MR N WOLEX v RADIO TAXICABS (LONDON) LTD [1999] UKEAT 416_99_0706
EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 416_99_0706Case No Appeal No. EAT/416/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N WOLEXAPPELLANTRADIO TAXICABS (LONDON) LTDRESPONDENT
Before
His Honour Judge Peter ClarkLord Gladwin of CleeDate 7 June 1999
[1]APPEARANCES For the Appellant MISS MALLICK (of Counsel) Messrs Gadwah & Co (Solicitors) 245-249 Whitechapel Road London E1 1DB JUDGE PETER CLARK: This is an appeal by Mr Wolex against a decision of the London North Employment Tribunal sitting on 4 th January 1999. That decision with extended reasons was promulgated on 27 th January 1999. Having heard submissions by Ms Mallick on behalf of the Appellant at this ex-parte preliminary hearing, we have reached the conclusion that it is not possible to adjudicate on the appeal at this preliminary stage without more. In particular at paragraph 21 of the Notice of Appeal it is said:
"The Appellant was not given a reasonable opportunity to provide evidence in rebuttal or produce his own hand-written time records in order to prove the above matters."
[2]The above matters are allegations that, during the course of the hearing before the Employment Tribunal, the Respondents were asked to produce attendance records. The document, which was produced, it is said, was wholly inaccurate in that first, it showed on 12 th and 13 th September 1998 the Appellant was late for work. It is contended that he was in fact on holiday from 2 nd to 16 th September 1998. Secondly, it is said that the document produced by the Respondents showed that the Appellant was on holiday on dates after his dismissal on 17 th September 1998. The way that point is put by Miss Mallick in argument is that first, Counsel for the Appellant below was not given a proper opportunity to take instructions on the documents produced during the course of the hearing and that secondly an application was made by Counsel to recall the Appellant to deal with the contents of those documents and that application was refused.[3]The point may be of some significance bearing in mind the reliance placed by the Tribunal on the veracity of the Respondent's witness who decided to dismiss the Appellant, Miss Gavin, and her credibility in turn arguably depended upon the accuracy of the attendance records kept by the Respondent.[4]We bear in mind the requirements of paragraph 9 of the Employment Appeal Tribunal Practice Direction, that where complaint is made about the conduct of the hearing before the Employment Tribunal, and we think that this matter falls within that definition, then the proper course is for the matter to be fully pleaded and for the Appellant or his representative below to swear and file an affidavit in support of that complaint and for the Chairman of the Tribunal then to be asked to provide his comments thereon. Those steps have not been taken in this case and in these circumstances we direct that within 21 days of today, the Appellant file a draft amended Notice of Appeal, fully pleading the allegation presently foreshadowed at paragraph 21 of the Notice, and to file an affidavit in support of that complaint. That affidavit should exhibit the attendance record put in evidence by the Respondent. When that has been done both the amended grounds of appeal and the affidavit will be put before me.[5]If leave to amend is granted the amended document and the affidavit will be sent to the Chairman, Mr Menon for his comments. Upon receipt of those comments, I shall give a further direction as to whether this case is to be restored for a preliminary hearing or proceed to a full appeal hearing.[6]There is a further point. Today Miss Mallick has applied to adduce fresh evidence before this Appeal Tribunal in the form of a document completed by or on behalf of the Respondent and sent to an insurance company. That document was in relation to an application by the applicant for a home improvement loan. We shall not rule on that application today. Again we direct that within 21 days the Appellant file an application for leave to adduce fresh evidence exhibiting the document to which we have just referred. In particular we bear in mind the three-stage test set out by Mr Justice Popplewell in Wileman v Minilec Engineering Ltd (1988) ICR 318. The particular point to be addressed is the question as to whether or not the document would probably have had an important influence of the race discrimination complaint in this case. On that basis this preliminary hearing is adjourned.