Appeal No.EAT/451/00 & EAT/827/00

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 18 September 2001

Before
HIS HONOUR JUDGE PETER CLARK

(1) ZAIWALLA & CO 
(2) MR T HODSON	APPELLANTS

MS J WALIA	RESPONDENT

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised 

	APPEARANCES

For the Appellants	MR AJMALUL HOSSAIN
(One of Her Majesty's Counsel)
Instructed by:
Zaiwalla & Co
33 Chancery Lane
London WC2A 1ZZ	
For the Respondent	MR TIMOTHY PITT-PAYNE
(of Counsel)
Instructed by:
Messrs Haider Kennedy
Solicitors
9 Balham High Road
London SW12 9AJ	

JUDGE PETER CLARK

1	This is a hearing for directions in the appeal brought by the Respondent below, Zaiwalla & Co, against both the liability and remedies decisions of an Employment Tribunal, sitting at London North, under the chairmanship of Mr Peter Hildebrand.  

2	Having had the submissions from Counsel appearing before me today, I give the following directions:

(1)  The combined appeals will be listed with a time estimate of one and a half days.

(2)  The application on behalf of the Appellant for permission to amend the amended Notice of Appeal dated 1 December 2000 is refused.  The point which Mr Hossain QC raises, by way of proposed amendment, is this: that the Employment Tribunal have no jurisdiction to consider the Respondent’s complaints of sex discrimination because they were raised after the termination of her employment.  

There are two fundamental objections to that proposed amendment.  The first is that the point was not advanced before the Employment Tribunal, and in my judgment, the Appellant ought not to be permitted to raise it for the first time before the EAT.  

Secondly, and more substantially, the point is, as Mr Pitt-Payne suggests, wholly misconceived.  This is not a case in which the subject matter of the complaint of discrimination itself arose after termination of employment, and consequently, the principle most recently affirmed by the Court of Appeal in Rhys-Harper v Relaxion Group PLC [2001] IRLR 460 does not apply.  

(3) Chairman’s Notes of Evidence.  
There are presently before me the manuscript notes in full of the Chairman’s Notes of Evidence taken below, those manuscript notes having been obtained pursuant to the direction of Mr Justice Bell, made at the preliminary hearing in this case on 16 November 2000.  Mr Hossain sensibly proposes and Mr Pitt-Payne agrees, that it would be helpful to all parties and to the EAT which eventually hears this appeal, if each party identifies those parts of the Chairman’s manuscript notes which may be relied upon at the full hearing, and that those extracts be transcribed for the purpose of that hearing.  

Accordingly I direct that each party serve on the other, by 4 pm on 2 October 2001, those extracts from the Chairman’s manuscript Notes of Evidence on which they may rely.  I also record the Appellant’s undertaking to have both parties’ extracts typed up within fourteen days thereafter, and copies of the typed notes will then be filed with the EAT and served on the Respondent’s solicitors.  

(4)  Further evidence.
At paragraph 10 of the judgment of Mr Justice Bell at the preliminary hearing, reference is made to an argument which the Appellant is permitted to raise at the full appeal hearing in relation to the question as to whether Mr Keith Vaz MP gave his consent to the Respondent to introduce into evidence before the Employment Tribunal a letter from Mr Vaz to the Respondent.  For that purpose I shall direct that the Appellant file and serve on the Respondent by 4 pm on 2 October 2001 any witness statement or witness statements upon which it relies, in connection with evidence placed before the Employment Tribunal, either from Mr Vaz or from any member of the Lord Chancellor’s Department.  Thereafter the Respondent shall, if so advised, file and serve any witness statements in reply twenty one days thereafter.  I shall not, today, make any direction as to the admissibility before the EAT of any of that evidence, the application for its admission in evidence must be renewed before the full Tribunal which hears this appeal.  

Secondly, ground 5 of the amended Notice of Appeal raises complaint as to the Employment Tribunal’s interlocutory ruling set out at paragraph 4 of the liability decision whereby certain evidence relating to the comparator, Mr White, was ruled inadmissible.  It is common ground between Counsel that a bundle of those documents which the Appellant sought to put before the Employment Tribunal, but was not permitted to do so, ought to be prepared for the purpose of the full appeal hearing. Copies of that bundle should be served on the EAT by 4 pm on 2 October 2001, and by that time also, a copy bundle should be served on the Respondent.  

There are no further directions to be given today.  Mr Hossain has indicated that a small bundle of documents which were before the Employment Tribunal may be required for the full appeal hearing, in which case it will be for the parties to agree that bundle and to lodge copies, not less than fourteen days before the date fixed for the full appeal hearing.  

I should add that skeleton arguments should also be exchanged and filed not later than fourteen days before the date of the full hearing.