MR L J K MURGAI v HOME OFFICE IMMIGRATION & NATIONALITY DIRECTORATE [1999] UKEAT 866_99_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 866_99_2109Case No Appeal No. EAT/866/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L J K MURGAIAPPELLANTHOME OFFICE IMMIGRATION & NATIONALITY DIRECTORATERESPONDENT
Before
His Honour Judge Peter ClarkDate 21 September 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK : This case began as long ago as 16th January 1996, when Mr Murgai, then employed by the Home Office in a clerical grade presented an Originating Application to the Industrial Tribunal, as it then was, complaining of unlawful racial discrimination against the respondent, his employer.[2]The matter was finally heard by a tribunal sitting at London (South) chaired by Mr C A Carstairs. The tribunal sat over four days from 29th September to 2nd October 1997, followed by a further days deliberations in Chambers. Both parties were represented by experienced advocates during the hearing.[3]By a reserved decision with extended reasons promulgated on 21st October 1997 ["the substantive decision"] the tribunal dismissed Mr Murgai's complaint.[4]One of the issues before the tribunal was whether an annual staff report ["ASR"] prepared by his then line manager, Mr Sims for the year 1993-94, in which Mr Murgai was given a box 3 marking for promotability, that is, likely to be fitted for promotion in two years, was unlawfully racially discriminatory.[5]In finding that that complaint was not made out the tribunal made certain findings in the conclusion section of their reasons at paragraph 64. They found Mr Sims to be a truthful witness. In the course of that paragraph they said this:
"64. … Furthermore, the Tribunal noted that Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, marking him "fitted for promotion" which view was endorsed by a promotion Board which did indeed promote Mr Gor. Accordingly, the Tribunal found that there was no discriminatory treatment in respect of this report on the ground of race."
Pausing there, Mr Murgai submits that the reference to this report at the end of paragraph 64 of the tribunal's original reasons must be a reference to the report written by Mr Sims on Mr Murgai for the year 1993-94. On the face of it, I accept that submission.[6]Against the substantive decision Mr Murgai appealed by a Notice dated 28th November 1997.[7]The matter first came on for preliminary hearing on 28th January 1998. For the reasons which I gave in a judgment on that day that hearing was adjourned. When the matter came back, again before a division on which I sat, on 7th May 1998, we directed that the appeal be allowed to proceed to a full appeal hearing on certain limited grounds.[8]The full appeal came on for hearing before a division presided over by Morison J on 5th November 1998. Both sides were represented by Counsel. The appeal was stayed on agreed terms namely: 1. That the matter is remitted back to the same Employment Tribunal with a direction that they review their decision promulgated on the 21st day of October 1997 on the following basis:- There being agreed facts as follows:- That Mr Gor had been listed for promotion without interview in October 1994 and had transferred on promotion in June 1995 before Mr Sims had written a report on him. The parties consent to an order that the case be remitted to the same Employment Tribunal for consideration of the impact of the agreed facts on the conclusions noted in the last two sentences of paragraph 64 of the Extended Reasons [ which I have set out ] and whether it would affect the decision. And for this purpose the Employment Tribunal to be at liberty to receive further evidence from the parties and in particular from Mr Sims on the promotion of Mr Gor, the reports leading to his promotion and the report by Mr Sims in respect of Mr Gor and the Appellant to be at liberty to cross-examine thereon and the Respondents to re-examine thereafter. The parties also to be at liberty to make submissions to the Employment Tribunal on the impact of the same on the credibility of Mr Sims and on the decision. 2. That the appeal is stayed with liberty to apply within 42 days of any new decision or order of the Employment Tribunal. If no such application is made within the specified time the appeal will be dismissed without further hearing."[9]The matter duly went back before the Carstairs Employment Tribunal on 20th April 1999. By a decision promulgated with extended reasons on 1st June 1999 the Employment Tribunal dismissed the application for review ["the review decision"].[10]By a further Notice of Appeal dated 12th June 1999 Mr Murgai activated paragraph 2 of the President's Order in relation to the first appeal - EAT/1365/97 – and further appealed against the review decision – EAT/866/99.[11]I understand that there will be no preliminary hearing in the second appeal, that matter simply being consolidated with the first appeal insofar as there are remaining grounds of appeal still extant. Both appeals will be listed together in due course.[12]The matter comes before me today on a renewed application by Mr Murgai for the Chairman's Notes of Evidence of Mr Sims taken at the 20th April hearing, that application having been earlier refused by the Registrar.[13]In a courteous presentation today, Mr Murgai has taken me through the grounds of appeal in the Notice of Appeal dated 12th June 1999 and his skeleton argument prepared in support of the application for the Chairman's Notes.[14]The first ground on which he seeks the Notes relates to paragraph 2 of the review decision reasons. At paragraph 2 the tribunal said this:
"2 Mr Sims was subjected to cross-examination before the Tribunal today to deal with this question. [ That is the question posed by the order of Morison J's tribunal. ] At one time cross-examination went beyond the scope of what he had said about Mr Gor when giving evidence, encompassing the reasons for marking the Applicant in the way he had done vis-à-vis the Applicant's 1993/94 Annual Staff Report (ASR). So far as that matter was concerned, the Tribunal concluded that it was not sitting to reassess the ASR markings in respect of Mr Murgai, which had been considered in detail at the first hearing. It was the Tribunal'' view that it was required to reassess its view of the case, particularly regarding the credibility of Mr Sims, having regard to the new agreed facts relating solely to Mr Gor. After hearing evidence from Mr Sims on this matter and considering the evidence which Mr Sims gave last time, the Tribunal had borne in mind that the Employment Appeal Tribunal must have intentionally limited the issue, as the appeal has not been finally disposed of but has been stayed."
[15]The point which Mr Murgai makes in relation to that part of the tribunal's reasons on review, is that he needs to be able to show the Employment Appeal Tribunal which hears the further appeal precisely what questions were being asked by Mr Whitmore which the tribunal ruled fell outside the ambit of the EAT's order. He wishes to argue on appeal that that line of questioning was not properly stopped in accordance with the EAT's order.[16]It seems to me that that is a legitimate purpose for requiring the Chairman's Notes of Evidence.[17]But he advances further grounds for the Chairman's Notes. They also relate to the line of questioning by Mr Whitmore.[18]It seems to me that since the second appeal is proceeding to a full hearing, and looking at the grounds there relied upon, that it would be of considerable assistance to the Appeal Tribunal and indeed to the parties for the purpose of their formulating their submissions, if the note of Mr Sims' evidence at the review hearing, both in chief and in cross-examination and indeed in re-examination and in answer to the tribunal, lasting, I am told, some one hour, were before the Appeal Tribunal when these appeals are restored for hearing.[19]In these circumstances I shall direct that the Chairman, Mr Carstairs, be asked to provide his Notes of the evidence given by Mr Sims at the hearing held on 20th April 1999. When received, copies will be provided to the parties.