AppealNos.EAT/732/00
                             EAT/766/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 2000

Before
HIS HONOUR JUDGE A WILKIE QC
MRS J P DRAKE
MRS D M PALMER

EAT/732/00
MR A PHOTIS	APPELLANT

1)KMC INTERNATIONAL SEARCH & SELECTION
2) DEPARTMENT OF TRADE & INDUSTRY	RESPONDENTS

EAT/766/00
MR V BRUCE	APPELLANT

1)KMC INTERNATIONAL SEARCH & SELECTION
2) DEPARTMENT OF TRADE & INDUSTRY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellants 
in person	

JUDGE A WILKIE QC

1	This is an appeal respectively by Mr Photis and Mr Bruce against a decision of the Employment Tribunal sitting at London North which was sent to the parties on 11 May of this year.  The decision of the Tribunal was that it has no jurisdiction to entertain the claims made respectively against KMC International Search & Selection and the Department of Trade & Industry.  In essence, the complaints made by Mr Bruce and Mr Photis respectively were of disability discrimination and of racial discrimination in connection with the selection process by which persons were or were not appointed to the panels of members set up under the provisions of the Employment Tribunals Act 1996.  

2	Both Mr Bruce and Mr Photis have submitted Notices of Appeal in which they take a number of legal issues.  Normally, in this preliminary hearing it would be for us to determine whether or not these Notices of Appeal give rise to arguable cases so that they might go forward to a full hearing.  The underlying philosophy of this system is that it is not thought to be in the interests of justice that parties should be required to defend appeals which have no sensible prospect of success, and that Appellants who have no arguable case should be informed of this at the earliest possible moment. 

3	This is, however, a general guide and is not an inflexible rule of policy.  It seems to this panel of the Employment Appeal Tribunal that without considering, one way or the other, the merits of these appeals, the interests of justice in this particular case lie with allowing this case to go forward to a full hearing at which full argument can be rehearsed by these Appellants on the basis of their Notices of Appeal, and be met by such arguments as the Respondents see fit to deploy.  The reason for that is that it seems to us that this subject is a matter of intense public interest and importance, it touches upon the process by which members of Employment Tribunals, from whose decisions this Tribunal has jurisdiction to hear, are appointed.  It therefore seems to us that it would be quite wrong, as a matter of principle and contrary to interests of justice for us to form any final view on the merits or otherwise of these appeals in an ex parte hearing.  

4	Therefore we have decided that these cases should go forward together, they should be listed at the same time, rather than sequentially, because, although there are differences in terms of the precise statutory framework which applies to each of the Applicants separately, the underlying principles which they seek to advance are the same, and therefore it is sensible, as indeed it was at the Employment Tribunal that these cases should be conjoined and heard at the same time.  

5	Both Mr Photis and Mr Bruce have addressed us today on a number of ancillary matters.  The first matter that they have raised is a question which apparently was raised before the Employment Tribunal, namely whether, in the light of the fact that one of the Respondents is the Department of Trade & Industry, they might wish to argue that the Employment Tribunal was disqualified to hear their complaint.  That is not a matter which was dealt with by the Employment Tribunal in its decision.  The Employment Appeal Tribunal is charged with the function of hearing appeals from Employment Tribunal decisions based on the grounds raised in the Notice of Appeal.  Thus far there is no ground referring to the suitability or otherwise of the Employment Tribunal having jurisdiction to consider these matters.  Each of the Applicants has raised in the Notice of Appeal, the question whether if an Employment Tribunal has no jurisdiction it leaves them without an effective remedy pursuant to the European Convention on Human Rights as enacted in the United Kingdom in the form of the Human Rights Act 1998.  We make no decision on this point, nor do we anticipate that  the Employment Appeal Tribunal hearing this appeal will be called upon to make any such decision.  Where that leaves the Appellants after their appeal, whatever its outcome, is no doubt a matter for them to consider, either now or in due course with their advisers, but it is not a matter upon which we can tender any advice to these Appellants.  

6	The other matter to which reference was made was that, apparently, the Respondents brought forward, at the Employment Tribunal very late in the day, a number of legal authorities which they intended to rely upon at a time when the Appellants, who acted in person, felt that they had insufficient time and opportunity to consider those authorities, so as to do themselves justice in the hearing.  Notwithstanding that, they both contend that they did equip themselves well, and no doubt that is the case.  

7	This appeal is on a matter of pure law.  It will be for the Employment Appeal Tribunal to consider these issues of law and all the authorities and decide what the law is.  It seems to us that such matters of procedural impropriety, if that is what is alleged, either on the part of the Respondents or on the part of the Tribunal, are of no significance.  Certainly they do not appear in the grounds of appeal, and in our judgment, rightly so.  

8	The issues raised in these appeals are important matters of pure law.  The EAT will hear full argument on all these matters and will be in a position to come to a conclusion..  However, bearing in mind the criticism that has been made by the Appellants of the conduct of the Respondents below, and to some extent, of the Employment Tribunal below, we think it wise that we should give directions as to how this appeal should be conducted.  We agree with their estimate that the appeal will be encompassed within one day and that is the estimated time for the hearing.  It is our view that this is a matter of considerable importance.  It should therefore be listed as a category A case.  We direct that both sides - Appellants and Respondents - do furnish this Tribunal and exchange with each other their Skeleton Arguments not later than 14 days before the date on which the appeal hearing is listed.  Furthermore, attached to those Skeletons should be lists of authorities to be relied upon and we require the Respondents to furnish each Appellant with copies of each authority upon which the Respondents rely as the Appellants, not being legally represented, are entitled to expect that degree of co-operation from the Respondents who have very substantial resources.  We further direct that neither side will be permitted to rely on any authority, without the leave of the Employment Appeal Tribunal, which has not been notified to the other side no later than 14 days of the appeal hearing.  We hope that that will ensure that on the next occasion, both sides have full and ample notice of the arguments and authorities to be relied on by the other side, sufficient to enable them to deploy their respective arguments.