Appeal No.	 EAT/469/00 EAT/1279/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 April 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS T A MARSLAND
MR P A L PARKER CBE

MS N SIVANANDAN	APPELLANT

(1)	LONDON BOROUGH OF ENFIELD 
(2)	ENFIELD RACIAL EQUALITY COUNCIL 
(3)	MS CHANDRA BHATIA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

MR JUSTICE LINDSAY (PRESIDENT):

1	We have before us, by way of a preliminary hearing, five separate but related appeals in the matter Ms Natasha Sivanandan against the First Respondent, the London Borough of Enfield, secondly, some 16 named individual members of the Executive Committee of Enfield Racial Equality Council (sometimes called EREC) and, as the Third Respondent, (although in a sense, of course, if there were 16 separate ones this one would be more than a third) Ms C Bhatia, the Director of EREC.

2	In one of the appeals there is another party described on our papers as Mr S. Bell but that I do not think requires any further notice at this juncture.

3	The time now is about 7 minutes to 3 in the afternoon.  In the Practice Direction of the Employment Appeal Tribunal there is suggested a time limit of an hour for preliminary hearings.  We have only heard two of the appeals and we began quite early this morning not at 10:30 but not very long thereafter, certainly by 11:00 am.  So we have heard the matter at a length considerably greater than is customary but it is a difficult and complicated matter and it is right to hear it at perhaps greater length than is customary.  Also we have in mind that the Appellant, Ms Sivanandan, is in person, and she repeatedly makes the point that she is not a lawyer.  Nor she is, but she has addressed us with considerable vigour and has concentrated on a number of points, although one has to say that some points have been frequently repeated.

3	We shall at this juncture deal only with the first two of the appeals.  The only viable approach, as we see it, to the five, is to deal with them chronologically by reference to the respective dates of the Employment Tribunal Decisions which are respectively appealed against and hence we have begun with the first two.  But one needs to set out something of the background to the matter.

4	Ms Sivanandan was a Racial Equality Officer.  On 11 December 1996 she was dismissed from the office of being a Racial Equality Officer at Enfield Racial Equality Council, in other words EREC.

5	On 10 March 1997 (and it is a remarkable feature of this set of proceedings that one has to go back so far) Ms Sivanandan lodged an IT1 form of complaint for racial discrimination.  That was how she described the case as in box 1.  The Respondents were the London Borough of Enfield first, secondly the Executive Committee of EREC (not at that stage specifying individuals but framing the Respondent as the Executive Committee of EREC) and, thirdly, the Director of EREC, Ms C Bhatia.  In the course of that IT1 her claims are more fully set out than in box 1 because she not only refers to racial discrimination but to victimisation, unfair dismissal, breach of contract and sex discrimination.  So a wide-ranging case was framed.

6	On 19 March 1997 there was an IT3 from the Executive Committee of EREC and from Ms Bhatia.  The defence raised was that Ms Sivanandan had been dismissed for gross misconduct that had been established before a disciplinary panel.  Moreover, the allegation or defence was that it was a disciplinary hearing before a panel made up of a carefully racially composed group.  At paragraph 16 of the Notice of Appearance they say that:

“The disciplinary hearing took place on 9 December 1996.  The panel members were:
Dee Jethwa			Asian/female
Sam Knox-Hooke		African/male
Suhas Khale			Indian/male”

But the IT3 from EREC and Ms Bhatia also, at paragraph 31, said this (quite apart from several denials that were more expressly set out):

“Further, it is clear from the applicant’s originating application that the alleged incident upon which she relies in relation to her claim of sex discrimination arose on or before 18th May 1996.  The originating application was presented on 10th March 1997.  The applicant’s claim is therefore outside the three month time period for any such claim.  The Tribunal therefore has no jurisdiction to hear this element of the applicant’s claim.”

So that was an issue that was raised early on.  

7	On 25 March 1997 there was an IT3 from the London Borough of Enfield.  They say, amongst other things:

“It is not clear from the Originating Application why the London Borough of Enfield (“the Council”) is named as a Respondent since the Council was not the employer of the Applicant.  A preliminary hearing will be requested to determine this issue.”

And then, a little later:

“The Applicant was fairly dismissed by reason of gross misconduct.  In any event the Applicant has not been employed for sufficient period of time to bring a claim for unfair dismissal.”

And then, again, speaking of what the Council was going to say in defence:

“It did not discriminate against or victimise the Applicant on the grounds of sex or race and in any event the matters complained of are outside the statutory period for a claim to be brought (other than in relation to her dismissal).
There was no breach of the Applicant’s contract of employment.”

8	So one can see from the IT3s that there were a number of rather technical defences being deployed that would probably best be dealt with by being raised as preliminary issues.  

9	On 24 December 1997 there was a hearing at the Employment Tribunal.  The Decision was sent to the parties on 21 November 1997 and it dealt with a number of points.  It was a decision of, on the face of things, a three-person panel consisting of the Chairman, Mr Q. Barry and two Members, Mrs B.J. Cairns and Ms F. Robertson.  Then, as now, Ms Sivanandan was in person.  The Respondents were represented by two Solicitors respectively.  The unanimous decision of the Tribunal was:

“(a)		The Tribunal has jurisdiction to consider the Applicant’s complaint under the Race Relations Act 1976.
(b)		The Tribunal has jurisdiction to consider the Applicant’s complaint under the Sex Discrimination Act 1975.
(c)		The Applicant was employed by the First Respondent and the Second Respondent is dismissed from these proceedings [the second one now is EREC].
(d)		The Applicant’s application to amend her Originating Application in respect of an additional claim under Section 70 of the Employment Rights Act 1996 is refused.
(e)		The hearing is adjourned until 23 January 1998 when the Tribunal’s jurisdiction to consider the complaint of unfair dismissal and the Applicant’s application to join a number of named individuals will be considered, following which there will be a Pre-Hearing Review.”

So that was the first hearing and the first Decision.

10	On 23 January 1998 there was a second hearing at the Employment Tribunal and on 10 February 1998 that second Decision was sent to the parties.  Again, the Tribunal was at Stratford and, on the face of things, it had Chairman, Mr Q. Barry and Members Mrs B.J. Cairns and Ms F. Robertson.  The unanimous decision of the Tribunal was that:

“(a)		The applications by the Applicant and the Respondent for a review of the Tribunal’s decision of 24 October 1997 are granted.
(b)	The Tribunal reviews that decision and makes the following amendments to it.”

And then they say that:

“(d)		The Applicant’s application to bring a claim under the Equal Pay Act 1970, being out of time, is dismissed on withdrawal by the Applicant”

And that got that out of the way.  They added, or changed, a paragraph 14 so it read:

“14  The Tribunal accordingly dismisses the Second Respondent from these proceedings; the issue of whether the Third Respondent is properly a party in relation to the Applicants allegations of racial discrimination and sex discrimination is deferred until the next hearing.”

