Appeal No.	 EAT/317/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS J M MATTHIAS
MR S M SPRINGER MBE

MRS PATSY EDWARDS	APPELLANT

(1) LONDON BOROUGH OF WALTHAM FOREST (2) MR PETER KILGARIFF AND (3) MR RICHARD SIMMONDS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PETER ABRAHAMS
Representative	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us, as a Preliminary Hearing, the Appeal of Mrs Patsy Edwards in the matter Edwards against 3 Respondents, London Borough of Waltham Forest, Peter Kilgariff and Richard Simmonds.  Mrs Edwards has appeared today by Mr Peter Abrahams, her representative who also appeared for her below.

2.	On 8 July 1998 there was an IT1 lodged by Mrs Edwards for racial discrimination.  The Box 9 in that form gave the date of the event complained as 6 April 1998 and the Respondents in the first place were Mr Simmonds and Mr Kilgariff who were managers of Mrs Edwards at the London Borough.  But a little later the London Borough was added as a Respondent and on 28 September 1998 there was an amended IT3 on behalf of all 3 Respondents together.  Then there was a hearing at London (North) on 9, 10, 11 and 12 August 1999 and then the matter was considered by the 3 person Tribunal in Chambers on 15 November 1999 and 7 January 2000.

3.	The decision of Miss D A Pearl, Chairman, and the 2 Members, Mrs J McPake, and Mr G Poyner at London (North) was sent to the parties on 20 January 2000.  On 2 March 2000 a Notice of Appeal was received from Mrs Edwards, the very last day of the 6 weeks period allowed for Notices of Appeal.

4 	On 13 April a rather curious document (as it stands in our papers) was called into existence. It is an affidavit of Mr Abrahams or part of one (it begins at a para 8 and ends half way through a sentence) explaining what he said had happened at the Tribunal hearing and making a number of allegations about misconduct at the Tribunal hearing.  On 24 May there were very full comments by the Chairman, together with a contemporary note of his, responding to the matters raised by Mr Abrahams. 
5.	On 10 October 2000 there was dated a comprehensive Skeleton Argument prepared by Mr Abrahams on Mrs Edwards’ behalf.  One of the complaints about the past from Mrs Edwards and her representative is that because the decision of the Tribunal was not sent, they say, to the right person at the right time they were denied a full 42 days in which to consider how best to frame a Notice of Appeal.  And, presumably, the argument would run, that the Notice of Appeal was therefore a somewhat hurried document.  But, by contrast, the Skeleton Argument is a comprehensive document and it seems to us fair, in Mrs Edwards’ favour, not to consider the arguments in the Notice of Appeal, which might have been hurried,  but instead to consider the arguments in the Skeleton Argument, which has been prepared comprehensively and at greater leisure.

6.	We will have to deal with a number of the arguments raised in the Skeleton Argument because they are such in our view as not to disclose arguable points of law, ones proper to go to a full hearing.  Our judgment will not make sense to anyone one who is not considering the Skeleton Argument but, rather than reading that out at any length (because, after all, we are only dealing with a preliminary hearing) we will deal with it under a number of headings that we intend to cover the various arguments raised in the Skeleton Argument.  The first heading is this: The Team Leader’s Duties and the Honorarium connected therewith.  

The argument here is at E2 in Mr Abrahams’ Skeleton Argument and it says this:
“Firstly, the Tribunal states in paragraph 7(iv) as follow: “We do not accept the suggestion that the Applicant fulfilled the Team Leader’s duties and consider that the evidence does not support the contention.  When honorarium was paid to the Applicant it was in respect of the Senior Assistant’s post.”
Not only is there no evidence supporting the findings, if we look at the evidence we would find that the Applicant did indeed fulfil the Team Leader’s duties and she was asked to be paid honoraria for doing so by no lesser person than Mr R Simmonds himself, the 3rd Respondent in this case.”

7.	I should have said that the unanimous decision of the Tribunal was that the Applicant’s complaints of racial discrimination failed and that they were dismissed.  That would be perhaps apparent from the fact that it is Mrs Edwards who is appealing.  

