuming the Appellant remains legally aided, I shall direct that the Appellant lodge a Skeleton Argument setting out the real points of law sought to be argued at a full hearing, not less than seven days before the date fixed for the restored preliminary hearing. At the same time, if not before, to lodge further amended grounds of appeal in substitution for the existing original Notice of Appeal and subsequent further grounds. In view of the opinion which I have expressed on the merits of the appeal as presently constituted I shall not sit on the restored Preliminary Hearing.