There were then some rather more detailed changes.  Paragraph (c) said:

“(c)	That the Applicant’s unfair dismissal claim be dismissed on withdrawal.
(d)		The Tribunal has jurisdiction to consider the Applicant’s claim for damages for breach of contract.
(e)		That the Applicant’s application for leave to amend the Originating Application to join sixteen individual defendants be refused.
(f)	That the Second Respondent Ms C. Bhatia is properly a party to these proceedings.
(g)		That all remaining matters arising in relation to this preliminary hearing, and the pre hearing review, be adjourned until Friday 20 March 1998.”

So that was the second hearing and the second Decision.

11	Then on 20 March 1998 there was a third hearing at the Employment Tribunal and on 9 April 1998 that Decision was sent to the parties.  Again, on the face of things, judging from what the decision of the Industrial Tribunal in the form sent out to the parties actually says, the panel consisted of Mr Barry, Mrs Cairns and Ms Robertson.  We do not need to read all of the Decision but paragraph (c) of the unanimous decision said, “The future conduct of this matter shall be in accordance with the following interlocutory order” and then the Applicant was obliged to give further and better particulars within three weeks.  She was also obliged to give particulars to Ms Bhatia within four weeks.  There was a provision about a tape recording.  Subparagraphs (iv) to (vii) state:

“(iv)	the Applicant may deliver a request for further and better particulars of the Notice of Appearance of the Second Respondent within three weeks of the date hereof and the Second Respondent will furnish such particulars within three weeks thereafter;
(v)		orders for discovery will be made after the Tribunal has considered written submissions from the parties;
(vi)		this case will be listed for a full merits hearing but not until after the disposal of the Applicant’s appeal to the Employment Appeal Tribunal;
(vii)	when listed it is to be for 15 days before a differently constituted Tribunal.”

There was a requirement as to bundles of documents and witness statements and their exchange.  It was provided that “witness statements are to be exchanged between the parties two weeks before the hearing”.  That is the third Decision and the third hearing.

12	On 21 and 22 September 1998 there was a fourth hearing at the Employment Tribunal and on 8 October 1998 that fourth Decision was sent to the parties.  This time it appears, on the face of the Reserved Decision of the Employment Tribunal, that the panel consisted simply of Mr Barry and Mrs Cairns.  The decision was unanimous and an application by Ms Sivanandan for a review of the decision of 20 March was refused but, more importantly for immediate purposes:

“(ii)		The Applicant’s application that the Second Respondent be debarred from taking any further part in the proceedings, on the grounds that she had lodged no Notice of Appearance, is dismissed.
(iii)		The parties should give discovery of the documents referred to in the orders attached hereto.
(iv)		The Applicant and the Second Respondent should give the further and better particulars referred to in the orders attached hereto.
(v)		A witness order is granted against Mr S Bell requiring the production of the documents referred to in the order attached hereto.
(vi)		The parties should comply with the directions given below as to the tape recording of the Applicant’s disciplinary hearing.”

13	That, as will have been seen, foreshadowed an appeal to the Employment Appeal Tribunal and on 2 February 1999 there was a hearing at the Employment Appeal Tribunal.  It came before the President, Morison J, sitting with Mrs Vickers and Mr Willis on 2 February 1999 and it would be right to read some passages from that judgment.  As to the question of whether EREC should be a party and, in particular, should be a party by way of its committee members being joined as individual Respondents, at paragraph 5 the learned President said:

“Accordingly, we allow the appeal and order that the numbers [members] of the executive committee for the time being at the date when the proceedings were instituted should be named and added as parties to the proceedings, and that it will be for the Employment Tribunal to decide in due course, whether rather than having 16 names, it would be preferable to have just one person who was going to be speaking on behalf of the executive committee.”

So that was an issue that Ms Sivanandan had succeeded on.  

14	Discovery is a subject we are going to be concerned with and there are some comments in the judgment of the EAT that bear on that subject.  Thus, in paragraph 8 the learned President says:

“It seems to us to be consistent with that approach to the evidential difficulties in discrimination cases, that Tribunals should be prepared to be generous in the orders for discovery which they make in cases such as these.”

In paragraph 11, he adds:

“It seems to us that, what is required by the Employment Tribunal, is for them to look at the material in relation to certain named people who Ms Sivanandan will supply (which runs to four to five names), to see whether any of the statements that those people made, and any of the notes of evidence of those people at the enquiry, will or might cast light on the motivation of those who are relevant to the issues in these proceedings.”

In paragraph 13 he says:

“ …it does seem to us that the Tribunal should carry out an examination of that documentation to satisfy itself, whether it may provide some useful information to the Applicant, or to the Respondents, and cast light on the motivation and intentions of those parties.”

In paragraph 16, the EAT says this:

“In the light of our decision as to the parties, it is right that, there should be a further directions hearing before the Employment Tribunal at which any outstanding questions of discovery against EREC can then be considered.  We propose to say nothing more about those items other than that it must be considered by an Employment Tribunal.”

Rather more generally the Tribunal said, in paragraph 22:

“This is a case which broadly speaking, in the view of the Employment Appeal Tribunal, that is myself and my colleagues, has got quite out of control and out of proportion.  There have been legal arguments about the identity of the parties, arguments about discovery, arguments about particulars, and it seems to us, that what is needed is for an early hearing date, so that the interests of justice can be served by the Tribunal themselves, adjudicating on the contentious issues between the parties.”

And, as bias is another subject we will have to return to, we note this;  that in paragraph 28, having begun by saying “We allowed the appeal against the Order for Further and Better Particulars which was made by the Chairman” (so that that was another success on the Appellant’s part) the EAT continued:

“I wish to make it plain that although there were allegations of bias, which were raised by Ms Sivanandan, and not formally abandoned, it would appear to us, from a reading of the Tribunal decisions, that Mr Barry and his colleagues have endeavoured to give proper consideration to all the issues before them.  The fact that we disagree with their approach in law to the question of discovery and to the appropriateness of Further and Better Particulars, should not be taken to imply a serious criticism of his conduct of the proceedings; indeed very much to the contrary.  Looking at the decision which was given in relation to these interlocutory matters, we would respectfully say that he is to be congratulated for the care with which he has sought to approach them.”

That was the first hearing at the Employment Appeal Tribunal.

