(1) MR M J ELDRIDGE (2) BARBICAN CAR HIRE LTD v MR L ZHANG [1999] UKEAT 543_99_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 543_99_1607Case No Appeal No. EAT/543/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR M J ELDRIDGE (2) BARBICAN CAR HIRE LTDAPPELLANTMR L ZHANGRESPONDENT
Before
His Honour Judge D M LevyLord Davies Mr ParkerDate 16 July 1999
[1]APPEARANCES For the Appellants MISS K WALDEN-SMITH (of Counsel) Instructed By: Mr J P Braithwaite Messrs Smith Braithwaite Solicitors 23 Heddon Street London W1R 7LG JUDGE LEVY: There is an unusual aspect to this PHD by the Appellant, the Respondent below. After a seven day hearing before an Employment Tribunal brought on a complaint by Mr L Zhang, a Tribunal held at London North, determined unanimously that his complaint was made out in part in that there had been racial discrimination against him by the Appellant. Counsel who appeared for the Appellant below tells us that one witness who gave material evidence to the Employment Tribunal is not referred to in the Extended Reasons of its Decision. We accept, having looked carefully at them, that there is no mention of that witness. We also accept that in paragraph 5 of the extended reasons, the decision refers to the evidence of witnesses when the Tribunal heard, as to events on the night of 6 December 1996 which led to the finding of racial discrimination to be made out by the Respondent.[2]However, in paragraph 6 of the extended reasons, there is in the first sentence a reference to the totality of the oral evidence and toward the end of that rather long paragraph, there is a sentence:
"There have been different and inconsistent accounts given by the Respondent's witnesses as to the circumstances in which the Applicant was pulled from the job. There was unconvincing evidence given by Ms Butler which was the only direct evidence put forward by the Respondents as to their version of the events of that night…"
We would have liked to have seen at least a note of the evidence of the witness whose evidence has been omitted, namely Earnest Hibbert, but Ms Walden-Smith has not produced it for us. There is a lurking doubt in our mind, not withstanding the submissions of Ms Walden-Smith, that there is anything to go forward on this appeal.[3]We think that a proper approach, given the lacuna in the way the appeal had been presented to us, is to make no order on this preliminary hearing, other that to say there should be further preliminary hearing before a differently constituted Tribunal which would have with them in advance, the Notes of Evidence that the Respondents have of this witness, to see whether they assist the Respondent's possible case on appeal. A submission has been made to us that the evidence is crucial.[4]We will therefore make an order accordingly that there should be a further preliminary ex-parte hearing as soon as it can be arranged. We would also ask the Chairman of the Tribunal to produce his notes of the evidence of Mr Ernest Hibbert as soon as possible and ask that the matter should be relisted as soon as possible after his reply to the request has been received.