Appeal No EAT/1033/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 March 2002

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR B GIBBS

MR F DENTEH	APPELLANT

1)   COMMISSIONER OF POLICE FOR THE METROPOLIS	RESPONDENTS
2)	MR E SNOW 
3)	MS C HULME 
4)	MR J PARKER
5)	MS M HARDING

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR F DENTEH
(In Person)	

JUDGE PETER CLARK:
1.	This appeal brought by the Applicant Mr Denteh against a reserved decision of the London (South) Employment Tribunal, chaired by Ms Christiana Hyde, dismissing his various complaints against the Respondent, the Commissioner of Police for the Metropolis and others, first came on for preliminary hearing before a division presided over by Mr Recorder Brian Langstaff QC on 27 March 2001.  

2.	On that occasion the preliminary hearing was adjourned so that the chairman and lay members of the Tribunal could comment upon a suggestion made by the Appellant that on one occasion the Tribunal were left on their own with the Respondent’s witnesses and legal team, the Applicant having been asked to leave the Tribunal room whilst the chairman noted down certain authorities for his benefit in preparing his final written submissions.  

3.	As a result of the direction given on that occasion, the chairman provided her comments, in which she said this; “I do not recollect anything untoward occurring at the end of the case and as I indicated in my previous comments I would consider it grossly improper for one party to be in the hearing room in the absence of the other at any time”.  The two lay members of the Tribunal also commented on this suggestion.  Mr Pugh wrote; “My unqualified assurance is given that in this case, as in any other, if one party had remained seated for more than two seconds, unobserved by the chairman, after the other party had left the room, then I would have drawn the chairman’s attention to the fact”, and his colleague, Mr Easterling writes; “The Applicant’s statement that after the evidence was complete, for that is when the offer to assist Mr Denteh was made, we kept the Respondents back to clarify or garner new evidence, which as can be seen as of little significance in the overall picture, simply beggars belief”.  The point specifically taken by the Appellant is at paragraph 163 of the Tribunal’s reasons, that is a finding that the Respondent encountered some difficulty in obtaining a reference in respect of one of Mr Denteh’s former employers.  The Appellant contends that no such evidence was given in his hearing and he therefor concludes that that was a matter which was discussed in his absence on the material occasion, which he says came at the end of the final day of hearing on 15 November 1999.  

4.	The factural issue as to whether or not the Respondent’s team remained in the Tribunal room in the absence of the Appellant for some 15 minutes is not one which we are able to resolve today.  We bear in mind the guidance given by Lindsay P in Facey v. Midas Retail Security [2000] IRLR 812, where an issue of fact as to what happened below, which goes to the question of alleged bias or prejudice on the part of the Tribunal needs to be resolved.  It can only in certain circumstances be resolved by hearing oral evidence at the EAT.  For that purpose, there being no question of inviting the chairman or members of the Employment Tribunal to attend to give evidence, it must be by means of evidence from the parties.  

5.	We have the Affidavit evidence of Mr Denteh and in addition, he has produced an Affidavit from his friend Frank Etuh Menson, which supports the Appellant’s version of events.  It seems to us that the only satisfactory way in which we can deal with this central conflict of fact is to make two further directions in addition to those given by Mr Recorder Langstaff.  The first is that the Respondent is directed to file with the EAT an Affidavit from a representative of the Respondent who was present in the Tribunal on 15 November 1999, commenting on the evidence of the Appellant and Mr Etuh Menson, and indeed the comments received from the members of the Tribunal on the central issue as to whether there was a time when the Respondent’s party was present in the Tribunal room in the absence of the Applicant.  

6.	The second direction we give is that the chairman be asked specifically whether from her notes of evidence she is able to produce a note of evidence on which the particular finding at paragraph 163 of the Tribunal’s reasons, to which we referred, was based.  Once this material is collected, copies to be provided to the parties, the matter will be returned to me for further directions.  I shall sit on the next hearing; and if practicable the same lay members will sit with me.  On this basis, this preliminary hearing is adjourned.