Appeal No.	 EAT/759/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MRS M T PROSSER

ASI GLASS PROCESSING	APPELLANTS

MR G DAVIES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR M J R STEVENSON
(Director)	

	JUDGE PETER CLARK:     This case has had something of a chequered history.  It began in May 1995 when Mr Gary Davies presented an Originating Application complaining of unfair dismissal against his former employers, the Appellants, ASI Glass Processing Ltd.  In essence he claimed that he had been summarily dismissed on 14 April 1995 by reason of redundancy when no redundancy situation existed, or if it did, the dismissal was procedurally unfair.  The claim was resisted.

	The matter first came on for hearing before an Industrial Tribunal sitting at Birmingham on 22 March 1996.  The panel consisted of a Chairman, Mr P.D. Williams and two lay members, Mr P.H. Barley and Mrs S. Ray.

	What happened on that occasion is set out in a Note prepared by the Chairman and recorded in a judgment of a division of this appeal tribunal presided over by Morison J, the President, which sat on 30 October 1996.

	It seems from the Chairman’s Note that at the outset of the hearing Mr Stevenson, a director of the Appellant, demanded to know of Mrs Ray, one of the panel members, details of her knowledge of business, effectively demanding her curriculum vitae.  The Chairman ruled that he was not entitled to such information and again, according to the note , asked whether Mr Stevenson had any objection to Mrs Ray sitting.  He said that he did not.

	Despite that ruling Mr Stevenson persisted until in the event the Tribunal struck out the Notice of Appearance and effectively debarred the Appellant from defending the claim.

	On 18 July 1996 the same Industrial Tribunal reconvened and heard the claim.  An application by the Appellant for a review of the initial decision debarring them from defending having been refused, the Tribunal went on to find the complaint well-founded and awarded Mr Davies compensation totalling £7,247.  Extended Reasons for that decision were promulgated on 7 August 1996, together with the Tribunal’s review decision.

	Against both the debarring decision and the refusal to review that decision the Appellant appealed.  Those conjoined appeals came before the Appeal Tribunal on 30 October 1996 and were dismissed for the reasons given by the President on that occasion.

	There the matter rested until 14 May 1997, when the Appellant applied to the Tribunal for a review on the grounds that:

“Mrs S Ray has now admitted that she knew Mr Stevenson who was representing ASI Glass at one of the hearings and since this was wrongly constituted and in the interests of justice we would like a review and a new hearing.”

	That application was dismissed by the Chairman, Mr Williams, in a decision promulgated with reasons on 2 June 1997.

	By a Notice of Appeal dated 3 June 1997 the Appellant has appealed against that review decision.  In support of the appeal we have been shown a company search which reveals that Sumana Ray was appointed a Director of Thama Holdings Ltd on 10 January 1995, and became Company Secretary on 12 November 1996.  Mr Stevenson tells us that he was involved in an acrimonious business transaction with Mrs Ray on behalf of Thama Holdings concerning a company, DEC Agricultural, of which Mr Stevenson was a Director.  Accordingly, he contends that Mrs Ray ought to have declared an interest before sitting on the Industrial Tribunal which decided the present case.  The difficulty he faces today is that he knew Mrs Ray at the time of the first Tribunal hearing.  He recognised her.  And yet, according to the Chairman’s Note, he raised no objection to her.  That is in dispute.

	However, the Appellants then applied for a review of the debarring order.  They did not mention the potential conflict of interest if Mrs Ray continued to sit on the panel.  Mr Stevenson says that was because he could not prove that she was a Director of Thama.  That in our judgment did not prevent him raising the point.

	Further, he appealed against that review decision to this Appeal Tribunal.  Again the point was not raised.  That appeal was dismissed.

	In our judgment it is now far too late to raise the point.  There must be finality in litigation so far as possible.  No proper ground in our view has been put forward on behalf of the Appellant for seeking to raise the point now.

	In addition to the point taken in the Notice of Appeal Mr Stevenson has raised further matters.  He contends that the Appellant was not given notice under the Tribunal rules of procedure of the possibility of the Notice of Appearance being struck out.  On the Chairman’s account he was given warning at the first hearing.  If that is not right the matter ought to have been raised at the first appeal.  It was not.  Again it is too late.  

	Next, he complains that a briefcase went missing at the Industrial Tribunal.  That is not a matter for this Appeal Tribunal.  

	Finally, he points out that at the second Tribunal hearing on 18 July 1996 the record of proceedings was not completed by the Industrial Tribunal clerk.  Again, that is not a material matter for our consideration.

	In our judgment, having considered the way the matter is put by Mr Stevenson, there are no arguable grounds of appeal raised in this Notice of Appeal and in the submissions presented by Mr Stevenson and accordingly, the appeal must be dismissed.