15	To revert to dealings at the Employment Tribunal level on the 1, 2 and 3 February 2000, there was a fifth hearing at the Employment Tribunal and this is the Decision against which we are now considering an appeal.  The Decision was sent to the parties on 24 February 2000 and, on the face of things (and no one says otherwise) this was a panel simply of two, Mr Q. Barry and Mrs B.J. Cairns.  The decision was as follows.  

“(a)	The parties to this case are as set out above.”

And that sets out firstly the London Borough of Enfield, then 16 named individuals of EREC and lastly Ms Bhatia.

“(b)		The parties should give discovery of documents as set out in the copy orders annexed to this decision.
(c)	The full merits hearing is listed to commence on Tuesday 5 September 2000.
(d)	The parties should comply with the further directions set out below.
(e)	The witness order made against Mr S Bell is set aside.”

16	So far as concerns discovery or disclosure required to be made by Ms Sivanandan, the order was for it to be done by 30 March 2000 and the form of order was this:

“All those documents in her possession or power relevant to the issues in this case and on which she intends to rely.”

There were extensive orders for discovery made against the London Borough of Enfield.  It was done by categorising the documents by reference to letters of the alphabet and they run from (a) to (t) and extensive orders for discovery by EREC were made running from (a) to (f), so that there were considerable orders made in Ms Sivanandan’s favour against those parties for disclosure.  So Ms Sivanandan had had a substantial victory but she lodged a Notice of Appeal, as she was perfectly entitled to do, because there were some aspects of which she wished to complain.  She lodged a Notice of Appeal of 4 April 2000 and it, broadly speaking, makes three points.  It is convenient first to deal with the second and the third.  The second point is this.  

“The decision or order of the Tribunal in that the date set by which I should provide a list of all the documents on which I intend to rely, (i.e. by 30th March 2000), was an error in law and was unreasonable and perverse and one no reasonable tribunal could have reached given all the relevant circumstances of the case and given that the date was prior to or the same as disclosure of key documents by the Respondents and it was not a date with which I could physically comply as a litigant in person.”

17	This, as it seems, presents a real misconception on the Appellant’s part.  She was not required to disclose all documents on which she intended to rely, but all such documents of that class as were in her possession or power.  If she had not received a document from the Respondents, or indeed from anyone else, that document would not be in her possession or power and the argument that she raises in the paragraph in the Notice of Appeal is, as it seems to us, totally without substance.  We see no arguable error of law in that second ground of her Notice of Appeal of 4 April and therefore that particular argument is not to go to a full hearing.

18	The third ground is this:

“I believe that the decision / orders of the Tribunal are indicative of bias against me and this is a complaint that I have consistently made, (see earlier EAT case nos. noted above).”

A mere belief cannot suffice to ground a complaint of bias, nor can it suffice as a ground that the decision complained of was contrary to the complainant, nor does it suffice that the complaint has been made previously.  However, Ms Sivanandan has sworn an affidavit on the subject and, of course, has addressed us today.  The affidavit was sworn on 16 May 2000 and she says, amongst other things, this:

“This appeal concerns the decisions made at the last preliminary hearing and this affidavit concerns my complaint of continuing bias by the Stratford Employment Tribunal panel who dealt with me, who are the same people involved in the earlier hearings.”

19	Of course, the very fact that they are the same people who were involved in the earlier hearings is not an indication of bias; it is very common, and is done with a view to economy of time, that one panel that has heard one part of the proceedings should hear another part of the proceedings simply because they have already spent time in getting to know the case.  She makes the point that she had complained of bias in the earlier hearings.  In paragraph 7 she says:

“As the earlier complaints of bias have never been formally abandoned and as what I am complaining about is a continuing issue of bias, as evidence on this matter, I rely on the two earlier affidavits submitted by myself dated 13th April 1998 and 18th December 1998, to which the Tribunal Chair and the wing member and the lawyers for the Respondents have already replied in writing.  All these documents are lodged with the EAT already.

But unless she can show bias relative to the hearing under appeal, her complaint should fail because it does not follow that even a biased tribunal could not later reform itself.  Moreover, the earlier complaints have still not been considered.  We cannot take a view that the claims as to bias were substantiated or that they were not because they were not dealt with at the Employment Appeal Tribunal, as we have seen, and have not since been revived to be dealt with.  It is to be remembered that in the passage that we read from the judgment of the Employment Appeal Tribunal Morison J made the point that the earlier claims had not formally been abandoned but equally, although he obviously did not hear argument on this, he and his colleagues took the view that Mr Barry and the members of the Employment Tribunal had endeavoured to give proper consideration to all the issues before them.

20	It does, however, seem to us that to some extent, even a complaint as to the February 2000 hearing must bear in mind that there had been earlier complaints on the subject of bias.  But the particular complaint that is made, relevant to the hearing of February 2000, is this:  it appears in paragraph 9 of the affidavit of Ms Sivanandan.  She says:

“At the end of the second day of the hearing (2nd February 2000) Ms Bates for the Respondents, requested delivery of documents relating to other legal action alleging discrimination that I have taken against other bodies and mentioned a few, which were taken after I was dismissed from my job on 11th December 1996.  I argued that these issues were irrelevant to the matters to be determined in this case as they occurred after my dismissal, (the main act about which this tribunal case is about), though one case taken by myself many years before my employment with the Respondents was relevant and was known to the Respondents already.  I argued that such evidence could only be for the purpose of what I called ‘character assassination’ and I asked the Tribunal to rule that they were inadmissible.  The Chair of the Tribunal said as it was nearly the end of the day, he would defer the matter and hear argument the next day and also he wished to look up a case relating to this issue.  The following day, the Tribunal heard Ms Bates’ arguments as to why such evidence was relevant and her arguments are summarised in the Tribunal written decision dated 24th February 2000 … .  However, when I started to speak, the Tribunal Chair would not allow me to speak on the issue at all and said, ‘This is one occasion, Miss Sivanandan, when you will not speak’ and instead presented his own sheet of paper on the issue of ‘credit’ which referred to case law and he gave a copy to all the parties.  On the basis of this, the Tribunal ruled that this issue was not relevant as its sole purpose was to impeach the credit of a party, and discovery was refused.  However, the point here is in relation to bias, because the Chair did not allow me to speak on this issue.”

And she concludes the paragraph a little later by saying:

“I believe that any reasonable observer of the proceedings would have concluded that there was bias in not allowing me to speak on this issue and in failing to note my request, made on the previous day, that such evidence should be ruled as inadmissible.”

This, it seems, is something of a misconception on Ms Sivanandan’s part.  The Chairman plainly stopped her as he was totally in her favour.  If, which I doubt, he had a closed mind, it was one closed in her favour.  The Tribunal held on this subject:

“Ms Bates and Mr Cawston applied for the production by the Applicant of all pleadings in respect of all claims brought by the Applicant against other bodies in which discrimination was alleged.  Ms Bates said that there appeared to be striking similarities between the allegations made in such cases and in the present case.”