8.	So, the argument here is that it was Mrs Edwards’ case that she alone fulfilled the Team Leader’s duties.  But the Tribunal held as a finding of fact that that was not the case.  They found that as a fact that Garry Holman was recruited from outside to cover the absence of the Team Leader.  It was for the Employment Tribunal to consider the evidence and to make findings of fact and that they did.  They do not simply say that Mrs Edwards did not fulfil the Team Leader’s duties.  They identify someone else who did fulfil them.  There is no allegation that there was no evidence whatsoever on which the Tribunal could have held that Garry Holman carried out duties in the absence of the Team Leader, Judith Evans, on sick leave.  As there cannot be 2 people each alone fulfilling the whole of the Team Leader’s duties, the unchallenged finding as to Garry Holman precludes any finding that Mrs Edwards fulfilled the duties on her own.  

9.	This ground is thus without weight.  There is no point of law in it and the Tribunal added: 
“We accept Mr Kilgariff’s evidence that he did not know at any material time of a claim from the Applicant to have done the Team Leader’s job.”

10.	So we do not see any arguable point of law in that area.  The second heading is this: ‘Prompt or Delayed Payment of the Honorarium’.  The Tribunal found some relevant facts as follows.  They said in their (x) on our page 9:

“The documentation in A1 shows that the Applicant wrote to Mr Kilgariff on 4 August 1997 (page 12) complaining about her workload.  Mr Kilgariff replied on 28 August 1997 (page 24).  Plainly, the Applicant was off work with stress at this stage, having gone sick on 13 August.  (She returned either in late October or on 11 November 1997; we have been unable to ascertain which is date is correct).”

And then on the next page, our page 10:
“On 14 October 1997 Mr Simmonds wrote to the Applicant (page 26 of A1).  This was to give some good news concerning the various discussions that had taken place about an honorarium.  The additional tasks that she had been undertaking were specified to be about 75% of the duties of the post.  Mr Simmonds said:
“If this seems reasonable to you all that now needs to be done is to progress your honorarium, equivalent to 75% of the difference between your present salary and the starting point of Scale 6, backdated to the time that the duties started when Margaret’s post was effectively vacant.”
On 11 November 1997 (page 27 of A1).  Mr Simmonds confirmed to the Applicant his recommendation of a 75% honorarium.  It was backdated 8 August 1996.  Subsequently, it was increased by a further 10% to reflect additional responsibilities.”

Then in terms the Tribunal found that Mr Simmonds was a credible witness in every particular and they said:
“We found Mr Kilgariff to be an accurate witness in other respects and we take no different view here.”	

And their conclusion on this part of the case was as follows:
“We conclude that the Respondent acted reasonably promptly in deciding on the honorarium after the Applicant informed Mr Kilgariff of her workload in August 1997.  She then went off sick.  She did not complain about differential treatment in respect of the honorarium in her grievance, in the IT1 or in her written witness statement.  In so far as the Respondent has accepted that two white employees received honoraria without any delay, we accept that the circumstances were different.  We do not regard the delay in taking the decision in relation to the Applicant as being unreasonable, especially as she was away from work.  We found Mr Kilgariff’s explanation to be acceptable.  We conclude that there was no less favourable treatment of the Applicant, when compared to the treatment that was afforded, or would have been offered, to others of different race.  We would, further, add that we consider that it would be wrong to infer from any delay in payment that race was a relevant factor in the manager’s minds.” 

11.	The Skeleton Argument seems to ask us to ignore the facts as found and asserts instead that it was in September 1996, and thus not 4 August 1997, that was the time which could be regarded as when delay started running in the payment of the honorarium.  But there is no challenge to the Employment Tribunal’s date of 4 August 1997 and there is no challenge, either to the finding that shortly afterwards Mrs Edwards went off sick for at least 2 months.  It seems to us to stand to reason that if she was not even doing her own job she was unlikely to be doing the whole or part of someone else’s job in such a way as to attract an honorarium.  It might be argued also that little or no detriment was suffered by the delay, if there was a delay, as to the honorarium because when it was paid it was backdated to 8 August 1996, which is a date even before the Appellant alleges she had made Mr Kilgariff aware of her workload.

