Appeal No.UKEAT/0316/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 August 2004

Before
HIS HONOUR JUDGE D PUGSLEY
MR P M SMITH
MRS R A VICKERS

MR M SENYONJO	APPELLANT

(1) TRIDENT SAFEGUARDS LTD 
(2) WILSON JAMES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr M Jones
Solicitor
Messrs Turbervilles
Representative
Solicitors
122 High Street
Uxbridge
Middlesex UB8 1JT	
For the Respondents	Mr McGlashan 
Legal Representative
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB

SUMMARY

Issue of inferring discrimination and rehearing of past history and issue of allowing Applicant sufficient time to read documentation.

HIS HONOUR JUDGE D PUGSLEY

1.	This is a case in which we would like to thank the representatives for the cogent way they have put their submissions to us.  We want to make it quite clear that we are not, in any shape or form, making any comment on the merits of the case; that would be wrong for us to do so, we are not the judges of fact.  This case only concerns the First Respondents.  By consent the Second Respondent was dismissed from the appeal at the preliminary hearing of the case.

2.	We have come to the view that we should send this case back to a new Tribunal to be heard afresh.  We have reached that decision with a considerable amount of heart searching because we are well aware, in the words of Lord Hoffmann in Piglowska v Piglowska [1999] 3 All ER 543 that it does little to help anyone to allow appeals and to kill with kindness, in some Utopian search for perfect justice, and that there has to be some proportion, in any society, of the issues and of the cost to the community and to the individuals.  The real issue is whether the Appellant should have been allowed to admit evidence at trial.

3.	However, our concern is this: this Appellant was unrepresented.  He had got his documents off on 27 December.  By the 29th they should have been received; he kept the First Respondents in touch and there seems to be an amiable relationship between him and Mr McGlashan, who appears for the First Respondent.

4.	Unfortunately, and it is no fault, Mr McGlashan did not receive those documents until after the New Year break.  There was an e-mail from the Appellant saying when he was sending them off,  we have got the certificate, there is absolutely no doubt about the fact that they were posted.  
5.	When they were posted, the Appellant included within his documents, a history of matters which suggested there was a pattern of discrimination.  We have not formed any view one way or another about what that history discloses.  We are told, and of course we accept the integrity of Mr McGlashan, that the Second Respondents raised an issue about that documentation with the Tribunal, but whether by letter or conversation, they were told the case would stay in the list.  

6.	The Applicant received some of the information late.  That was shortly before the hearing, he did not receive the hard copy until later and he wanted time at the hearing itself.  That is a subsidiary ground of appeal, but basically the crux of this appeal set out at paragraph 5 of the judgment.  

“In accordance with the Tribunal's directions for the preparation documents and statements for hearing, the Applicant served on the Respondents a document, purporting to be his witness statement dated, 27 December 2003. In it he made a number of allegations against the Respondents. As against the First Respondent, these included alleged incidents going back to the early years of his employment, and well beyond three months before the presentation of the Originating Application. As against the Second Respondent, he made allegations of victimisation during his employment with them. He is currently in their employment. These additional-matters took both Respondents by surprise. In the First Respondent's case, for them to address the new matters effectively they required evidence from a number of named individuals. They were, accordingly, not in a position to deal with the various allegations at the commencement of the hearing and requested an adjournment  should the Tribunal allow what was, in effect, an amendment of the Originating Application.  As regards the Second  Respondent, the various allegations were in the nature of new claims alleging victimisation. No early application had been made by the Applicant to amend his Originating Applicant to add these new claims. He wished to refer to them in evidence as his claims against the Second Respondent. This, like the position of the First Respondent, presented difficulty to the Second Respondent in terms of getting rebuttal evidence. The Tribunal having considered the matter decided, unanimously, that the Applicant should not be allowed to refer to the new matters in his witness statement against the Respondents. Both Respondents would be severely prejudiced if he was allowed to do so and an adjournment would have to be granted. He had the benefit of legal advice though not representation since 15 May 2003 when he became aware of the appointment of Mr Edwards. Serious injustice and hardship would be suffered by the Respondents in having to obtain cogent evidence to rebut the recent claims. In the First Respondent case; they would. have had to go back several years to search for evidence when memories would have faded.  We considered Regulation 10, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and the duty to deal with cases fairly and expeditiously.  This was such a case.  The Applicant was, accordingly, reminded that he was to adhere to the matters as pleaded in his Originating Application and that he would not be allowed to rely on the new allegations.”

