Appeal No.	 EAT/251/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2000

Before
HIS HONOUR JUDGE A WILKIE QC
MR P DAWSON OBE
MRS J M MATTHIAS

MRS CECILIA N NKENGFACK	APPELLANT

LONDON BOROUGH OF SOUTHWARK	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR W D PANTON
(Of Counsel)
Instructed by
Messrs Akainyah & Co
Solicitors
308 Seven Sisters Road
Finsbury Park
London N4 2AG	

JUDGE WILKIE QC

1.	This is a Preliminary Hearing of an Appeal brought by Mrs Nkengfack against a decision of an Employment Tribunal at London (South) held on 22 and 23 July and 26 October 1999 in which, by a decision sent to the parties on 7 December 1999, the Tribunal decided that her complaints of unfair dismissal, race discrimination and sex discrimination were dismissed.  Mr Panton of Counsel who has appeared before us this morning takes 2 points.  The first is contained in the grounds of appeal and that is that in this particular case new evidence has appeared which could not be obtained with due diligence at the hearing which probably would have influenced the result and which is apparently credible.  

2.	Very briefly, the case concerned the dismissal of the Applicant on grounds of gross misconduct.  It had been alleged that on 4 December, when she was signed off sick from working at the school at which she employed, she was observed by the head teacher and her colleague working in her hairdressing salon at a time when she should have been at work.

3.	There was a straight conflict of fact at the heart of this case namely, the Applicant said that she was not working in the salon on that afternoon but rather was at home recovering with a view to returning to work the following Monday.  The colleague whom it was said witnessed her working at the salon along with the head teacher did not appear to give evidence.  The head teacher did give evidence and accordingly to a large extent this case hung on the view, which the Tribunal formed as to the credibility of the head teacher.

4.	One of the matters upon which the head teacher gave evidence and which was recorded as a finding of fact by the Tribunal is that there had in the past been suspicions of the Applicant malingering in similar circumstances which had been drawn to the head teacher’s attention by the then the deputy head teacher, Mrs McKew.  The Applicant was only informed of this particular aspect of the evidence in the head teacher’s witness statement, which, we are told by Mr Panton, was only made available to her on the morning of the Tribunal hearing.

5.	Furthermore, the Applicant not being privy to the alleged conversation between the head teacher and the deputy head would not have known whether that part of the witness statement was true or otherwise.  The evidence which has now come to light is in the form of a transcript which has been presented to us derived from tapes of 2 telephone conversations between the Applicant and the ex deputy head Mrs McKew

6.	We have been referred to several passages in that transcript of which the most directly pertinent is a straightforward denial by Mrs McKew that she had ever had such a conversation of which the head teacher gave evidence before the Tribunal.  There are a number of other passages which called into question the attitude of the head teacher, her willingness to be manipulative and, in terms, to “con” people.  What Mr Panton says is that not only could this evidence not have been obtained with due diligence but it would probably have influenced the result and is apparently credible.

7.	In our judgment it is plainly arguable that this new evidence does satisfy each of these 3 tests.  We therefore agree that this case should go forward to a full hearing on that basis.  In addition, Mr Panton has asked leave to amend the Notice of Appeal, to add a further specific ground of appeal which is entirely different in nature.

8.	It is to this effect: the Employment Tribunal set out at paragraph 3 sub-paragraph 1 a series of issues in the case.  The last of those issues was said to be whether that the panels which had taken the disciplinary decision and, thereafter, had considered it on appeal had given inadequate consideration to an alternative sanction to dismissal.

9.	We have looked through the decision and we agree with Mr Panton that, whilst it is clear that each of the other issues were addressed by the Tribunal, this was not.  On the face of it, therefore, it seems there may be have a failure by the Tribunal to address an issue which it had directed itself was relevant to this case.  We accept that that would give to an arguable point of appeal and we therefore give leave to Mr Panton to amend the existing grounds of appeal in order to add that new ground.  Category C.  Half a day.