13.	The Employment Tribunal found the circumstances surrounding the 2 white women and the relatively speedier payment of their honorarium, on the one hand, and the circumstances of Mrs Edwards on the other, to be different.  Mr Abrahams asserts that to say that and to say no more is to fall foul of  Meek v City of  Birmingham.  But and that case does not say that detailed findings of fact must surround every single conclusion of the Employment Tribunal although it does say that there should be at least be such findings of fact as enable a party to determine whether there is any point of law that he or she could then decide to take further if they wished.  

14.	The only point of law in this immediate area would have been that there had been no evidence whatsoever as to any material difference between the cases of the 2 white women and the case of Mrs Edwards.  A difference which is possibly a material difference is that the 2 white women did not go on sick leave. But whether that was the difference or one of them which the Tribunal had in mind, or whether there were other differences (and, if so, what differences) which the Tribunal had in mind and whether the Tribunal could properly have rejected such differences as they had in mind as immaterial is not at all clear. 

15.	 If there were, indeed, 2 identified individuals, Hannah Stamp and Carol Boardman, who had their circumstances explained to the Tribunal and who were described as comparators, then it is in our view, arguable (and that is all we are concerned about at this stage, what is reasonably arguable) that there was an error of law under the Meek v City of Birmingham principle in the Tribunal saying merely that the circumstances were different.  And so here is the point that we will permit to go to a full hearing.  We will have later to explain in a little more detail how it should be framed.  It may be that when the Chairman’s notes are asked for it will transpire that there was evidence of differences and that they were plainly material.  But it is, as we have mentioned arguably inadequate to deal with comparators (if such they were) quite as baldly as the Tribunal did.  

16.	So much for that heading the third heading is Inference.  On the honorarium delay the Tribunal said, inter alia, as follows:
“Turning to the substantive issue of the fixed term contract, we do not accept any of Mr Abrahams’ submissions to the effect that Mr Kilgariff or Mr Simmonds lacked proper authority to decide that the job should be advertised for one year only.  The evidence of the two officers was in stringent terms, namely that they would not consider putting a decision of this type to a committee.”

Mr Abrahams asserts, quite rightly, that James v Eastleigh Borough Council [1990] IRLR 288 in the House of Lords says, by way of Lord Goff’s speech:
“…it  is doubtful if it is necessary to focus upon the intention or motive of the defendant”

That is the case.  But that it is not necessary to focus on intention is not to say that it is wrong to do so, particularly if looking at intention is additional to other factors, as it plainly was in this case.”

Thus we see no arguable point of law on that part of Mrs Edwards’ case.  

17.	The next heading, number 4 would be Mrs Willmott.  Here, again there are a number of relevant findings of the Tribunal.  They say in their paragraph 7(ii) on our page 7:

“(ii)	In about 1994 Mr Paul Richardson had been the Senior Assistant (Invoices) and he became ill.  The decision taken by Mr Kilgariff as an immediate response to the problem was to allow David Trott and Margaret Willmott to job-share the Senior Assistant post.”

Then in their (iii):
“(iii)	In 1995 Mr Trott resigned from his job-sharing post as Senior Assistant (Invoices) and Ms Willmott asserted her right to be given the full-time post.  At pages 183 – 184 of A1 is a document on part-time workers and job-sharing, initially produced in June 1989 an updated in February 1992.  Paragraph 2.6(e) provides that:
“In the event of a job-sharer leaving a shared post, the remaining sharer may (and Mr Abrahams emphasises the word (may)) be offered the post on a full-time basis.  If the remaining sharer does not wish to take the post full-time, a job-share partner should be sought.”

And then they continue:
“We accept Mr Kilgariff’s evidence that he sought the advice of Personnel as to whether Ms Willmott was correct to claim the post.  He was told that it was standard practice to award the relevant job to the claiming job-sharer.  This was done.  We would only comment that we note that this advice appears to be consistent with what is stated at page 184.”   

18.	Mr Abrahams complains in the Skeleton Argument that Mrs Willmott had no right, properly understood, to assert a claim to the post that she had previously shared.  It was discretionary, says Mr Abrahams, whether the whole job would be or should be offered to her.  But Mr Kilgariff’s explanation is as to standard practice, namely, that it was standard practice to award the relevant job to the claiming job-sharer, was in terms upheld and accepted by the Employment Tribunal.  There was no allegation that the standard practice itself was discriminatory so adopting the standard practice would, again, not be discriminatory.  Thus we see no arguable point of law in this area.