We consider there was an error of law in that Rule 10 requires the Tribunal to deal with a case expeditiously and fairly, and we do not think that this Tribunal really thought through what they were doing, and to realise that this was a case where there was a tension between what expedition required and what fairness required.  

7.	It has always been the hope of law reformers that they could do something to reduce the expenses of litigation.  Every Commission, from the Evershed Commission in the 1950s, the Wynn Commission in the 1970s, the Pearson Commission in the 1980s and through to the Woolf reforms of the 1990s, have sought to do it.  If you have a Court based system of formal pleadings, interlocutory hearings, summons for directions, you define and refine the issues, so that ultimately when you get to Court, one hopes the issues are clear; there is not a trial by ambush.

8.	The whole point of the Tribunal system is to have a simple procedure.  This simplified procedure means that the Tribunal are on occasions confronted with situations when someone comes along and wants to name all sorts of people as doing this and that, and the other side have had no opportunity of dealing with it.  How do you deal with it?  Quite simply we do not think that this Tribunal reacted in a way which was consistent with the true interpretation of the Rules in this situation. 

9.	Quite simply, if you look at the paragraph to which we have adverted, they should have asked themselves, as against the First Respondent, “Is this admissible?” and the answer would be yes.  Why is it admissible?  Because that long stream of authority, set out in the Appellant’s Skeleton Argument, which says that past matters are relevant to determine an issue of discrimination.

10.	This was not, as far as the First Respondents are concerned, a new cause of action.  It was not so much an amendment to include a new head of damage, a new cause of action, but evidence supplemental to his Originating Application.  He had complied with the time limits, the Respondents had not; that in itself was not fatal, but if you look at the paragraph to which we referred there is reference to prejudice to the Respondents.  There is no reference to the prejudice to the Applicant which was real.  We are sure that the Tribunal were concerned, and rightly concerned, at expedition, but in the end justice has to be preferred to expedition, and we feel that the Applicant would have walked away from the Tribunal feeling he had not had a fair opportunity to put his case.

11.	We go on to say this, and this is a view of us all, we do not want this issue in any shape or form to be misinterpreted.  We have had the most able argument from the representative from the Respondents.  He has pointed out that what in fact was alleged is a single discrete issue.  We do not want to prejudice how any Tribunal should decide that, but on the findings of fact, this Tribunal made, this was a particular contract arising as an emergency which needed urgent action, and that there was it is said a genuine and bona fide belief that they had to parachute a particular person in to deal with that problem and save the contract.  

12.	Had there been, Mr McClashan asks us, a whole area of discriminatory practice revealed, it would still, he says to us, be open for the Tribunal to have come to the decision it did, and that may well be right.  The answer is that the Appellant did not have the opportunity of putting that evidence before the Tribunal, but we do not in any way wish to second-guess what any new Tribunal is going to find.  

13.	We do not want to encourage the Appellant in false hopes.  We do make the point, if we may, that there are some times ways of resolving disputes other than the guerrilla warfare of the trench warfare of litigation, which is as productive of as many losses as, sadly, trench warfare was between 1914 and 1918.  If anyone can try and resolve it we beg that this is reconsidered.  We allow the appeal.  There is no appeal against the dismissal of the unfair dismissal.  We allow the appeal on the basis that the Tribunal should, in the exercise of its discretion, we believe on the authorities before us, allow those matters to be admitted in evidence as being relevant evidentially.  We do not think that the speed with which the Appellant has to absorb the witness statements helped but that was a subsidiary matter.  The Applicant should have been allowed to adduce that evidence, albeit there might have been an issue raised as to costs if an adjournment was necessary.  The appeal is allowed and the case sent back to be reheard by another Tribunal on its merits.