Appeal No.  EAT/1169/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 February 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MS B SWITZER

THE HOME OFFICE	APPELLANT

MR S A BUTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR. G. BRANCHFLOWER
(of Counsel)
Instructed By:
Ms Sharon Hiles
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

JUDGE PETER CLARK:

1.	We shall allow this appeal to proceed as presently constituted to a full appeal hearing with this observation.  Appeals from an Employment Tribunal are on points of law only. Section 21(1) of Employment Tribunals Act 1996.  On further appeal from the Employment Appeal Tribunal to the Court of Appeal, the question is not whether the Employment Appeal Tribunal is right but whether the Employment Tribunal is right.  Campion v Hamworthy Engineering [1987] ICR 966.  The same applies on final appeal to the House of Lords.  That is the theory.  

2.	Whilst we must slavishly follow the approach of the Court of Appeal, that is subject to further guidance from the House of Lords.  Recent examples of where the House of Lords has reinstated the Employment Tribunal’s decision, overruling the Court of Appeal, include Carmichael v National Power [1999] ICR 1226, on the question of contract of service or contract for services and in the field of sex discrimination, Halfpenny v IGE Medical Systems [2001] IRLR 97.

3.	Of course we are not in a position to anticipate what may happen in future appeals to the House of Lords, however, of possible relevance to the instant case is that we understand that the Court of Appeal’s decision in Abbey National Plc v Ackroyd (A1/1999/1231). 10 November 2000, as yet unreported) is proceeding to the House of Lords.  In that case we dismissed an appeal from an Employment Tribunal decision upholding the Applicant’s complaint of unlawful direct racial discrimination.  We might not ourselves have reached the same conclusions sitting as an Employment Tribunal but, where matters of inference are concerned, there is a thin line between legitimately finding an error of law and impermissibly giving effect to a different view of the facts from that taken by the fact-finding Tribunal.

4.	We mention this because it seems to us that this appeal lies very much on the borderline exemplified in Ackroyd.  It follows that at the full hearing, this Court may wish to be addressed on the proper approach to be taken on appeal in a case just such as this one.  For the purpose of the full hearing, we shall direct that this liability appeal be listed for 3 hours Category B.  There will be an exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing,  Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.  We shall direct that the Chairman be asked to provide his notes of the evidence both, in examination-in-chief and cross-examination and any questions asked by the Tribunal of the Home Office’s witness Nick Jones.  Copies of those notes and evidence will be provided to the parties.  They will be included in the Employment Appeal Tribunal’s bundle for the purpose of the hearing of this appeal.  In addition the Witness Statement of Nick Jones, which stood as his evidence in chief, will also be included in the bundle, as will the Section 65 questionnaire and answers in this case.

5.	Mr Branchflower points out that on the 15 January 2001, a remedies hearing was held in this case and that matter has been resolved by the Tribunal.  He anticipates that a notice of appeal will be lodged against the remedies’ decision.  In that event his solicitor should inform the Employment Appeals Tribunal at the time when the new notice of appeal is lodged that this liability appeal is already proceeding to a full hearing.  Consideration will then be given by the Registrar as to whether or not a preliminary hearing is necessary in the remedies appeal.  If not, the parties will be asked to notify the Employment Appeals Tribunal of any alternation to the time estimate indicated above for the liability hearing only.

6.	Finally Mr Branchflower has raised the question of enforcement of the remedies decision.  Mr Butt is in Court today and has sensibly indicated that he does not propose to seek to enforce the remedies decision through the County Court before the outcome of the liability appeal is known.