19.	The next heading would be Authority in Mr Kilgariff and Mr Simmonds to change the status of a post.  The claim of Mrs Edwards was, of course, one of racial discrimination.  Whether or not these 2 managers had or had no authority was relevant only to whether they were acting in relation to Mrs Edwards in a manner different to that in which they would have behaved to others of different race or of a different racial grouping.  The Employment Tribunal held that the managers did have the relevant authority.  We have already cited the passage where the Tribunal says:
“The evidence of the two officers was in stringent terms, namely that they would not consider putting a decision of this type to a committee.”

But let it be assumed that that was wrong, as Mr Abrahams asserts. The Tribunal dealt with that position as well.  They said this:
“Mr Simmonds stated: “It was totally inappropriate to refer our decision about the invoice post to any committee.”  When Mr Abrahams put to him that the decision should have been referred to two committees, Highways and Services and then Resource Strategy, Mr Simmonds said: “This would be doubly and totally inappropriate.  The Council employs eleven thousand and has a budget of over £200m.  In that context, if I drafted such a report, it would never go beyond my head of department.  It is totally inappropriate and I have never seen it done.”   He added that there was delegated authority under Standing Orders to Chief Officers who, in turn, delegated to senior officers.  “Such matters as changing from a permanent contract to a temporary contract (not changing the post, but [concerning] who should fill it temporarily) would never be referred to a committee and would be dealt with by the Chief Officer under delegated powers.  In 30 years in local government I have never seen such a recommendation sent to a committee.”

And accordingly the Tribunal said on this point: 
“Even were we to be wrong in this conclusion, and there is a procedural requirement, of which we are unaware, to refer the matter to a committee, we conclude the reason why it was not thus referred had nothing to do with race.  This is because we accept the evidence that no such cases had been referred to a committee and that the officers believed that it was inappropriate to do so.  The Applicant would also fail to establish less favourable treatment than others would have received.”

So, the whole question of authority was not shown in any way to have any connection with race or racial discrimination and we see no arguable error of law under that heading. 

20.	The next heading is (6) Changing the senior assistant job from permanent to fixed term when Mrs Edwards applied for it;  Was it discrimatory?  It plainly could have been and it needed some explaining.  But it was explained and the explanation was accepted.  The explanation was that Mr Kilgariff decided that the post should not be permanent but for a fixed short term.

21.	The factors leading to that decision were explained to the Tribunal - see the Tribunal’s paragraph 7(viii) Mr Simmonds of the London Borough also gave evidence to the same effect which, again, was accepted by the Tribunal, see paragraph 7(ix). If Mrs Edwards applied for and got the job she would have been giving up the existing permanent job which she already had for a 1 year post that then might not have been renewed at the year end.  So the London Borough had the idea that if she applied for and got the job, the job which she had left - her old job - should also then be marked ‘short term’ so that if the new senior job was indeed brought to an end at the end of the short term there would not be a permanent incumbent having replaced her in her old job but someone who could also be then un-renewed so that Mrs Edwards could then revert to her old job. 

And this was explained to Mrs Edwards.  The Tribunal says this:
“Mr Kilgariff wrote to the Applicant on 10 October 1997 (page 25 of A1 to inform her about the advertisement of a senior officers position.  He enclosed an application form and told her of the closing date.  He said this:
“You will note initially that the post is offered on a 1 year contract.  However, as I said at our meeting on 5 August.  If you were to make a successful application then recruitment to our own permanent position would be for an identical corresponding contract period.”
“We find that this a clear reference to Mr Kilgariff’s assurance to the Applicant that, if she obtained the appointment, her own post would be filled in the same way, on a fixed- term contract.  Accordingly, if the Senior Assistant’s post could not be continued beyond 1 year, the Applicant would be able to revert to her former position.”

22.	So, on the face of things, the plan was kindly to Mrs Edwards.  However, Mr Abrahams asserts that there were 4 whites who had occupied the job on a permanent basis and they were, he said, the 4 identified white comparators.  The Tribunal said that the allegation that they (that is to say the managers and the Borough) had subjected the Applicant to less favourable treatment than would have been received by another of a different race failed.  The contention that race was ground upon which the decision was taken was also rejected.

