MR D C D'SOUZA v LONDON BOROUGH OF LAMBETH [2001] UKEAT 0395_99_2205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0395_99_2205

Case No Appeal No. EAT/0395/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D C D'SOUZAAPPELLANT

LONDON BOROUGH OF LAMBETHRESPONDENT

Before

Mr Justice Lindsay

Date 22 May 2001

[1]APPEARANCES For the Appellant MR D C D'SOUZA IN PERSON For the Respondent THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) There are, it would seem, 3 notices of appeal, or papers that have been treated as notices of appeal, in the matter Mr D C D'Souza v London Borough of Lambeth .

[2]First of all there is, and I will call this "A", a notice of appeal dated 3 March 1999 that in all respects looks like a notice of appeal in conventional form. Secondly, and I will call this "B", there is a letter from Mr D'Souza to the Employment Appeal Tribunal dated 25 October 2000 which has been treated as a notice of appeal against the Employment Tribunal decision promulgated on 29 September 2000. Thirdly, marked "C", there is another letter from Mr D'Souza to the Employment Appeal Tribunal, (in fact, it was sent to the Employment Tribunal, but, for all that, I think a copy must have been sent on to the Employment Appeal Tribunal), which has been treated as a notice of appeal against the Employment Tribunal decision of 31 October 2000.

[3]I am not at all concerned - and this has been indicated to me by Mr D'Souza - with what I call "B", but I am concerned with "A" and "C" and in relation to those 2 notices of appeal or documents treated as notices of appeal, Mr D'Souza has in effect 4 broad headings that he wishes to proceed under and to obtain directions today. Mr D'Souza is in person and Lambeth appears by Miss McKie.

[4]The first broad request that Mr D'Souza makes is in respect of documents. By a letter of 30 January 2001 to the Employment Appeal Tribunal he says:

"I hereby make formal application for discovery of the documents listed below which I believe are essential if the EAT is to decide this appeal correctly:"

Then he sets out different categories of documents, 1-7. He bases his request for these documents on the fact that he says that a study of the Employment Tribunal decisions under appeal show that at points there are references in those decisions to the Tribunal having documents and, he says, he has not seen those documents. As an example he refers to the decision promulgated on 31 October 2000 which says, at its paragraph 8:

"We saw no reason to doubt what Miss McKane said. It was well documented and she had clearly been diligent in her searches compared with Mr D'Souza who seems to have done nothing to trace the document upon which he sought to rely."

He says of that expression, 'it was well documented'. "Well, what are the documents?" "I never saw them", he said. It seems to me that here the request is not, strictly, for discovery which is a process under which papers come forward from parties or third parties, but is for papers which, if used at all, have been used before the Employment Tribunal. So it is not appropriate to ask for discovery of these documents but, on the other hand, it does seem to me right that if the Tribunal did indeed rely on documents which Mr D'Souza can say he never saw, then he ought at least to see what they are said to be. So it is not an order for discovery, but what I shall do in respect of items 1-7 in his letter of 30 January 2001, is to write a letter on behalf of the Employment Appeal Tribunal to the Employment Tribunal and ask that if there are any documents within any of those 7 categories that were before the Employment Tribunal at the time of their respective decisions, then can copies be sent to the Employment Appeal Tribunal and, if any are thus received, they can then be passed on to Lambeth and to Mr D'Souza. I do not see it as appropriate to make an order against Lambeth , because that would be to set about the reception of evidence that was not produced before the Employment Tribunal, but a request to the Employment Tribunal itself in the manner that I have indicated seems to me appropriate.

[5]The second heading of Mr D'Souza's request concerns the fact that one of the decisions, speaking of a comparator, mis-described the comparator by name and it was not until a little while afterwards that the name of the comparator was corrected. In the ordinary way that would not have led to any further difficulties whatsoever. The slip rule is, time after time, used to correct minor errors but the significant thing that Mr D'Souza wishes to latch on to is that the uncorrected decision was promulgated before 2 October 2000 when the Human Rights Act came into force and the corrected version, which simply corrected the name of the comparator was promulgated after 2 October 2000. Mr D'Souza sees some form – perhaps, conspiracy would be to high a word - but some sort of plot, under which the decision, he says, was rushed out in order to ensure that it was published to the parties before the introduction of the Human Rights Act. I have no reason to believe that at all but it does seem to me that Miss McKie's point that decisions under the slip rule are made quite commonly and yet the date of the decision always stands as it originally was, is a good one. Moreover and importantly, it cannot be said, and Mr D'Souza accepts that he does not say it, that he was deceived in any way by the wrong name being applied to the comparator. In my view there is no reason to require a judgement date after 2 October to be assigned to the judgement in the way that Mr D'Souza asks. So to that extent his application fails.

