THE LONDON BOROUGH OF HARINGEY v MR E AKPAN [2001] UKEAT 974_00_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 974_00_1601Case No Appeal No. EAT/974/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE LONDON BOROUGH OF HARINGEYAPPELLANTMR E AKPANRESPONDENT
Before
Mr Justice LindsayDate 16 January 2001
[1]APPEARANCES For the Appellants MR J CAVANAGH (of Counsel) Haringey Council Corporate Services Legal Service Alexandra House 10 Station Road Wood Green London N22 7TR For the Respondent MS I OMAMBALA (of Counsel) Messrs Pothecary & Barrett Solicitors Talbot House Talbot Court Gracechurch Street London EC3V 0BS MR JUSTICE LINDSAY (PRESIDENT) : [The first part of the judgment was not recorded by the tape machine but was merely formal.] Between the 10th August 1999 and 23rd March 2000 at London (North) before the Employment Tribunal under the chairmanship of Mr G Flint, Mr Akpan, the applicant, was represented by Ms Omambala of Counsel and she appears for him today.[2]On the occasions before the Employment Tribunal the respondent, Haringey Council, were represented by Ms A Weekes QC and the Council appears before me today by Mr Cavanagh.[3]The unanimous decision of the Employment Tribunal was that the applicant, Mr Akpan, had suffered discrimination on the grounds of his race and should receive compensation.[4]In the course of quite a lengthy decision sent to the parties on 4th May 2000 in paragraph 12 the tribunal said:
"… That there was a protected act cannot be in doubt since the Applicant has during the job evaluation exercise made remarks indicating that the refusal to up-grade him was on the grounds of his race. …"
[5]There was a comprehensive Notice of Appeal put in by Haringey and what I am concerned with today is an application to amend that Notice of Appeal by first of all permitting a simple typing error to be corrected; that I do not apprehend is opposed; but, at the end of the Notice of Appeal a new paragraph, 6.9 is sought to read as follows:
"Further the Employment Tribunal erred in law in failing to identify a "protected act" upon which the Respondent was entitled to base his claim for victimisation. Further or alternatively, there was no evidence before the Tribunal which would have justified the finding that there was such a protected act."
Mr Cavanagh argues that permission to raise that as a ground of appeal should be granted; and that, although it is undoubtedly late to raise the question, the respondent suffers no prejudice, certainly none that cannot be compensated adequately in costs.[6]Ms Omambala says that there is prejudice. The addition of that further matter may not only delay the hearing date to be given to the appeal at the EAT (and as yet there is no hearing date given) but also, she adds, may prolong the hearing of the appeal when it comes on.[7]I am not satisfied as to either of those grounds. The hearing date will undoubtedly be some while away and I cannot think that the addition of this ground, even if followed up by Chairman's Notes, would to any substantial extent delay the hearing date. Moreover, since the Notice of Appeal as it stands, comprehensively challenges almost everything, I cannot think that the addition of this ground will add substantially to the hearing itself, which is estimated to take a day. I would have thought that even with this added ground it could be finished within that day. It seems to me that this is a proper case where leave to add the new ground should be given and I accordingly give leave to amend in the manner indicated.[8]The question then arises as whether or not Chairman's Notes should be requested on the subject. On that, the parties have not as yet really addressed me. [Discussion with Counsel][9]A request should be made to the Chairman in respect of any evidence that the tribunal regarded as supporting the proposition in paragraph 12 of their decision (on page 21 of our current formulation of the bundle) namely, that there was a protected act because the applicant during the job evaluation exercise made remarks indicating the refusal to upgrade him was on the grounds of race. Any evidence relied upon by the tribunal to that end ought to be the subject matter of notation by the Chairman and supplied to the EAT and thence to the parties.[10]That leaves the question of whether some time limit should be put on Mr Akpan in responding to the amendment and whether he ought to have some costs incidental to the amendment. I direct that Haringey should serve the amendment by Friday, 19th January 2001 at 4.30 p.m. I direct Mr Akpan to serve his amended answer not later than 14 days from receipt of the Haringey's amendment. [Following discussion with Counsel][11]Haringey shall pay Mr Akpan's costs of amending the Respondent's Answer in consequence of the appellants' addition of the new 6.9, they to be taxed if not agreed and to be paid to Mr Akpan. [Following discussion with Counsel][12]I direct that not less than 21 days before the date fixed for the hearing the parties are to agree a bundle which each side requires, taken from papers which had been laid before the Employment Tribunal but which for one or another reason, shall have not, by then, found themselves into the EAT's bundle. 1 day; category A.