23	But we have not been able to see in the Tribunal’s Extended Reasons any explanation of why, if it was the case that the 4 whites had occupied or had been offered the job as a permanent job, yet, when Mrs Edwards was offered it, it was only offered on a short term fixed contract basis?  Why was it that the factors that had led it to be a job so uncertain of renewal in her case that it could only be offered on a short term basis were factors that had not been applicable when it was offered to or occupied by the white women?

24.	This is a second point (which we shall give in a little more detail shortly) but which we think proper to go to a full hearing.  I should say that in the Skeleton Argument Mr Abrahams identifies the 4 particular comparators that he claims were properly identified in the evidence as comparators but they are not mentioned in the Extended Reasons.  It may again be that when Notes of Evidence are available this point will be torpedoed but at the moment it floats.  

25.	The next heading would be The sole issue.  Mr Abrahams’ complains that the Tribunal states that the parties had agreed that there was a sole issue but he says that there never was such agreement and that it was manifest there was more than one issue and that regarding the matter as being simply one of a sole issue was a misdirection that the Tribunal gave itself and that they accordingly erred in law.  But the Tribunal never said that there was a sole issue.  

In their paragraph 3 they say:
“At the outset of this hearing, the Tribunal sought to define the issues and it was agreed that the sole issue was whether the proposed appointment to the one-year fixed-term contract, or any of the issues surrounding that appointment, amounted to an act of racial discrimination within section 1(1)(a) of the Race Relations Act 1976”

One cannot ignore the words “or any of the issue surrounding that appointment.”

26.	Moreover, the Tribunal recognised that in the course of the hearing the issues broadened for example, see their paragraph 8 and their paragraph 11(i).  The Tribunal expressly extended time so that Mr Edwards could assert earlier breaches - see paragraph 11(ii) - and made findings dealing with issues other than the switching of the Senior Assistant job from permanent to fixed, the issue which Mr Abrahams would have as the sole issue – see, for example, the Tribunal’s paragraph 11(iv).  We see no substance in this area of complaint.  We see no arguable error of law under this heading.

27.	Then the next heading is 8 – Procedural Irregularities: Misconduct of the Chairman.  Mr Abrahams appears to have sworn an affidavit on this subject on the 13 April.  Our copies begin at paragraph 8.3 and end half way through a sentence in paragraph 9.  I do not think it is necessary to explore that curiosity further at the moment.  We shall deal only with such matters as are both alleged in the affidavit and the skeleton argument.  A number of sub headings thus appear and the first is: ‘The Chairman apparently sent for a book.”  The complaint is:  
“While I was cross-examining a witness, the Chairman intervened and asked for a book to be brought down to him.  He made it quite clear he had already consulted with the book, as I had already cross-examined Mr Kilgariff on the same issue in question namely authorisation.  Upon receiving the book, he tried to use it to fight the defendant’s case for them.  He read a paragraph in the book to the hearing of the court and said what he had just read showed that I was wrong; then he left the book on a table and invited me to come forward and read them for myself.”

As we has indicated, the Chairman has given his version of events.  As to that, he says this:
“The affidavit refers to my calling for a ‘document’ to be obtained from the Tribunal Library.  This occurred on the 4th day, 12 August 1999 at about 11.10 am.  It was during the cross-examination of Mr Simmonds and it was being put that there had been a breach of Section 89(1) of the Local Government Act 1972 by the Respondent.  This was a matter which had been raised earlier during the hearing and I thought it appropriate to ask the Clerk to bring the Act to the Tribunal room since neither side had photocopied the statutory provision.  My notes record that at 11.14 am I read out the terms of Section 89(1).  I recall, that the provision upon which Mr Abrahams was cross-examining related to the procedures to be followed when a vacancy for a Councillor arose.  It had nothing to do with vacancies in respect of Council employees.  I made this point and clearly recall that I invited Mr Abrahams to look at the book.  He did not want to see the relevant volume of Halsbury’s statutes and made this plain.  I left it on the table, and I believe that I commented that it would remain there throughout the hearing.  As far as I am aware, neither he nor Mr Chudleigh for the Respondents did consult the statute.  I should add that there was no protest made about this during the hearing.  The matter was never referred to by Mr Abrahams in his lengthy written submissions.  Nor did he refer to it in any of the letters that he wrote between the conclusion of the hearing and the promulgation of the decision.  I am bound to refute the suggestion that I was taking the Respondent’s side.  I did not know in advance what that Section of the Act dealt with, and it seemed to me (and to the Tribunal members), to be necessary to read the Section in order to follow the cross examination.”

