Appeal No.	EAT/1271/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2000

Before
HIS HONOUR JUDGE H WILSON
SIR GAVIN LAIRD CBE
MRS R A VICKERS

MS C McDONALD	APPELLANT

C & A	RESPONDENTS

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	MR AYOADE ELESINNLA
(of Counsel)
Free Representation Unit
4th Floor
Peer House
8-14 Verulam Street
London
WC1X 8LZ	
For the Respondents	MR DAVID SCOREY
(of Counsel)
Messrs Glovers
Solicitors
115 Park Street
London
W1Y 4DY	

	JUDGE WILSON:	This hearing was listed for the final full argument concerning the appellant’s appeal against the decision of the Employment Tribunal that she had not been unfairly dismissed nor discriminated against by reason of sex.

1.	At the outset Mr Elesinnla, who appears on behalf of the appellant, sought leave to vacate the hearing of the appeal and to use the time today as a directions hearing in light of matters which had come to light since the preliminary hearing at which leave was given for the appeal to proceed on three grounds which were articulated on that occasion in May 2000. 

2.	After the preliminary hearing the papers did not come back before any division of the Employment Appeal Tribunal until the files were prepared for today’s hearing. It is plain from the files which have been prepared that there have been developments since the preliminary hearing which would have been relevant to be considered at the preliminary hearing had they then been known. Of course only the appellant was present at the preliminary hearing and she was in fact represented under the Employment Law Appeal Advice Scheme by Mr Dugdale. 

3.	It now emerges that the tribunal Chairman invited a submission of no case and Mr Scorey who appeared on behalf of the respondent of course responded to that invitation and responded successfully. That that is what happened is in no way disclosed by anything in the extended reasons or the papers which were before the Appeal Tribunal hearing the preliminary application. 

4.	Mr Scorey today complains that it is improper to seek a further re-amendment, that it is unreasonable to treat today’s hearing as a directions hearing only and that the whole thing is in breach of the rules. 

5.	It seems to us that the fundamental principle that justice must not only be done but seen to be done transcends in importance any rules of procedure. The fact is that this appellant who appeared for herself before the Employment Tribunal was faced with a technical matter which she did not comprehend and as to which there is no indication that there was any attempt to explain to her. That is to say, she was faced with the technical consideration of a submission of no case to answer. Not only that, but what would have been evidence from the respondents was got in in the shape of the contemporaneous notes by putting them to the appellant when she was giving her evidence. 

6.	As Mr Elesinnla on behalf of the appellant says in his skeleton argument, the meeting of which those notes were a record, was the meeting at which the appellant had wanted to review what had taken place between Mrs Northbridge and the appellant, and about which, as the note shows, the appellant had said that she wanted to ask the author of the notes questions. Mr Elesinnla in his final submission said that the appellant had left the tribunal hearing not really knowing what had happened and certainly not feeling that she had had a fair hearing. 

7.	That is the fundamental requirement which has to be satisfied and it is that which leads us to say, whatever may be the rights or wrongs of rule breaking and so on, in this case it is important for the matter to be heard on full argument on all the matters at issue as they are now known. Accordingly we treat today’s hearing as a directions hearing.

8.	We give leave to Mr Elesinnla to submit a re-amended Notice of Appeal which will follow the form set out in his skeleton argument but which for the removal of doubt he should draft appropriately and fully within the next 14 days. That is to say the re-amended Notice of Appeal will be limited to the matters with which we have dealt today. It must be submitted to the tribunal and the other side by a fortnight today, that is to say by 4 p.m. on Wednesday, 6th December 2000. Thereafter the respondents must enter their response to the re-amended Notice of Appeal within 14 days, that is to say by 4 p.m. on Wednesday, 20th December 2000. We shall further direct that the matter be given as early a hearing as possible after 20th December 2000. The case to be listed as Category C with a duration of 3 hours.

9.	We add a further direction that affidavit evidence from both sides concerning the issue of what actually happened over the submission of no case is to be filed within the time limits given already with regard to re-amended Notice of Appeal and re-amended response.