MR A M KARA v COMMISSIONERS FOR CUSTOMS & EXCISE [2002] UKEAT 0495_01_0611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0495_01_0611Case No Appeal No. EAT/0495/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A M KARAAPPELLANTCOMMISSIONERS FOR CUSTOMS & EXCISERESPONDENT
Before
Mr Justice WallLord Davies of CoityDate 6 November 2002
[1]APPEARANCES For the Appellant MISS A CHUTE (Of Counsel) Christian Fisher 42 Museum Street London EC1A 1LY For the Respondent MR P COPPEL (Of Counsel) Solicitors Office HM Customs & Excise 5th Floor West, Ralli Quays 3 Stanley Street Salford M60 9LB THE HONOURABLE MR JUSTICE WALL This is an appeal by Mr Kara against the decision of the Employment Tribunal at London South which heard the case on 31 January and 1 February 2001 with Extended Reasons subsequently produced on 23 February. Mr Kara has been employed by Customs & Excise. He was dismissed by Customs & Excise. The decision of the Tribunal was that he had not been unfairly dismissed, and that he had not been unlawfully discriminated against on the grounds of his race.[2]The history of the matter is extremely complex. It involves an initial prosecution of Mr Kara (which resulted in the prosecution in due course offering no evidence against him) followed by a disciplinary investigation involving the alleged removal from a Customs & Excise warehouse of certain items including some ivory apples. The upshot of the investigation was that the Customs & Excise took the view that they had a reasonable belief that Mr Kara had behaved as alleged and he was dismissed. He appealed to the Civil Service Appeal Board. The Civil Service Appeal Board found that the dismissal had been procedurally unfair, largely, it would appear, on the basis that there had not been, as it were, an internal disciplinary panel. In any event that was their finding. Mr Kara subsequently took proceedings in the Tribunal for unfair dismissal, discrimination and victimisation.[3]The Tribunal considered the outcome of the Civil Service Appeal Board and the conclusion it had reached and disagreed with it on the need for an internal panel. It came further to the conclusion that Mr Kara had been fairly dismissed; that the Customs & Excise investigation entitled Customs reasonably to believe that he had behaved as alleged; and that the dismissal was not disproportionate on the basis that he was alleged, effectively, to have been guilty of theft.[4]Mr Kara acted in person before the Tribunal. There was a very substantial delay before the matter was heard. There was a lot of correspondence dealing with the question of discovery. We have been taken through some of that correspondence this morning. There is also an issue between the Parties which we are not going to resolve today (because we are adjourning) as to whether or not there had been as it were "a concession" by the Respondents that the dismissal had been procedurally unfair and therefore the only issue before the Tribunal was going to be Polkey reductions and contribution, it being the Customs & Excise's position in any event that Mr Kara was one hundred percent responsible for his own situation.[5]In any event, amongst the grounds of appeal which we have looked at this morning (and we appreciate it is not a ground in the Notice of Appeal settled by Ms Chute, who appears for Mr Kara this morning) is this ground; that the Tribunal was wrong in that it refused to admit into evidence a number of pieces of evidence and that by so doing it:
"… misdirected itself in law and reached a decision which no reasonable tribunal properly directing itself could have reached and/or gave the appearance of bias and/or erred in law having regard to Article 6 of Schedule 1 of the Human Right Act 1998 . "
Because there had been discussions, both at a previous directions appointment and before the Tribunal itself, as to the status and progress of the proceedings, His Honour Judge Clark, on a hearing of this appeal and on subsequent directions, directed that Mr Lawrence, the solicitor then acting for Customs & Excise, and Mr Brown, who was counsel acting for Customs & Excise, should be available for cross-examination today: see the decision of Facey v Midas Retail Security [2001] ICR 287. Most helpfully, Miss Chute has been able to agree that there was no purpose in Mr Brown attending and although there may be an arguable issue at the appeal in relation to whether or not the question of unfair dismissal either was or should have been live before the Tribunal, we have come to the view that there will be no purpose in asking Mr Lawrence (who has in any event moved on) to attend for cross-examination, therefore we do not propose to do so. Accordingly, Mr Lawrence will be released from attendance at the adjourned hearing[6]During the course of this morning's discussion, when Miss Chute was in the process of opening the appeal to us, we invited her to specify what was meant by paragraph 6(b) of the Notice of Appeal and we adjourned for a short period to enable her to do so. We are very conscious here that Mr Kara was acting in person before the Tribunal and we are equally concerned to ensure that every argument available to him is properly put before this Appeal Tribunal. However, it seemed to us that paragraph 6(b) was unparticularised and needed elaboration for us properly to understand it. It was not possible in the short period that we initially offered Miss Chute for her to identify all the relevant pieces of evidence. We came rapidly to the conclusion, when addressed by Mr Coppel, that we were not going to be able to deal with this issue properly today. Mr Coppell, very correctly in our view, submitted that if he was going to be met with a number of itemised pieces of evidence which may or may not have had documentary support, then, even leaving aside the question of whether there was a refusal to admit them to evidence, or whether they were produced, he would be in great difficulty dealing with them as it were 'on the hoof'. In addition there are other substantial arguments in the appeal which would make it unlikely (if we had embarked on that exercise or given Miss Chute enough time to put it together) that we would have finished within the day in any event.[7]As I indicated earlier, this case has had a very unhappy procedural history, but that is all the more reason for attempting to ensure that whichever way this appeal is decided, it is decided on full argument and all available material when it next comes before this Tribunal. Therefore we have come to the conclusion that the fair way of dealing with this is to give Miss Chute twenty eight days to identify the items of evidence to which she refers in paragraph 6(b) of the Notice of Appeal and to cross-reference those to the documentation and the Tribunal's reasons.[8]That task, we think, is made slightly lighter for her because, having taken instructions, it appears that Mr Kara's complaint is that it was the documents which he had with him in his holdall or bag at the time of the Tribunal that he was unable to put before the Tribunal. His complaint relates to those documents and not to items which he had not obtained otherwise on discovery. This Tribunal certainly could not entertain further applications for discovery. We suspect that a substantial amount of the documentation referred to may not, as is so often the case, be directly germane to the issues involved. Be that as it may, we are quite satisfied that the proper way to deal with paragraph 6(b) is the course that I have indicated. That will, we believe, achieve fairness because it will enable Mr Kara to put before this Tribunal all those pieces of evidence which he says he was not allowed to introduce because he was not able to admit the documents from his bag, and it will likewise give the Respondent the opportunity to analyse those and to respond to them. Miss Chute assures us that she can undertake the first exercise in twenty eight days. Mr Coppell asks for permission to reply within twenty eight days, if so advised. He may or may not do so. We direct that any amended Skeleton Arguments relating to this material should be produced fourteen days prior to the adjourned hearing.[9]As far as the constitution of the Tribunal is concerned, because I only sit here on two occasions a year and am not due here again until late next spring, the course which has commended itself to the Bar and to my colleagues, is that the Tribunal which has to be constituted should comprise of the same Lay Members, albeit with a different Chairman. That therefore will be our Order.