28.	When a cross examiner begins to touch issues of law with a witness of fact, a Chairman is entirely right to be vigilant to see that the law which has been put to the witness is well founded.  The Chairman says:
“ I made so far as I recall no adverse comment but merely pointed out that the terms of the Section did not match what was being put to the witness in cross examination.

That is not being one sided.  It is a Chairman doing his job in insuring that if the law is put to a witness it is the appropriate law and correctly stated.  There is no arguable point of law in that area.”

29.	There is allegation of hindrance to the Applicant or her Representative in putting her case.  It is true that the Tribunal did refuse an adjournment but the adjournment was not sought in order that the Applicant should be better able to meet some point that had just arisen or which had taken her or her representative by surprise or for any other purpose such as might be used to justify an adjournment on forensic grounds, or for example, on compassionate ground, but it seems simply to have been an adjournment sought for the personal convenience of the representative.  Moreover, it was a personal convenience which the Tribunal felt was not thoroughly made out in front of them.

30.	Halsbury statutes of course were not new evidence.  They were not evidence at all.  Mr Abrahams does not in any event say that he requested an adjournment in order the better to consider Halsbury’s statutes and the Chairman says that he, Mr Abrahams, did not even take up the invitation to consult the statute.  So we see no error of law, even an arguable error of law, in this part of the case.
31.	Another sub-division under the heading of Misconduct by the Employment Tribunal is that a premature end was put to the case.  Mr Abrahams’s case seems to be that he was unable to cross-examine the London Borough’s witnesses as to London Borough’s Standing Orders because the Standing Orders were not before the Tribunal at the time.  

32.	If he wished to cross-examine on the language of the Standing Orders the obligation was upon him to foresee the need for the Standing Orders and to have had them before the Tribunal in good time before the hearing.  There is no suggestion that an Application was made for disclosure in advance of the hearing or even at the hearing and he does not say that he applied for a recall of any of the London Borough’s witnesses in order to cross-examine on the subject.   

The Chairman says as follows:

“The evidence of Mr Simmonds included the following which I take directly from my note of evidence:-
“Chief Officer has delegated responsibility to run the department – filling a post of a temporary nature is normal business of running Department - wholly inappropriate to refer to Chair for urgent action.”
Later on in the day, shortly after 2.15 pm, I have a note that Mr Abrahams said:-
	“Should have documentary evidence.”
This plainly referred to the Standing Orders and the Tribunal at that point said it was up to the parties whether they produced the Standing-Orders.  After re-examination, Mr Simmonds was released at 2.41 pm.  I have no note either then, or at any earlier stage in the proceedings that day, of the Applicant applying for Mr Simmonds to be re-called to give evidence about Standing-Orders.  In fact, he had already given his evidence in this regard and the only outstanding matter was to provide that the parties be at liberty to put in and rely upon Standing-Orders.”

33.	The hearing ended and provision was made for written final submissions.  There was no application to oppose the end of the oral hearing or to oppose that the next step should be written submissions.  Nor does Mr Abrahams say that he did not have a sight of the Standing Orders.

34.	We see no error of law in this part of the case, no arguable error.  We do not deal with Mr Abrahams’ general allegations of misconduct on the Tribunal’s part.  For example, in the affidavit he says:
“Furthermore, the Chairman insulted me in front of everybody, which annoyed me greatly and affected my cool.”

35.	We do not deal with that sort of allegation as, although it is in the affidavit, is not in the Skeleton Argument and it is the Skeleton Argument we have been treating as the foundation of what is sought to be argued by Mrs Edwards.  Had that sort of allegation been persisted in we would have required the evidence of others who were present, as we have explained in the fairly recent decision of this Tribunal in the case called Facey.