A little later the Tribunal said:

“The Tribunal was mindful of the fact that discovery solely for the purpose of impeaching the credit of a party should not be ordered.”

And then they refer to two cases Valentine and EF Music and continued:

“It appeared to the Tribunal that the sole purpose of seeking this discovery was intended to assist the Respondents in demonstrating the untruthfulness of the Applicant, and accordingly went directly to the question of her credit.  The application was accordingly refused.  The Tribunal noted that such documents are in any case a matter of public record.”

21	The Chairman in stopping her was doing no more than avoiding unnecessary waste of time, as it seemed to him, at that juncture in the case. Ms Sivanandan herself accepts that she thinks that the Chairman thought that he was being helpful.  Contrary to her submission on the point, we would think that no reasonable observer could have concluded that there was bias against her from this incident.  This is an argument that Ms Sivanandan has repeated several times to us and she moves from it on to the point that had she not been stopped she would have wished to assert that, in any event, the Respondent should not be permitted to adduce evidence of those other allegations, even evidence obtained by them by routes other than involving the disclosure that had just been declined.  However, that, strictly speaking, was not a point for the Tribunal to decide upon.  They had heard an application from the Respondents for a particular kind of discovery and they refused it.  That was the issue that was in front of them.  The issue of whether it would be appropriate to bar them from producing evidence obtained by other means was not an issue for them at the time and they had no need to hear anyone on that unrelated and, as matters immediately stood, that unraised subject.  Even if it had been raised the almost inevitable conclusion of an observation that the Respondents ought to be barred from producing such evidence, however obtained, would almost bound to have been that the best time to raise that point was if and when the Respondents sought to adduce or had indicated that they would wish to adduce that sort of evidence.

22	Ms Sivanandan complains, basing herself on this incident, that she formed the impression that she was not being listened to but that really is not a fair criticism of the Tribunal.  They had made very substantial decisions in her favour in giving detailed discovery orders in her favour and plainly they had listened to her.

23	Ms Sivanandan has drawn to our attention the definition of institutional racism that emerged from the well known Macperson report but she accepts that what she is saying is that there was nothing intentional or deliberate or even necessarily conscious on the part of the Stratford Tribunal but, nonetheless, that they were infected by institutional racism within the definition that she has drawn to our attention.  But that sort of case, which is obviously a serious case, does need some clear evidence to back it up and, as Mr Parker sitting here drew to her attention, it is the sort of argument that needs at least a statistical background but no statistical background has been laid in front of us.  We have no material that could lead to a conclusion of institutional racism within the definition having infected either the Stratford Tribunal as a whole or the particular members who heard the case in February 2000.

24	There is, however, one point that does need a little further attention.  Would it be right at this juncture to allow Ms Sivanandan to complain that, at the hearing on 1, 2 and 3 February 2000, the matter came before a panel of only two rather than three?  Moreover, one gathers from the way Ms Sivanandan has framed her argument that Mrs B.J. Cairns is an appointee on the employer side and that hence it was a lay member on the employee side that was missing from the Tribunal.  There is no hint that she had not been content to proceed with a panel of two at that hearing on 1, 2 and 3 February 2000.  She had, indeed, complained as to an earlier hearing in March 1998 that she had had only a panel of two and she was therefore plainly conscious of an ability to object.  But today she tells us that she had understood that she had, in effect, lost the right to complain of a panel of only two because that was something that she had understood that the Chairman had indicated to her.  The version that we have is that at or after an earlier hearing when she had complained of a panel of only two and had then agreed to a panel of only two, she was led to believe that once she had thus agreed to a panel of two in one earlier case she had, in effect, lost the ability to complain of a panel of only two in all subsequent cases.  She has sworn an affidavit on this subject and looking now at that affidavit, sworn on 21 December 1998, she says:

“At the start of the hearing on 21 December I asked why only one wing panel member was present.  I had gone to all the trouble and expense of providing three bundles for the panel.  The Chair explained that as the absent panel member had missed the 20th March hearing she was not allowed to attend any subsequent hearings.  I asked why this had not been explained to me previously and pointed out that, as a litigant in person, I had not known this.  This is an example of a breach of the EAT guidelines of the Chair failing to explain procedures to me as a litigant in person.  Had I known that if I agreed to a two person panel for one hearing on 20 March 1998 this decision meant that thereafter for all subsequent preliminary hearings the panel would consist of only two members, I would not have given my consent.  Clearly the lawyers understood this but I did not and this should have been clearly explained to me when the earlier consent was being sought.”

25	I might say that there is another affidavit of 17 March 1998 which touches on the subject but does not give any grounds for suggesting that Ms Sivanandan had heard something that should have led her to consider that, by consenting once to two members, she had in effect consented at all times thereafter to two members.  But this is puzzling, or at any rate puzzles us on the information which we have because we do not, at first sight, see on what ground it could have been said, if it was, that because an absent panel member had missed the 20th March hearing she (that is presumably that absent panel member) was not allowed to attend any subsequent hearings.  Nor would we understand why, because of illness, on one occasion a panel of two was consented to, a panel of those two plus another could not have been constituted and should not have properly been constituted at later hearings.  This is a difficult area because of absence of information on the part of the Tribunal.  It is not a question on which we have useful information.  That particular allegation and the way, if at all, on which it gives rise to an indication of bias or of the appearance of bias is a matter that we think right to adjourn.  It will continue to be a preliminary hearing but we will, at the Employment Appeal Tribunal, frame a letter to be sent to the Employment Tribunal at Stratford, to get comments on the passages in the affidavit which we have referred to, to find out what, on the Tribunal’s side, it is said was said at the time and whether there was any possibility of misunderstanding on Ms Sivanandan’s part.  That aspect of the bias complaint we adjourn, still to come back as a preliminary hearing.  

26	When we have heard from the Employment Tribunal we will obviously send the relevant information on to Ms Sivanandan and, indeed, to the other parties but we do not think it would be right to direct it to go straight to a full hearing because it would be something of a sledgehammer to crack a nut if it turns out that the matter can be resolved as a simple matter of fact.  But, leaving that aspect of bias aside and adjourning it in the matter that we have indicated, we revert to the view that otherwise no reasonable observer would have, or could have, concluded that there was bias for the reasons that we have given and on this part of the case we elect that Ms Sivanandan’s complaint should go no further.

