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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> D'Souza v.Lambeth [2001] UKEAT 0395_99_2205 (22 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0395_99_2205.html Cite as: [2001] UKEAT 395_99_2205, [2001] UKEAT 0395_99_2205 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
(AS IN CHAMBERS)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
MEETING FOR DIRECTIONS
For the Appellant | MR D C D'SOUZA IN PERSON |
For the Respondent |
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
"I hereby make formal application for discovery of the documents listed below which I believe are essential if the EAT is to decide this appeal correctly:"
Then he sets out different categories of documents, 1-7. He bases his request for these documents on the fact that he says that a study of the Employment Tribunal decisions under appeal show that at points there are references in those decisions to the Tribunal having documents and, he says, he has not seen those documents. As an example he refers to the decision promulgated on 31 October 2000 which says, at its paragraph 8:
"We saw no reason to doubt what Miss McKane said. It was well documented and she had clearly been diligent in her searches compared with Mr D'Souza who seems to have done nothing to trace the document upon which he sought to rely."
He says of that expression, 'it was well documented'. "Well, what are the documents?" "I never saw them", he said. It seems to me that here the request is not, strictly, for discovery which is a process under which papers come forward from parties or third parties, but is for papers which, if used at all, have been used before the Employment Tribunal. So it is not appropriate to ask for discovery of these documents but, on the other hand, it does seem to me right that if the Tribunal did indeed rely on documents which Mr D'Souza can say he never saw, then he ought at least to see what they are said to be. So it is not an order for discovery, but what I shall do in respect of items 1-7 in his letter of 30 January 2001, is to write a letter on behalf of the Employment Appeal Tribunal to the Employment Tribunal and ask that if there are any documents within any of those 7 categories that were before the Employment Tribunal at the time of their respective decisions, then can copies be sent to the Employment Appeal Tribunal and, if any are thus received, they can then be passed on to Lambeth and to Mr D'Souza. I do not see it as appropriate to make an order against Lambeth, because that would be to set about the reception of evidence that was not produced before the Employment Tribunal, but a request to the Employment Tribunal itself in the manner that I have indicated seems to me appropriate.
"Mr D'Souza did not reply to that letter and told us that he had made no attempts to trace either of the references considering that it was the Council's job to do so. He told us that between 1992 and 1995 he had applied for 400 jobs but had never even been asked to an interview. He therefore did not know whether anyone had even requested a reference but considered that it was proper Local Government procedure to request references in respect of all job applicants. We have to say that based upon the Respondent's reply and the Tribunals own considerable knowledge of employment in the public sector, we very much doubt whether references would be taken up before shortlisting."
By his letter to the Employment Tribunal of 12 October 2000 at paragraph 14, page 25 in my present bundle, Mr D'Souza, commenting on the personal knowledge of the Tribunal, said:
"I believe that the real problem is that Mr Harrison has retired several years ago. I would submit that it is essential that the two industrial members of a Tribunal of first instance should be currently employed in order to ensure that their experience is really relevant."
That met with an answer under the heading "Refusal of an application for a review" dated 31 October 2000 that said:
"This is factually wrong, Mr Harrison, although he is now aged 70, is still at work and has worked in the public and the private sector for some 55 years.
What Mr D'Souza wants is details of Mr Harrison's particular experience. Of course, one of the points of having lay members of the Employment Tribunal is that cases are heard by persons with practical knowledge from both sides of industry and very frequently their personal knowledge is called upon. They are, time after time, referred to as "the industrial jury". Mr D'Souza recognises that it is appropriate for them to have their personal knowledge referred to but, he says, on a basis of authority, that when that is being done, certainly on any important point, it is prudent, at lowest, and perhaps even necessary, that the lay members should specifically announce to those in front of the Tribunal that personal knowledge is to be relied upon and its nature. No such announcement was made in this case, says Mr D'Souza. I would not think it appropriate to have Mr Harrison having to set out his personal experience in the way that Mr D'Souza invites, not, at any rate, as yet.
Mr D'Souza, what else today?
No I will leave it as it is thank you.
Miss McKie, any other points?