[6]The third heading concerns what is thought to be personal knowledge on a particular point by one of the lay members of the Tribunal. Mr L J Harrison sat as a member of the Tribunal on 22 September 2000. In paragraph 6 of the decision that was promulgated on 29 September 2000 I find this:

"Mr D'Souza did not reply to that letter and told us that he had made no attempts to trace either of the references considering that it was the Council's job to do so. He told us that between 1992 and 1995 he had applied for 400 jobs but had never even been asked to an interview. He therefore did not know whether anyone had even requested a reference but considered that it was proper Local Government procedure to request references in respect of all job applicants. We have to say that based upon the Respondent's reply and the Tribunals own considerable knowledge of employment in the public sector, we very much doubt whether references would be taken up before shortlisting."

By his letter to the Employment Tribunal of 12 October 2000 at paragraph 14, page 25 in my present bundle, Mr D'Souza, commenting on the personal knowledge of the Tribunal, said:

"I believe that the real problem is that Mr Harrison has retired several years ago. I would submit that it is essential that the two industrial members of a Tribunal of first instance should be currently employed in order to ensure that their experience is really relevant."

That met with an answer under the heading "Refusal of an application for a review" dated 31 October 2000 that said:

"This is factually wrong, Mr Harrison, although he is now aged 70, is still at work and has worked in the public and the private sector for some 55 years. What Mr D'Souza wants is details of Mr Harrison's particular experience. Of course, one of the points of having lay members of the Employment Tribunal is that cases are heard by persons with practical knowledge from both sides of industry and very frequently their personal knowledge is called upon. They are, time after time, referred to as "the industrial jury"

. Mr D'Souza recognises that it is appropriate for them to have their personal knowledge referred to but, he says, on a basis of authority, that when that is being done, certainly on any important point, it is prudent, at lowest, and perhaps even necessary, that the lay members should specifically announce to those in front of the Tribunal that personal knowledge is to be relied upon and its nature. No such announcement was made in this case, says Mr D'Souza. I would not think it appropriate to have Mr Harrison having to set out his personal experience in the way that Mr D'Souza invites, not, at any rate, as yet.

[7]If Mr D'Souza wishes to make a case that the Tribunal's view of how references should be dealt with or are dealt with is wrong, then it is for him, first of all, to collect evidence, properly-so-called, of practice in that area to demonstrate that, indeed, the Tribunal have got it wrong and, secondly, once he has collected that evidence, to then apply to the Employment Appeal Tribunal to see whether it would be appropriate to receive that fresh evidence if it satisfies the test in Ladd v Marshall, the familiar test as to the introduction of fresh evidence. If he can do that then he can show that the Tribunal was mistaken but, short of that, it seems to me that it would be inappropriate to ask Mr Harrison to comment in the way that Mr D'Souza asks. A positive case has to be made by Mr D'Souza that the Tribunal got it wrong and it needs to be made in the way that I have indicated.

[8]The fourth heading is "Chairman's notes of evidence" and this relates to the hearings on 12 April 1999 (which I understand was relatively short) and 29 September 2000. Miss McKie does not resist the application for notes of evidence. As it would seem that a large part of Mr D'Souza's case is going to be that this part of the decision or that had no foundation in evidence, neither in oral evidence nor in documentary evidence, it seems to me appropriate that the Chairman's notes should be asked for. I have already dealt with the documentary side by indicating the nature of the letter that I will write to the Employment Tribunal as to documents which were laid in front of it, but that documentary side is only going to be half the story and it will, I think, greatly facilitate the proper and expeditious conduct of the appeals if not only the documentary side can be seen but the oral evidence side of things can be visible to the Employment Appeal Tribunal and hence I shall, in the letter to which I have referred in relation to documents, add a request for the Chairman's notes of evidence of the 2 hearings that I have mentioned.

[9]That I think deals with all 4 of the points which Mr D'Souza has raised and I will now ask the parties whether there are any further directions which can conveniently be dealt with today. Mr D'Souza, what else today? No I will leave it as it is thank you. Miss McKie, any other points?