27	That leaves the ground that was in fact the first ground in her Notice of Appeal of 4 April 2000.  It reads as follows:

“The decision or order of the Tribunal in refusing discovery of some documents held by the Respondents, (e.g. refusing access to uncensored minutes of meetings), was an error in law and was unreasonable and perverse and one no reasonable tribunal could have reached given all the relevant circumstances of the case and the relevance of the documents to issues involved in my claims and given in the earlier EAT decision in this case. …”

And then there is a reference to the judgment of Morison J in the EAT in the consolidated cases, passages of which we have already referred to.

28	It is very difficult for us to have the same feeling as to what is relevant or not relevant to the case as the Tribunal had because the Tribunal had developed its feeling for relevance or irrelevance over many days spent hearing the case and, of course, we have not had anything like that exposure.  We must therefore approach the decision of the Tribunal below with that in mind and we must also bear in mind that we are only empowered (and it cannot be over-emphasised to Ms Sivanandan) to deal with errors of law.

29	Where a discretion is conferred on a Tribunal, such as arises in questions such as disclosure, it is not enough to say that the Employment Appeal Tribunal would surely have decided other than the Employment Tribunal had done but rather there has to be shown a case that no reasonable Employment Tribunal, properly instructing itself, could have decided as this one had, or that material matter which should have been considered was left out, or that a matter that should not have been considered had been brought into the case.  It is quite a difficult burden when what one is appealing as an Appellant is against a matter which is discretionary.  It has to be remembered, too, that the whole attitude, so to speak, of Employment Tribunals to disclosure is not one that encourages disclosure.  Whereas in the High Court disclosure is automatic, there is no such provision for automatic disclosure in the Employment Tribunals and, although one recognises that there are difficulties likely to be found in the way of a person alleging racial discrimination or sex discrimination they have been substantially countered by Parliament and by the rule-makers by giving the unusual ability to raise questionnaires in such areas Ms Sivanandan has achieved very considerable orders for discovery in her favour.  The only specific example her Notice of Appeal gives of alleged perversity in the refusal to give her discovery is the example she gives of “uncensored” (as they are called) minutes of meetings of EREC.  The Tribunal had in mind the general approach to the question of discovery which the Employment Appeal Tribunal had enjoined it to have.  In their paragraph 3(a) they say:

“In reconsidering her applications for discovery, and the previous orders made, this Tribunal has therefore had regard to the letter and spirit of the decision of the EAT.”

But also, against that, in their 3(b), they say:

“(b)  Nonetheless, the parties are reminded that in compiling an agreed bundle they should include only those documents actually relevant to the issues and necessary for the just disposition of the case.  In making orders for discovery the Tribunal has also had regard to the general principles of discovery in civil cases, since its powers as set out in Rule 4(1)(b) are to order such discovery and inspection (including the taking of copies) of documents as might be ordered by the County Court.”

Well, category after category of documents was ordered to be disclosed in the Appellant’s favour.  So far as concerns the particular example, which Ms Sivanandan has selected, of the EREC minutes they say this:

“The Tribunal also reconsidered the question of the production of the minutes of meetings of the Executive Council of EREC and its various sub-committees.  A bundle of these had been produced to the Applicant with items, which, in the view of EREC, were irrelevant, blacked out.  Having seen an unedited copy of the minutes the Tribunal ordered that a number of those blacked out should also be disclosed.  The Tribunal has carefully considered the Applicant’s argument that she should have access to all the minutes; having again considered those withheld, the Tribunal is satisfied that they are not relevant to any of the issues in the case and no order is made in respect of them.”

30	It would be very easy to suppose that at any given meeting of EREC matters entirely unrelated to Ms Sivanandan would, from time to time, be considered.  Those minutes of those meetings would thus touch on matters completely unrelated to her case.  Very similar problems come up very frequently, for example, with local authority Council meetings and with meetings of companies and the common practice is (to use the technical term that is applied to this) to “redact” the minutes by excluding completely irrelevant or privileged matter.  That is a very sensible process and it seems to have been adopted here.  The order made does not really seem clearly to identify the extra matters that were intended to be disclosed within the phrase “Having seen an unedited copy of the minutes the Tribunal ordered that a number of those blacked out should also be disclosed” but there is no doubt that it is clear enough to the parties who heard it and heard the argument on the point.

31	What is now further sought, the Employment Tribunal having seen an unedited copy of the minutes, is matter that, having seen that unedited copy, the Tribunal below took to be irrelevant to the issues in the case.  We cannot accept that that decision was perverse merely because Ms Sivanandan says it was and yet there truly is no other basis for her argument.  She urges that it is she and not the Employment Tribunal that is the person best able to judge relevance but that is not a proposition that any court or tribunal could accept.  We see no arguable error of law in this first heading and it is not to go to a full hearing.  

32	Having thus dealt with all three paragraphs of the Notice of Appeal and having found no arguable error of law in any of them, leaving aside the adjourned issue to which we have specifically referred, we would (that apart) dismiss the appeal in the original form of the Notice of Appeal of 4 April 2000 but, for the reasons we have given, we have set aside and adjourned the separate issue which we have identified.  This, though, is by no means an end of the matter.

33	On 16 May Ms Sivanandan sought to amend her Notice of Appeal.  She fears, despite the Respondents not obtaining discovery from her as to the earlier claims that she has made against other bodies, that evidence of that kind might well be introduced by one or more of the Respondents.  This is a subject which is returned to in the subsequent Notices of Appeal.  Simply dealing with it as a matter of requested amendment to the Notice of Appeal of 4 April 2000, we refuse leave to amend in the manner in which it was sought in paragraph 4 of the attachment to her letter to the Employment Appeal Tribunal of 16 May.  There is no formal decision on the point in the Employment Tribunal decision which is here under appeal and so there is nothing to be appealed against.  So that first form of amendment is refused.

34	Then, by letter of 28 July 2000, Ms Sivanandan applied for a further amendment to the Notice of Appeal.  That is framed as follows (pages 116 and 117 in our bundle).  She asks that the amendment should be to set aside the order dated 24 February 2000 “in relation to the mutual exchange of witness statements by 1st August 2000, pending the outcome of the appeal to the EAT in the above matters” and, a little later, in paragraph 6 “To set aside the order dated 24th February 2000 in relation to the hearing date set for the full merits hearing”.  But that cannot be.  Whether the order of 24 February 2000 is to be set aside is already the subject of the Notice of Appeal.  There is no need to add that as a ground or as a matter of appeal.  It is already in issue.  Of course Ms Sivanandan could have asked for an amendment or have made application for a stay pending an appeal but there is, in front of us, no application for an amendment as to a stay.  We refuse leave to amend in this second form, as sought in the annexure to the letter of 28 July 2000, not simply on the technical ground that a stay was not asked for but also because we have not been told what the practical effect of a stay until today would have been.  In other words, what application already made or steps taken would have been improper or less proper had the stay been granted or asked for earlier?  This is a subject which will arise in a rather different form in the later appeals.  But, simply looking at it as a matter of leave to amend the Notice of Appeal of 4 April 2000, we would refuse to appeal in the way that it was sought.  

