Gill v Lady Herries [1999] UKEAT 972_98_0101

EAT
Gill v Lady Herries
[1999] UKEAT 972_98_0101 · 1999-01-01
"Upon the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the EAT Practice Direction 1996 as directed in the EAT letters dated the 6th and 25th days of August 1998
It is ordered that unless an affidavit is received within 14 days of the date of this Order all allegations of procedural irregularities contained in the Notice of Appeal dated the 3rd day of July 1998 will be struck out."The Notice of Appeal in this case was received by the Employment Appeal Tribunal on 14 July 1998 and it was against a decision of a Tribunal which was held on 15 May 1998 in Brighton. The terms of the Notice of Appeal read as follows:
"The decision is one no reasonable Tribunal could have reached given the exceptional circumstances in this case.
I being Stephens father represented Stephen at the hearing, the Chairman was in my view rushing the hearing as he started late.He showed me little or no respect, and ignored and omitted some evidence I gave under oath as to the circumstances of the case.

No evidence should be omitted and I request full transcript of the proceedings."

That was signed Vincent Gill.The Applicant, Stephen Gill and a co-Applicant, Miss Newport, had brought proceedings against Lady Herries alleging unfair dismissal and unlawful discrimination, in relation to the female Applicant on grounds of her sex, and also an allegation in relation to her that she had been dismissed for a pregnancy related reason.The purpose of the hearing on 15 May was to determine by way of a preliminary point whether the applications and complaints which were being presented to the Tribunal had been made timeously.The Chairman sitting alone concluded that there was no reason why it was not reasonably practicable for the applications to be presented within the prescribed time limit; that although they were going through difficult and distressing periods in their lives, there was no reason why the applications could have not been sent to the Tribunal, particularly as the Applicants were being assisted by Mr Vincent Gill, the First Applicant's father.For the same reason the Tribunal was satisfied that there was no reason why it would be just and equitable to allow the Second Applicant, Miss Newport, to proceed with a claim out of time for unlawful sex discrimination.The appeal relates solely to Mr S.Gill. As we understand it there is no appeal made on behalf of the Second Applicant, Miss Newport.In accordance with our Practice Direction, when a Notice of Appeal contains allegations of procedural impropriety or irregularity, the person making the allegation is required to file an affidavit verifying the complaints. When that has been received it is sent to the Tribunal and their comments are solicited. That process takes place before the matter comes on for a preliminary hearing to determine whether there is any arguable point of law in the Notice of Appeal.It was that procedure which was invoked in this case, having regard to the terms of the Notice of Appeal to which I have referred. There was no affidavit provided, as demanded in the letters of the 6th and 25th days of August 1998, and accordingly, against that background, the learned Registrar made the "unless" order dated 27 August 1998 against which Mr Gill appealed by a Notice of Appeal dated 1 September 1998.The grounds of his appeal against the "unless" order were as follows:
"As I gave a sworn testimony on the 15th May 1998 which I believe in common law should have been recorded word for word, it would be of little use to provide an affidavit when no one can collaborate what was stated at that hearing as only the Chairman and myself were present. I submit with respect that hearing breached a principle of basic law for the reason given.
If proceedings were recorded in full it would prevent any misunderstandings or argument and reduce the need of appeals.Justice should be fair and be seen to be fair and if the Registrar stricks out the appeal I can only advice the matter concerning breach of contract will be dealt with in civil court."Mr Gill has not appeared today but sent us a written argument as follows. He says that:
"1. I am not the Appellant but I am Stephens father and also his representative.
2. As Stephen was not present at the preliminary point hearing held in Brighton on Friday 15th May 1998 how can Stephen swear out an affidavit? to what was stated at that hearing.3. I myself appealed the Registrar for the reasons given in my statement dated 1/9/98. As I gave my testimony under oath on the 15th May 1998 and I submit with respect I remain under the oath from the moment I took that oath.4. Only the Chairman and myself were present at that hearing and my testimony should be recorded in full.5. I with respect submit this matter should be allowed to go to a full hearing.

Thank you

Signed: Vincent Gill."

It is clear that Mr Gill is under two misapprehensions. The first relates to the way in which evidence is taken before an Industrial Tribunal. It is not the practice of Industrial Tribunals to record mechanically the evidence which is presented to it. There will therefore be no mechanical recording of the evidence which he gave. Under the rules of procedure the Chairman makes notes of evidence and, where appropriate, those notes can be called for at the appellate stage. Accordingly, the fact that Mr Gill believes that his evidence was recorded was a mistaken belief, and provides no grounds for not providing an affidavit in accordance with the Practice Direction to which I have referred.The second misapprehension relates to the fact that he was acting as Stephen's representative when Stephen was not present at the hearing. The Employment Appeal Tribunal directs its orders to and against the parties to the proceedings. Mr Stephen Gill is the Appellant. He is party to the Notice of Appeal in this case even though it has been prepared, on his behalf, by his father. It is he, Mr Stephen Gill, who is making the allegation in the Notice of Appeal that the Tribunal erred in the way it dealt with the matter on 15 May. Accordingly, it is entirely appropriate that the order should be directed to him to provide an affidavit since those allegations are being made by him, through his representative. If the representative wishes to swear an affidavit in compliance with the order, for and on behalf of the party concerned, that would be sufficient compliance with the order.In these circumstances I can see no good reason at all why Mr Gill, either father or son, should not comply with our Practice Direction. It is essential if serious allegations are being made, as they are in this case, that they should be first verified by the party making it and then dealt with by the Industrial Tribunal Chairman. We have received no affidavit. There has been no response by the Gills to the orders which have been made.I direct therefore that the appeal in this case be dismissed and order that unless an affidavit is received within 7 days of the date of this order, then the Notice of Appeal will be struck out in its entirety. It seems to me that the essence of the appeal in this case hinges on what took place at the Industrial Tribunal and the alleged procedural irregularity. If that issue is resolved against the Appellant the appeal will fail. Accordingly, it would be entirely appropriate that the pursuit of this appeal should be contingent upon the filing of the affidavit, as I have directed. I make it plain that the affidavit, if sworn by Mr Vincent Gill, will be sworn by him on behalf of his son, who is the party to the proceedings, or it may be sworn by the son based upon information and belief provided to him by his father. But in either event, the affidavit must be in full form, in accordance with the Practice Direction, and must be received by the Employment Appeal Tribunal, and I stress received by the Employment Appeal Tribunal, within 7 days of the date of this order, otherwise the appeal will be struck out and dismissed.