36.	Then Mr Abrahams’ complains in the Skeleton Argument of delay on the Tribunal’s part.  He says:
“Finally, the Applicant would argue that no reasonable Tribunal would withhold a Tribunal decision for as long as it did occur in this case.”

37.	It seems to us he misunderstands the position.  The Tribunal not only heard the case orally in August 1999 but met in Chambers to consider it on 15 November 1999 and 7 January 2000.  It is often very difficult, especially in a holiday season, such as August, to reconvene the Employment Tribunal’s three members.  The decision was sent to the parties on 20 January, only 13 days after their last meeting on the case.  So far from that being exorbitant delay, it was a reasonably expeditious decision given that there had been 4 days of oral evidence and arguments.  But, even if it have not been, it would not give rise to any conceivable error of law.  

38.	We do not need to examine whether the decision was sent out by the Employment Tribunal to the Applicant or to Mr Abrahams but it is to be noted that Mrs Edwards in her IT1 had not identified Mr Abrahams as her Representative, so there might have been room for some confusion.

39.	Moreover, Mrs Edwards did not lose the ability to seek a Review, which is what Mr Abrahams claimed.  She could have sought to have had one by way of rule 11(4), having the time extended under Employment Tribunal rule 15.  And she did, after all, manage to put in a Notice of Appeal in time and has been able to develop such parts as her Representative has seen fit in his 9 page Skeleton Argument, with which we have so far been dealing.

He says in that Skeleton:
“The Tribunal appears to have thus also breached Article 6 of the Convention for the Protection of Human Rights.”

40.	But such an assertion adds nothing to the individual points that were previously raised by Mr Abrahams and which we have dealt with.  So, summing up then, the Notice of Appeal needs to be amended in part by deletion and in part by addition.

41.	It is going to have to end up as asserting only (and we can only emphasise the word only) the 2 grounds which we have permitted to go forward.  In so far as they or either of them is not already in the Notice of Appeal, there can be addition to the Notice of Appeal so as to incorporate them.   But in so far as the existing Notice of Appeal refers to other grounds, those other grounds must be deleted.  To assist in that process we need to describe the 2 arguable grounds in a little more detail.

42.	The first is this, that the Tribunal erred in law in relation to their finding in paragraph 11(iv) that “The circumstances were different” in that so to hold without explaining, at least in outline, what the relevant circumstances were in Mrs Edwards’ case and in the cases of the 2 alleged comparators, Hannah Stamp and Carol Boardman, and in what respects they were held to be different amounted to a breach of the principles adumbrated in Meek v The City of Birmingham.  That is the first point, which we allow to go forward.  The second, is that the Tribunal erred in law in relation to its holding in its paragraph 11(vii) that “the allegation that they subjected the Application to less favourable treatment than would have been received by another of a different race fails.”  It is that so to hold without explaining at least in outline the relevant circumstances in which Mary Lock, Paul Richardson, David Trott and Margaret Willmott were given the opportunity to apply for the Senior Assistant (Invoicing) position as a permanent position (if they were) and in which Mrs Edwards was not (if she was not) amounted to a breach of the Meek principles.

43.	The Notice of Appeal must be amended to leave only those 2 issues remaining for the Employment Appeal Tribunal to deal with at the full hearing.  At the full hearing the Employment Appeal Tribunal can be expected to limit the Appellant strictly to those 2 grounds.

44.	Of course, even those 2 grounds, as so specified, assume, in Mrs Edwards’ favour, what the evidence was in the case, for example, whether those 6 comparators that we have mentioned were duly identified as comparators and that relevant evidence was given in relation to them.  At this ex parte stage we have been concerned only with what it is reasonably arguable and we are content to proceed on assumptions as to the evidence in Mrs Edwards favour.  But after the Notice of Appeal has been amended but before the full hearing at the Employment Appeal Tribunal, the Chairman should be sent a copy of this transcript and be requested to supply his notes of the evidence, if any, which relates to either or both of the 2 issues which we have and enabled to go to the full hearing.

45.	The time for amending the Notice of Appeal is a matter which we will now take up with Mr Abrahams but 14 days from the sending out of the transcript of this judgment should be a sufficient time within which Mr Abrahams can amend the Notice of Appeal by deletion and by addition in accordance with the judgment we have just delivered.