Appeal No.	 EAT/107/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 February 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MS B SWITZER

(1)	MR J MONTGOMERY 
(2)	LONDON BOROUGH OF LEWISHAM	APPELLANTS

MRS E IZUNDU	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR E JANKOWSKI
(Representative)
Head of Legal Services
London Borough of Lewisham
Lewisham Town Hall
London
SE6 4RU	
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against an interlocutory decision of an Industrial Tribunal given in the middle of the hearing of a complaint of discrimination brought by Mrs Izundu against a number of named respondents and her former employers, the London Borough of Lewisham.

	After the applicant had given evidence the respondents’ Counsel, Mr Clayton, made a number of submissions to the Industrial Tribunal to the effect that parts of the allegations should be struck out or not pursued any further, and parts should be removed from the case as they had not been pleaded, and matters of that kind. He made that submission over a lengthy period of time and that provoked the Industrial Tribunal into producing a decision which is dated 13th January 1998 and was sent to the parties on that date and which runs to some 76 paragraphs. 

	It is obviously a case of great difficulty for the respondents and for the Industrial Tribunal, because as Mr Jankowski, on behalf of the respondents has said, the allegations made by the complainant in this case are something in the nature of a scatter-gun approach to litigation. 

	Very sensibly, the Industrial Tribunal have taken the opportunity presented to them by the submissions to produce some order into proceedings which were in danger of becoming disorderly, despite the fact that the tribunal had before it started to receive evidence done its best to identify precisely what points were being made and pursued.

	The Industrial Tribunal are to be congratulated for the way in which they are seeking to deal with this complex matter and to isolate and identify the matters which they consider fall for consideration. They are also to be congratulated for keeping their mind firmly on what the principal issue is, which is that specified in paragraph 76 of their decision which I do not need to read. 

	On Counsel’s advice, Lewisham Borough Council and Mr Montgomery, one of the named respondents, have appealed to us. They have said that the tribunal should have gone further than it did, and that there are other matters listed in paragraph 3 of the Notice of Appeal which should have been struck out by the tribunal. 

	In principle, the Employment Appeal Tribunal will be reluctant to review any decision of an Industrial Tribunal of this nature which is essentially case management during the currency of the case. It seems to us in principle undesirable that the Employment Appeal Tribunal should be invited to review a decision such as this, when the case is still proceeding, and when the outcome of the litigation is unknown. It seems to us it is the more so because it is not easy, perhaps not even possible for us, on the basis of the material presented to us on this appeal, to determine whether or not there is any merit in the complaints made on behalf of the appellants.

	The Industrial Tribunal are the people who are seized of the facts, they know what the evidence was in this case, and we do not. They are therefore inherently in the best position to judge how the case should now proceed. If of course it were to transpire in due course, for one reason or another, that the decision arrived at by the Industrial Tribunal at the end of the day was wrong in law because of some mismanagement by the tribunal during the course of the case, then at that stage, of course, the Employment Appeal Tribunal would be entitled to intervene as they can in respect of any decision of an Industrial Tribunal which has gone wrong in law. But it seems to us to be, broadly speaking, undesirable and indeed impractical for the Employment Appeal Tribunal to be asked to intervene in a case such as this which is not yet complete.

	I do not rule out the possibility that there may be some instances where an interlocutory decision of this sort is so manifestly unjust that we ought to interfere, but I do not regard this as being falling within that category. 

	It seems to us that the tribunal is best placed to be able to judge who should be left in and which allegations are worthwhile further consideration from the respondent’s witnesses.

	It turn, therefore, now to the particular ground (i) which is against a finding that there was a case to answer against the fourth appellant, Joseph Montgomery, so that he remains a party to the proceedings. The tribunal deal with this at paragraph 68 of their long and succinct decision. The essence of the allegation is that Mr Montgomery surprisingly jumped the gun by declaring the applicant to be a corporate re-deployee before the departmental reorganisation had been completed. 

	The question at issue may be whether that forms a basis from which the Industrial Tribunal may infer that the unusual treatment, if it be such, of the applicant in this re-deployment exercise was based on her race; or alternatively, on the fact that she had made complaints against Lewisham in the past.

	We say nothing about the merits of that contention. Mr Jankowski says that allegation is not pleaded and as it is not pleaded and as it was not one of the matters listed at the beginning of the hearing, it would be really be unfair for Mr Montgomery, who is a senior employee, to be required to give evidence. 

	It seems to us that the answer to that submission is as follows. If Mr Jankowski and Counsel take the view that it would not be open to the Industrial Tribunal to make any adverse findings against Mr Montgomery having regard to the nature of the complaints made as particularised, then it would be open to them to make that submission to the Industrial Tribunal in their closing submissions and not to call Mr Montgomery to give evidence. If, on the other hand, they take the view that because of the way the general nature of the complaint is being made there is a risk that the tribunal might make an adverse finding against Mr Montgomery, then it will be open to them to call him to give evidence. However senior or busy he may be, nobody is above the law and he is not too grand to give evidence to an Industrial Tribunal. 

	It seems to us on the basis of the material provided to us, that we have no grounds whatever for saying that the judgment of the Industrial Tribunal on that matter is one which should be described as being manifestly unjust, unfair or improper. Accordingly, in relation to that aspect, we would dismiss this appeal.

	In relation to the other two items in the Notice of Appeal. The Industrial Tribunal Chairman has indicated that the tribunal would be prepared to use the first day of the resumed hearing as an opportunity to reconsider the issues in relation to those two matters. That being so, it becomes particularly inappropriate for us to deal with this appeal at this time and we do not propose to make any comment one way or the other about the merits of what the tribunal Chairman has done. We would wish to offer the tribunal Chairman our support for his attempt to deal with this case in a fair an orderly manner that does justice between the parties. We recognise that he has an immense task ahead of him, and it seems to us, most undesirable that this appeal should have been maintained against his attempt to manage the case in an orderly, sensible and fair way. Accordingly, we dismiss this appeal and wish to make it perfectly plain that we do not consider that it should ever have been brought before us at this time.