MR K M SHWKY v HERITAGE CARE [2001] UKEAT 1185_00_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1185_00_1903Case No Appeal No. EAT/1185/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K M SHWKYAPPELLANTHERITAGE CARERESPONDENT
Before
His Honour Judge Peter Clark Mr J HoughamDate 19 March 2001
[1]APPEARANCES For the Appellant MR FODDER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE PETER CLARK : This is an appeal by Mr Shwky, the applicant before an Employment Tribunal sitting at Stratford under the chairmanship of Mr S.M. Duncan on 11-14 July 2000 against that tribunal's reserved decision, promulgated with extended reasons on 9 August 2000, dismissing his complaints of unfair dismissal and unlawful racial discrimination brought against his former employer Heritage Care. Before that tribunal the appellant appeared in person; the respondent was represented by an Employment Consultant, Mr Moon.[2]The appeal is listed before us today for preliminary hearing, that is, a hearing to decide whether or not the appeal raises any arguable point or points of law which ought to go forward to a full appeal hearing.[3]The thrust of the Notice of Appeal, supported by an affidavit sworn by the appellant on 23 October 2000, is that he did not receive a fair hearing of his complaint by the tribunal. A number of specific complaints are made against the Chairman. We should add that there are other grounds of appeal which do not relate to misconduct, alleged misconduct on the part of the tribunal.[4]In accordance with the EAT's usual practice the Chairman was asked to comment on the appellant's affidavit. He did so by letter dated 14 November 2000. In addition comments have been received on both the appellant's affidavit and the Chairman's response from Mr Moon in the form of a letter dated 19 December 2000.[5]It is immediately apparent to us, having read that material and the tribunal's decision with Extended Reasons that there is at present a yawning gap between the appellant's account of events which took place during the four day hearing and the account given by the Chairman, supported by that of Mr Moon. How is that factual conflict to be resolved?[6]Opinions as to the correct course to take have varied. In Roberts v United Friendly Insurance Plc (13 June 1996 Unreported) I preferred the view that where a conflict such as this arose, we should accept the account given by the Chairman in preference to that given by the appellant. At the other end of the spectrum, it has been suggested that the tribunal chairman and members should be required to attend for cross-examination before the EAT along with the appellant.[7]In the event the President, Lindsay J, has taken a middle course which we shall follow. In Facey v Midas Retail Security [2000] IRLR 812, paragraph 39 he gave the following guidance as to the steps which can and cannot be taken in these circumstances. They are:
"(i) First the steps outlined in the EAT Practice Direction paragraph 9 (3) will be taken and unsworn comments may then be taken from the Chairman and, if necessary, other Members of the Employment Tribunal under paragraph 9 (4); (ii) The EAT may next require sworn witness statements (or further ones) from persons not including Members of the Employment Tribunal; (iii) The EAT may then invite but cannot require the Chairman or other Members of the Employment Tribunal to provide sworn written evidence-in-chief as to primary fact; (iv) It will in a suitable case be possible, after such an invitation, for adverse inferences to be drawn from a Member's failure without good reason to provide sworn written evidence-in-chief of primary fact; (v) If, notwithstanding the material already collected, including whatever has been collected by way of disclosure orders, the EAT is of the view that such cross-examination will materially assist it, it may require the attendance for oral cross-examination of deponents not including the Chairman or other Members of the Tribunal; (vi) The EAT is not to hear a Member's cross-examination, be it as to primary or secondary fact, even where the Member in question has agreed to attend; (vii) The EAT is not to require the attendance of a Member of a Tribunal for cross-examination nor to require disclosure of documents from him or her; (viii) The EAT is not to draw adverse inference from a Member's failure to attend for cross-examination."
[8]With that guidance in mind Mr Fodder, who appears on behalf of the Appellant today under the ELAAS pro bono scheme, submits that we should give appropriate directions for the further conduct of this appeal. We accept that submission and accordingly give the following directions: 1 within 21 days of the promulgation of this judgment, as opposed to our order, the appellant is to lodge any further affidavit in support of his complaints of bias. 2 Mr Moon is required to provide an affidavit or sworn statement setting out his account of events before the tribunal 21 days thereafter and the chairman and members of the tribunal at Stratford will be invited to provide either their further comments or written or witness statements relating to the matters in issue. 3 once that material has been collected I shall give a direction on paper as to the further conduct of this appeal. In particular as to whether the preliminary hearing will be resumed with or without cross examination of witnesses and on an ex parte or inter partes basis.[9]Pausing there, we are aware of the limitation on the professional indemnity cover for ELAAS representatives. Those organising ELAAS may wish to consider whether or not ELAAS representation will extend to an ex parte hearing under the Facey principles, at which a representative of the respondent is present for the purposes of cross examination without having a right to make submissions on the merits of the appeal.[10]Additionally, the appellant in his further affidavit is required to identify specifically any findings of fact made by the tribunal which he contends were made without any supporting evidence as opposed to being determinations on conflicting evidence. It will then be possible to deal with any application for Chairman's notes of evidence in accordance with rule 7(3).[11]Finally, Mr Fodder has indicated that the appellant wishes to amend the Notice of Appeal to add a specific ground relating to the internal appeal hearing prior to dismissal. I direct that that amendment be reduced into writing and a copy sent to the EAT within 14 days of today's date and marked for my attention and I will rule on whether or not permission is to be granted.