35	Still the matter is not at an end.  On 3 April 2000 the Chairman purported to set aside the order for discovery to be made by Ms Sivanandan and replaced it with another.  It will be remembered that the decision of 24 February was not by a Chairman alone so what power there was to set aside the decision at the instance of a Chairman alone may well be debated.  But the letter which deals with the point is a letter of 3 April 2000 and it says this, amongst other things:

“It is reasonable for all parties to be bound by orders for discovery in similar terms, apart from specific orders for discovery of particular documents.  The order for discovery on the part of the Applicant is accordingly set aside, and substituted by an order that the Applicant will not later than 5 May 2000 disclose to the Respondents all the documents in her possession on which she intends to rely, with inspection 14 days thereafter.  Similar orders are made against the respondents.  The relevant order is enclosed with this letter.  If after reviewing the process of discovery the Respondents or any of them are satisfied that they have complied with the order made, they should notify the Applicant accordingly.”

And the order of 3 April to which that refers says:

“The Tribunal HEREBY ORDERS the Applicant to send to the Respondent’s representative on or before 5 May 2000 a list of such of the documents specified below as are or have been in the Applicant’s possession or power and to send a copy of the list to this office.

And then, what is typed in:

“all documents in her possession on which she intends to rely.”

And, it continues:

“AND on reasonable notice 14 further days to produce the documents for inspection at:
a place agreed between parties
and permit copies to be taken.”

There is no appeal before us as to that order of 3 April, at any rate in this part of the case, and therefore nothing is required by us to be done upon it but again it is to be noticed that what is required of Ms Sivanandan is only that she should produce documents which have both characteristics, namely that they are or have been in her possession or power and that she intends to rely upon them.  There was no obligation on her to produce that which was not in her possession or power which, of course, would have been unreasonable.

36	The letter of 3 April (to revert to it) says this, in its paragraph 4:

“The Chairman has considered the requests that the Applicant disclose all notes of meetings and telephone conversations and the passages from her personal diary relating to the issues for the decision by the Tribunal.  These are clearly material, whether or not the Applicant intends to rely on them.  The Chairman notes that the Applicant has agreed in her letter of March 30 to produce these and will not at this time require an order.  Should these not be produced by 5 May the Respondents may apply for a specific order for this discovery.”

This paragraph has caused some distress to Ms Sivanandan because she says, no doubt rightly, that her personal diary is exactly that and it is largely irrelevant and certainly personal.  But, in fact, if she is right in what she tells us, the Chairman misunderstood the position in that she says that she had not agreed in her letter of 30 March to produce the documents.  He obviously made that comment on the basis that she had already agreed.  If there was a misunderstanding it can be cleared up, no doubt, but for us the important part is that there was, in fact, no order for discovery of the personal diaries or any other documents other than in the category we have just described in the order itself.  The Chairman went on to say, “Should these not be produced by 5 May the Respondents may apply for a specific order for this discovery” which makes it quite plain that, as yet, there has been no order for discovery of that particular class of documents and hence nothing that can be appealed against.  So much, then, for the Notice of Appeal of 4 April and matters relating to that.

37	Turning to the second Decision, there was a hearing at the Tribunal on 15 August 2000.  The Decision was sent to the parties on 23 August 2000.  This time the Tribunal consisted of the Chairman, Ms V.K. Gay and two lay Members, Mrs S. Elliott-Jones and Mr D.J. Horn and the decision was as follows.  It was unanimous:

“(i)		the applications of the Respondents to strike out the Applicant’s claims for failure to comply with the Order dated 4 April 2000 relating to discovery are dismissed;
(ii)		the Order relating to discovery by the Applicant sent herewith (and dictated to the parties during the course of the hearing) is made;
(ii)		the direction made at the hearing on 1-3 February 2000 in respect of mutual exchange of witness statements is set aside and replaced by the Order sent herewith.
(iv)		the Applicant’s application to postpone the hearing on the merits fixed for 35 days from 5 September 2000 was not pursued.  At the suggestion of the Applicant the Tribunal has made a direction in respect of obtaining relevant evidence, as set out below, and this matter may be pursued by the Applicant on 5 September 2000 if she wishes to do so;
(v)	in respect of the Applicant’s applications to amend her Originating Application:-
(a)	the application for leave to allege direct sex discrimination by the First Respondent in consequence of treatment of the Applicant arising from a supposed sexual relationship between the Applicant and a Councillor is refused;
(b)	the application to add victimisation under the Sex Discrimination Act in respect of the Applicant’s complaints about the appointment to Mr Shaik is permitted and the paragraph numbered 3 on the Applicant’s letter to the Tribunal dated 29 May 2000 shall stand as that amendment;
(c)	the application to add or to amend the breach of contract claim is adjourned to be dealt with on 5 September 2000.
(vi)		the applications of the Respondents to introduce into the full hearing documents (essentially pleadings) relating to other discrimination claims brought by the Applicant and/or to cross-examine the Applicant about such claims are refused.”

38	The order for discovery by the Appellant was specified in some detail in pages which in our bundle are describable as B15 and B16 and, indeed, running on to B17.  The order against Ms Sivanandan was endorsed, inter alia, with the familiar paragraph which says:

“Failure to comply with Orders for INSPECTION and/or FURTHER PARTICULARS and/or WRITTEN ANSWERS may result in the Originating Application / Notice of Appearance being struck out in whole or in part before or at the hearing and the proceedings dismissed or the Respondent being debarred from defending altogether.”

And the order was made for witness statements.  That was in shorter form.  It required the parties:

“To prepare witness statements from which their witnesses will read when giving evidence before the Tribunal at the hearing of this matter and that on or before 4 pm on 25 August 2000 you send to the other parties copies of your witnesses’ statements as you intend to rely on them for evidence in chief at the full hearing of this matter.”

And that was endorsed with the similar warning shot.  That decision (sent to the parties, as I mentioned, on 23 August 2000) attracted a Notice of Appeal from Ms Sivanandan dated 2 October 2000 and also an application to amend to add a further ground, an application made on 11 January 2001.  The aspects appealed against are four in number and the first one is this.  

“The decisions being appealed are as follows:
(a)  the refusal to postpone the full merits hearing listed to last for 35 days and due to commence on 5 September 2000 on the grounds that there was an appeal against an interlocutory decision regarding the discovery of documents in the case due to be heard by the EAT and despite the fact that EAT had said that it would hear my application to postpone the full merits hearing in order to deal with the appeal on discovery issues, at a hearing for directions on 13 October 2000.”

