Appeal No.	 EAT/276/96 & EAT/551/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 June 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
(AS IN CHAMBERS)

MR K DHARIWAL	APPELLANT

THE LONDON BOROUGH OF GREENWICH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	MR J TAYLER
(of Counsel)
Messrs Yoga Rajah & Co
Solicitors
19 Undine Street
London
SW17 8PP	
For the Respondents	MR P WALLINGTON
(of Counsel)
Instructed by:
The Solicitor
London Borough of Greenwich
Town Hall
Wellington Street
Woolwich
London
SE18 6PW	

	MR JUSTICE MORISON (PRESIDENT):	This is a directions hearing following an application by the respondents to this appeal, the London Borough of Greenwich.

1.	They employed Mr Dhariwal and during the course of his employment and arising out of the termination of his employment, he made various complaints to an Employment Tribunal, complaining, amongst other things, that he had been unlawfully discriminated against.

2.	The papers were substantial because the case was complex. In accordance with our procedure when the appeal came before the Employment Appeal Tribunal for a preliminary hearing an ELAAS representative, Mr Tayler of Counsel, correctly took the view in my judgment that he needed further time before he could formulate what the grounds of appeal were, Mr Dhariwal having himself produced what I will call a “home-made” Notice of Appeal which raised a whole series of points.

3.	Only with the assistance of the ELAAS scheme is it possible for the Employment Appeal Tribunal to discharge its duties to the public in endeavouring to do justice between the parties at an appeal in a case of this sort.

4.	For reasons, which do not need to be gone into at all and which do not reflect at all on Mr Dhariwal himself nor I think on Mr Tayler of Counsel, there was a delay between the time when the preliminary hearing was adjourned to the date when it came on substantively for hearing.

5.	The tribunal, having heard the argument of Mr Tayler of Counsel, was satisfied that there were matters which were fit for a hearing. With his assistance, those points were identified in a judgment which was given and runs to some six pages. That judgment does not need to be referred to again, because I can summarise essentially what was decided.

6.	It was decided that it was arguable that the Employment Tribunal was wrong to have stopped the case at half-time in relation to certain of Mr Dhariwal’s allegations and then gone on in a second tranche to consider those matters which they felt were arguable.

7.	Secondly, there was an arguable case on the question as to whether the way in which the Council reorganised and restructured the unit in which Mr Dhariwal worked, constituted a breach of a contract referred to as a COT 3 agreement. Under that agreement by clause 3 of it, Mr Dhariwal was effectively given a job which was defined in a job description with the supervisory responsibilities set out in paragraph 2 of it. Clause 8 of the contract gave the Council a right to carry out restructuring and any such restructuring or reorganisation of the Race Unit was to be subject to established consultation procedures agreed with the trade unions, and Mr Dhariwal likewise reserved his right to take whatever action he deemed fit to preserve his position. The issue, as I understand it, that arises, is was the Council entitled to remove the appellant’s post in the context of a restructuring or reorganisation of the Race Unit having regard to the terms of the COT 3 agreement.

8.	There was a third issue which I do not need to do more than mention in passing in relation to the decision of the tribunal to award costs.

9.	In order that the appellant could raise the issue which is of substance, namely that the tribunal were wrong to stop the case at half-time, in the way I have indicated, it was necessary for leave to amend the Notice of Appeal to be granted, because that was not a point which had been made in the home-made Notice of Appeal. For this purpose, the Employment Appeal Tribunal, having given its judgment, permitted the appellant to argue those points contained in the judgment which would also require an amendment. 

10.	Mr Wallington on behalf of the London Borough of Greenwich, quite rightly asserts that that is precisely the same as where the Notice of Appeal is amended pursuant to leave granted ex parte and that the respondent in such a case is entitled to come to Court and say why leave should not be granted. Indeed, it was specifically contemplated in the judgment of the Court at the time that if Greenwich felt themselves at a disadvantage in relation to a point, which was not raised in the Notice of Appeal, then they could ask for this directions hearing.

11.	The way the point was put (and I think I can deal with what I regard as the substance and deal very briefly later with other peripheral matters) by Mr Wallington was that as a matter of law, following the case of British Gas v Sharma it is only in exceptional cases that an Employment Tribunal is entitled to accept a submission of no case to answer. The question, therefore, says Mr Wallington is whether it is arguable that the Employment Tribunal erred in law in treating this as an exceptional case. He said that there was no reason why the Employment Appeal Tribunal should conclude that the tribunal were wrong in law to stop the case at half-time and in those circumstances leave to amend the Notice of Appeal or leave to argue this point at the full hearing, it matters not which, should not be granted because the point is effectively empty. He says this was an exceptional case relying on two matters in particular. 

12.	Firstly, that the submission was made after 10 days of evidence of the appellant with considerable documentation made available to the Employment Tribunal and extensive cross-examination of the appellant’s evidence. So this is a case where the tribunal had got a very full picture, so he says, of the issues and that means that the tribunal were not stopping the case at half-time in the normal sense, the tribunal were only stopping it when they were fully informed as to what the issues were.

