MISS A AHMED v 1) MR OSIBANJO 2) MR ETE 3) OSIBANJO ETE & CO [2001] UKEAT 0694_01_2111
[1]APPEARANCES For the Appellant MR RAOUL DOWNEY Appearing under the Employment Law Appeal Advice Scheme JUDGE PETER CLARK This is an appeal by Miss Ahmed, the Applicant before a Tribunal sitting at London (South) under the Chairmanship of Ms V Wallis on 2 nd May 2001, against that Tribunal's decision dismissing her application and awarding costs in favour of the Respondents in the sum of £300. The application raised a complaint of sex discrimination/harassment but the merits were not enquired into by the Tribunal because the application was dismissed on the grounds of the Appellant's refusal to give evidence.[2]In this appeal, having heard Mr Downey appearing on behalf of Miss Ahmed under the ELAAS pro bono scheme, it appears to us that the following questions arise for determination at a full appeal hearing i) Ought the Employment Tribunal to have replaced the lay member who had sat with the Respondent's representative, most recently in August 1999, following objection by the Appellant through her then representative, so as to avoid any appearance of bias ii) Was the Tribunal entitled to award costs under Rule 12 of the then 1993 Employment Tribunal Rules of Procedures on the basis of the Appellant's unreasonable conduct in refusing to give evidence in support of her claim. That will in turn require consideration of the complaint that the Tribunal were wrong to refuse an adjournment application on the basis that the Appellant and her advisor had inadequate time to prepare for the hearing, having been presented with a bundle of documents at a late stage iii) Was the Tribunal wrong in law, and acting without jurisdiction and power, in dismissing the Appellant's complaint under, apparently, Rule 9(3) of The Employment Tribunal Rules of Procedure 1993 (see paragraph 48 of the Tribunal's Extended Reasons promulgated on 12 th May 2001) in circumstances where both the Appellant and her representative were in attendance at the Employment Tribunal iv) If the answer to that third question is "yes", is the Employment Appeal Tribunal to exercise it's powers under Section 35(1)(a) of The Employment Tribunals Act 1996 and consider whether the complaint ought to be struck out under what is now Rule 15(2)(d) of the 2001 Rules, in the light of the Tribunal's findings, particularly in relation to the costs application if that finding is upheld.[3]These matters will proceed to a full hearing listed for half a day, category B. There will be exchange of skeleton arguments between the parties not less than fourteen days before the date fixed for the full appeal hearing. The Appellant is to lodge draft amended grounds of appeal covering the points which we have identified in this judgment within fourteen days of today marked for my attention and I will then consider granting permission to amend.