The Tribunal’s conclusion on that point, as we have already cited it, is as follows:

	“The Applicant’s application to postpone the hearing on the merits fixed for 35 days from 5 September 2000 was not pursued.  At the suggestion of the Applicant the Tribunal has made a direction in respect of obtaining relevant evidence, as set out below, and this matter may be pursued by the Applicant on 5 September 2000 if she wishes to do so.”

The circumstances in which that had arisen were set out by the Tribunal in their paragraph 5 in our bundle B9 and reads as follows:

“(i)		The Applicant had notified the Tribunal of her intent to apply to postpone the full hearing, in part by reason of her ill-health.  She recognised that she had no current medical evidence, explained that she had attended at her GP yesterday (ie Monday 14 August 2000) and told us that she expected to be able to pick up a letter/certificate on Friday 18 August 2000.
(ii)		At this juncture the Applicant’s McKenzie friend spoke with her and the Applicant proposed that the Tribunal should write to her GP posing appropriate questions so as to establish her fitness (or otherwise) to conduct these proceedings now and from 5 September.  With the assistance of the Applicant, her McKenzie friend, Mr Cawston and Miss Bates the Tribunal drafted a suitable letter.  The Applicant undertook to leave at the Tribunal a manuscript authorisation for the Tribunal to send the GP in respect of this correspondence and she subsequently did so.  The Tribunal’s letter (a copy of which is annexed to this decision) has been sent with the authorisation.  It is hoped that the GP will reply to the Tribunal but if she does not the Applicant has undertaken and is directed straightaway to send copies to the Tribunal and the Respondents’ representatives.
(iii)		The Applicant will decide how, if at all, she wishes to use this latest medical information.  If she intends to seek an adjournment of the full hearing, she will do so at its commencement.”

39	There was no current medical evidence before the Tribunal when they heard the matter on 15 August 2000.  Yet an application was being indicated as to be made for an adjournment on medical grounds.  The Tribunal made sensible arrangements for medical evidence to be adduced and left the question of whether there should be an adjournment based on that medical evidence at what was then foreseen to be a later main hearing.  The point that Ms Sivanandan makes on this is that:

“The refusal to postpone the full merits hearing pending the decision of the EAT as to my application to postpone the full hearing (due to be heard on 13 October) was wrong in law and was perverse and unreasonable in the circumstances of this particular case”.

But it was, as it seems to us, the best that the Tribunal could do in the circumstances.  No arguable error of law can be discerned by us in this part of the Notice of Appeal and this issue is not to go to a full hearing.  Nor is it arguable that the Tribunal’s decision on the point was indicative of bias.  It is, as it seems to us, indicative only of good practical sense and a wish to make just arrangements between the parties.  So much, therefore, for that first ground in this Notice of Appeal.  The second ground is this.  It is marked (b):

“(b)  the decision and orders relating to discovery and the production and exchange of witness statements between 18th and 25th August, despite my information that my GP was writing a letter to say I was unfit to prepare for and attend a 35-day tribunal hearing and that this letter would be received by the Tribunal on or by 18th August.”

On this part of the case the Tribunal said:

“We heard the Applicant and the Respondents at length about both specific and general discovery.  With their assistance the Tribunal was able to make a general list (by subject heading) of documents in the Applicant’s possession, custody or control which it was agreed were or were likely to be relevant and necessary to the resolution of the issues before this Tribunal.  The Applicant expressed herself willing to give discovery of all of them, subject only to the editing or annotating of her diarised notebooks on a temporary basis (eg by use of stick-edged labels) so as to exclude irrelevant and/or personal matters.  She expressed herself overwhelmed at the contemplation of having to list, sift and sort her 10 boxes of documents.  In view of the extremely limited time available for the parties to resolve matters relating to discovery and the production of bundles, the Tribunal decided that the interests of justice necessitate dispensing with the formal stage requiring the Applicant to list her documents and to move straight to production and copying of relevant documents.  This is to commence as soon as possible and we fixed on Friday 18 August 2000 as the start date.  The appropriate Order was made at the hearing and has already been sent in written form.”

As for witness statements they had been directed to be exchanged by 1 August 2000 as early as February 2000.  The Tribunal said:

“The parties agreed and were directed in respect of the preparation and exchange of witness statements at the hearing on 1-3 February 2000.  1 August was fixed as the latest date for exchange.  Unfortunately the Applicant has not prepared her own statement or obtained final statements from either of her two witnesses.  The reasons the Applicant gives for non-compliance are medical and she does so in highly charged, emotive terms – for example threatening that her death is likely to result if she is required to produce a statement within the next 3 weeks (ie at any time before the full hearing commences).”

So far as any medical condition was relied upon by Ms Sivanandan at the time the Tribunal said:

“Once again, although the medical evidence referred to above is some support for her complaints of stress, we are handicapped by having no current medical certificate, no letter more recent than 13 July and nothing which supports or explains incapacity from February (when the direction was agreed) up to date.  Even if we accept that this litigation causes the Applicant’s stress, there is nothing which could cause us to believe that the Applicant is likely to recover while this litigation hangs over her.”

40	It is, I hope, clear to Ms Sivanandan that for her to rely on a medical condition, supported only by a statement from the party herself that a doctor was to write a letter to the Tribunal, falls way short of providing a good medical ground for there and then extending time for discovery or for preparation and exchange of witness statements.  Moreover, whilst the Tribunal can be expected to have in mind that litigation can indeed be stressful, especially, perhaps, to litigants in person, if one gets to a situation in which one party asserts that the litigation cannot proceed because of stress, that, if accepted, would lead to a position in which the litigation would never ever be finalised, which is not only contrary to public policy but, of course, unjust to the other parties involved of whom, in this case, there are many.  It has to be borne in mind, after all, that it is Ms Sivanandan that has initiated the proceedings.  We see no arguable error of law in this second head and it is not to go further to a full hearing.  That leaves a third heading and a fourth but, coming to the third one, that is said to be as follows:

“(c)  The refusal to allow an amendment to the originating application or IT1 despite the fact that a claim of sex discrimination had been part of the IT1 from the outset.”

41	Given that the IT1 had been lodged in March 1997 a clear case would need to be made out to justify amendment in August 2000.  The Tribunal considered the request in detail.  Firstly, they recorded a concession which had been made in September 1998 by which, as it seemed, Ms Sivanandan had limited the sex discrimination complaint to a matter not involving the matter in the new proposed amendment.  Secondly, they considered the Selkent case which is a leading case on amendment in this area and it is not said that they misdirected themselves.  Thirdly, the new allegations involved a claim as to a sexual relationship with a Councillor as to which the Tribunal said:

“The ‘relationship with a Councillor’ application would not be permitted.  Our reasons are that this is a substantial amendment, adding a new sex discrimination claim not related to that already pleaded, at a very late date.”

