MR CHARLES VAKNIN v WYMONDHAM LEISURE CENTRE [2000] UKEAT 684_00_1011
[1]APPEARANCES For the Appellant MR N BOOTH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE A WILKIE QC This is an appeal by Mr Vaknin against a decision of the Employment Tribunal sitting at Norwich on 28 January and 23 February in which it dismissed his claim of race discrimination brought against his ex-employer, Wymondham Leisure Centre.[2]Mr Vaknin initially appealed against this decision, which was sent to the parties on 6 April of this year, by a Notice of Appeal received by the Employment Appeal Tribunal on 15 May. Effectively, he said that the ground for his appeal was that the decision of the Tribunal was contrary to the evidence, there was no evidence to support the decision, the decision was one that no reasonable Tribunal could have reached, and was perverse.[3]In support of this appeal Mr Vaknin submitted a Skeleton Argument in the form of a letter dated 2 November. In the first two paragraphs, he rehearses matters which effectively go to the existing grounds of appeal. In the third and fourth paragraphs, he adverts to an application he says he had made to have the case adjourned on the grounds that he had been abandoned by his legal advisers some two weeks before the Tribunal hearing. He links that to a further problem which he had, namely, his ignorance of, or his ability to obtain the attendance of witnesses by way of a Witness Order. He indicates that the purpose of the adjournment was to enable him to instruct different solicitors rather than to prepare the case himself.[4]There is nothing in the extended reasons which hints at any application having been made by Mr Vaknin to have the case adjourned. Mr Booth who has very properly advanced this alternative ground for appeal, acknowledges that it is not in the existing grounds and accepts that we cannot possibly deal with that aspect of the matter today. What he says is that we should adjourn this appeal on terms that there be an amendment to the Notice of Appeal to include this particular point, an affidavit to support it, and thereafter the Chairman should be given an opportunity to respond to what Mr Vaknin is saying.[5]We indicated to him that, whatever we decided about that, we may wish to deal with the existing appeal and invited him to make submissions in support of those existing grounds. He felt unable to advance any arguments beyond those which Mr Vaknin has set out in his Ground of Appeal and his Skeleton Argument.[6]It seems to us that it would be wrong of us to dismiss out of hand the proposed new ground of appeal. That is not to say that, even as presently expressed, it appears to have very much merit, but if it is a matter which Mr Vaknin wishes to pursue, then we should not arbitrarily deny him the opportunity of so doing.[7]Therefore we are not going to completely conclude this appeal today. We are however, in a position to deal with the existing grounds of appeal. We can find no legal merit whatsoever in the existing grounds of appeal. It seems to us that the decision of the Tribunal, as it reads, is impeccable as far as its application of legal principles are concerned. It goes carefully into the evidence which was presented to it and makes clear findings of fact which support the conclusion to which they came.[8]Accordingly, insofar as this appeal is constituted in the existing grounds, we are not prepared to allow that to go to a full hearing and we dismiss that appeal. However, we do not dismiss the appeal in its entirety: we will give Mr Vaknin a limited period of time within which to put his appeal in order. We will give him leave to amend the appeal to add the point that he sought an adjournment, and was refused it. He must also support his contention in the form of an affidavit. We will give him 14 days to file both an amended Notice of Appeal and an affidavit with this Tribunal, failing which, his entire appeal will be dismissed. Once those documents have been filed, the Chairman will then be given an opportunity to respond. Once he has done that, then this appeal can be re-listed in order for a panel of the Employment Appeal Tribunal, not necessarily the same one, to consider that ground of appeal by way of a preliminary hearing.