13.	Secondly, he says, in any event at the second tranche of the case the tribunal were given the evidence of those witnesses who would have given evidence at the first tranche had they not stopped the case (those were the only witnesses who would have been called) and that the tribunal itself, as a result of the second tranche, noted that they confirmed the findings of fact that they had made earlier having considered the evidence which was then given. 

14.	It is not entirely clear at this time what the ambit of their evidence was nor what rights the appellant had to cross-examine those witnesses. In other words, I am not entirely clear whether the Chairman of the tribunal indicated that although the case had been stopped at half-time in relation to many of the issues, the witnesses who were coming to give evidence on the outstanding matters could be cross-examined about all the matters which had been in issue before the no case ruling was made. For that purpose it would be as well, I think, for the tribunal Chairman to be written to by the Employment Appeal Tribunal with his attention drawn to this short judgment, so that he can pass his comment about it. I say that because it seems to me that this is an allegation akin to procedural mishap or impropriety, however it is to be described, and it is right that the Chairman should be invited to make his comments according to his recollection, if he has any still, of this old case on that point.

15.	Furthermore, says Mr Wallington, it is prejudicial to the respondents if we allowed this point to be argued. He says that it raises the stakes for his clients in the sense that if this submission succeeded it might well result in a remission before a differently constituted tribunal with the unenviable prospect of another 17 days of hearing in relation to complaints, which ultimately, he would submit, were going to be rejected. That was prejudice which the Council were going to experience. He furthermore says that if this point was a good one, why was it not taken between the first and second tranches after the first decision had been given. Why were not steps taken to come to the Employment Appeal Tribunal to stop the second tranche from going ahead, having regard to the stopping of the first part of the case. He also points out the delay in this case and the fact a remission would be looking at events which had occurred years ago.

16.	On behalf of the appellant, Mr Tayler says that this is not an exceptional case within the meaning of exceptional cases referred in the reported decision. It is common-place in claims brought against Borough Councils for there to be a large amount of documentation and for the applicant to give evidence at length and to be cross-examined at length. That was not the sort of exceptional circumstance which was contemplated in the decision. In any event, he says, the fact that Mr Wallington relies on what happened at the second tranche and the giving of evidence by those witnesses shows what the potential prejudice to the appellant might be as a result of stopping the case at half time. He says that the question of prejudice should be judged as against the position at the time when the original Notice of Appeal was filed and the application for leave to amend or the preliminary hearing, as the case might be, in 1998. That is a period of some two years. He says that no prejudice can be established that was caused by that period of delay. If this point had been raised when the Notice of Appeal was first filed, there could have been no objection taken to it being argued.

17.	On this point I am satisfied that the point of no case to answer is a point which should be considered by the Employment Appeal Tribunal in due course. I am not persuaded that the Local Authority is prejudiced by the fact that this is a late amendment or late notification to them of the point. It really is not possible, I think Mr Wallington would accept to say that there was any identifiable prejudice in the two-year period between 1996 and 1998. I do not consider the point to be empty but I want to make it clear that in so saying it leaves open to Mr Wallington the opportunity to argue at the full hearing that the tribunal were entitled to stop the case as they did. All I need to be satisfied is that it is arguable that the Employment Tribunal erred in law in acceding to a submission of no case to answer in all the circumstances. I am satisfied that it is arguable, as I was when the matter was before the Court in 1998. That being so, I reject the submission which has been made and consider that this issue will have to be considered in due course.

18.	There was a dispute between the parties about whether the appellant had accurately or sufficiently set out his case in relation to the COT 3 agreement. My understanding at the present time though I may be corrected, is that having heard how Mr Tayler puts that point, Mr Wallington would not press that the Notice of Appeal be amended any further. The point was alluded to in the previous judgment and this judgment will make it plain the basis on which this argument is being put.

19.	Mr Wallington said in support of his submission in relation to the not put point, that the only effect of this point succeeding, if it were to succeed, would give rise to a right to a limited amount of damages for breach of contract rather than to the possibility that the case might have to be remitted.

20.	I do not need to express a view about that at this time. I hear what he says and no doubt in due course he will develop this argument before the Employment Appeal Tribunal, were he not to succeed on his primary contention that the Employment Tribunal did not misconstrue the COT 3 agreement. 

21.	I do not propose therefore to say anything further on that issue and unless the parties invite me to make any further order, it seems to me that in summary terms I am directing that there should be a letter sent to the Chairman of the tribunal for his comments on the question as to the cross-examination of witnesses in relation to the second tranche, that the judgment that was given at the end of 1998 beginning of 1999 should stand with those points identified in it proceeding for argument at a full hearing.

22.	It goes without saying that because of the delay in this case it would be desirable that this difficult matter be heard as soon as was practicable. It does seem to me unless the parties disagree, that because of its complexity in terms of the amount of material that there is available, a two-day hearing might be required.