42	Fourthly, they took the view that the case sought to be raised by the amendment could, even at the outset, be seen to be weak.  Fifthly, they held that there would be real prejudice to the Respondent.  As to that they said this:

“Finally under this head, we accept that the Respondent has prepared its case for trial and has not questioned witnesses about this matter and is not intending to call Councillor Stafford or Councillor B.  It will be prejudicial to cause it now to direct attention from discovery / final preparation and to chase additional witnesses in respect of a weak claim (with no real likelihood of recovering the costs involved).  There is significant (not minor or trivial) prejudice here.”

43	On the other side they held that there was no real prejudice in shutting out Ms Sivanandan from running what they took to be a weak claim.  Again, we must emphasise that we deal only with errors of law and we find no arguable error of law in that part of the case and it is not to go further.

44	Going back to the Notice of Appeal, the fourth ground is:

“(d)  The refusal to allow evidence of any of my past complaints or legal action under the 1976 Race Relations Act / 1975 Sex Discrimination Act against other bodies as evidence in the full merits hearing of this case.”

To remind ourselves, the order on this part was a total victory for Ms Sivanandan.  The order on this part of the case had been:

“The applications of the Respondents to introduce into the full hearing documents (essentially pleadings) relating to other discrimination claims brought by the Applicant and/or to cross-examine the Applicant about such claims are refused.”

45	So the only matter in front of the Tribunal had led to a victory, as it seemed, on her part, but one is bound to say there is an element of confusion or doubt because in the reasons themselves, at paragraph 7(iii) one finds, inter alia, this passage:

“We therefore direct that:
(a)	no documents in respect of other litigation should be included in the bundles for the hearing;
(b)	there should be no evidence in chief and no cross-examination about this other litigation (since it would inevitably call for support from the documents and lead to the additional copying and costs and time-wasting that we seek to avoid.)”

Here, it seems to us, Ms Sivanandan has a point.  She says, in paragraph 5 of her Notice of Appeal:

“It was vital that I be allowed to speak on this matter, as one of the cases I had taken in the past and complaints made in relation to the earlier case constituted ‘protected acts’ and were relevant to my claim of discrimination.”

46	In context the Employment Tribunal’s reasons were not, we think, intending to deal with the evidence on which Ms Sivanandan had wished to rely as being protected acts but the broad description that they gave could be said to have excluded it.  That they did not intend that, I think, is relatively clear from what they do say in paragraph 7(i):

“The Respondents had previously indicated that they wished to rely upon documents (presumably pleadings) from other cases alleging unlawful discrimination brought by the Applicant.  Mr Barry understood this, in the context of an application for discovery, to go to credit only and declined to Order discovery.”

A little later, dealing with the argument that they received, they said at paragraph 7(ii):

“The Respondents’ case was that the documents show ‘strikingly similar’ allegations of collusive race discrimination, demonstrating the Applicant is ‘a serial litigator’.
Some seven cases, not all in Tribunals, were mentioned.  We were not to be asked to determine the veracity or otherwise of the allegations in those other cases, but rather to infer from the similarities involved that they could not all be genuine and that the Applicant was far too ready to see conspiracy / collusion resulting in discrimination.  That was it.  No documents were put before us.”

47	So one can see that what the Tribunal were seeking to avoid was a wide-ranging attack of the character that Ms Sivanandan was “a serial litigator” and that the other proceedings demonstrated that to be the case.  It would, it seems to us, again be a matter of a sledge hammer to crack a nut to order a full hearing on this very limited topic.  So again, what we shall do is adjourn the preliminary hearing of heading (d) in the Notice of Appeal of 2 October 2000.

48	We would hope that the parties should be able to devise a form of words which allows Ms Sivanandan to prove protected acts consisting of proceedings initiated by her in other cases, but without opening the door to the wide-ranging attack on her that the Tribunal was obviously at pains to avoid.  It is perhaps easier to do than we had at first feared because it appeared in argument from Ms Sivanandan that there is only one proceeding which she would wish to refer to as being a protected act and that she can identify it quite readily and, indeed, she says that it is already well known to the Respondents.  

49	What we suggest is to give her extra margin of time and to require that within 14 days from the receipt by her of the transcript of this judgment she should specify in writing to the Respondents any protected act which she intends to rely upon which includes reference to other litigation, identifying the other litigation to which she intends to refer.  I would hope that once that is done the parties will be able to frame a form of words restricting disclosure of other proceedings to that particular identified litigation and excluding examination in chief or cross examination on proceedings outside that specified area.  If the parties within 35 days after the supply of the transcript of this judgment have failed to agree terms between themselves, then the case can be restored on this adjourned heading (d) to the Employment Appeal Tribunal, adjourned to come on before the same three that have dealt with it today.  That adjournment apart, and save for the issue of amendment which we will come to in a moment, we have been able to spot no arguable error of law emerging out of the Notice of Appeal of 2 October 2000.  Thus, leaving aside that issue under heading (d), we therefore dismiss that appeal, even at this preliminary stage.

50	As for the amendment proposed to the Notice of Appeal of 2 October 2000, that has been indicated by a letter of 11 January 2001.  We do not need to read all of it but what Ms Sivanandan asks for is that she be allowed to add, as a further ground, breach of Article 6 and of Article 14, the Article on discrimination in the Human Rights Act 1998 and in the European Convention on Human Rights.  And a little later she says:

“I therefore seek leave to make an amendment to that effect, as it is clear from my ‘Grounds of Appeal’ that I believed that I was discriminated against and an amendment at this stage causes no prejudice.”

51	We can only deal with errors of law in the reasoning or the decisions of the Employment Tribunal.  There seems to have been no argument below as to Article 6 in conjunction with Article 14 and there is no decision or reasoning below dealing with Article 6 or Article 14.  I would think that it might very well be the case that, if a clear breach of Article 6-cum-Article 14 was plainly shown, that would not bar the Employment Appeal Tribunal allowing the complaint to be raised, notwithstanding that it had not been argued below.  But for an appellant to base a claim to amendment on a mere belief that she was discriminated against is, as it seems to us, no such clear case and still less is that so where it is not plain from the application to amend who it is said discriminated against her or whether it was on sexual or racial or on whatever other grounds might be possible.

52	So, dealing simply with the application to amend, as made on 11 January 2001, being an amendment to the Notice of Appeal of 2 October 2000, we refuse leave to amend and accordingly, with the exceptions that we have specifically detailed even at this preliminary stage, we dismiss the appeals so far heard.