Appeal No. EAT/0399/03 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2003

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

CROWN PROSECUTION SERVICE	APPELLANT

MRS J THIND	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPOINTMENT FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	MISS R HAYNES
(of Counsel)
Instructed by:
The Treasury Solicitor (Employment Team)
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	
For the Respondent	MISS E SMITH
(of Counsel)
Instructed by:
Trade Union Office, Room 309
Crown Prosecution Service
50 Ludgate Hill
London EC4 7EX	

HIS HONOUR JUDGE PETER CLARK

1	On 17 December 2002 an Employment Tribunal sitting at Watford under the chairmanship of Mr Adamson promulgated its decision on liability with Extended Reasons in this matter in which the Applicant, Mrs Thind, originally complained of both sex and race discrimination against her employer, the Respondent Crown Prosecution Service (“CPS”).  The Tribunal upheld her complaint of race discrimination.  The sex discrimination complaint was withdrawn by the Applicant.  The matter was put over for a remedies hearing.

2	Application was made on behalf of the CPS for that hearing to be deferred until after the hearing of the CPS appeal against the liability decision, but the remedies hearing went ahead and by a remedies decision, promulgated on 21 March 2003 the Tribunal awarded the Applicant £5,000 compensation for injury to feelings plus interest, and made a recommendation which was to the effect that the Respondent offer the Applicant promotion to the Grade B2 position from the date in July 2001 when the Respondent’s confirming officer signed off the appointments to that grade at that time, together with any arrears of salary and benefits that there may be, within 28 days of the promulgation of the remedies decision.

3	Having appealed against the liability decision the Respondent also appealed against that remedies decision to the EAT.  Those separate appeals were given case numbers EAT/398/03 and EAT/399/03 respectively.

4	Both appeals were listed for a full inter partes hearing before a division presided over by Judge Levy QC sitting on 25 July 2003.  The appeal against the liability decision (EAT/398/03) succeeded.  The appeal was allowed and the matter remitted for rehearing by a differently-constituted Tribunal.  No transcript of the judgment delivered by Judge Levy QC in that appeal was sought or ordered.

5	As to the remedies appeal (EAT/399/03) I am told by Counsel that due to the lateness of the hour the appeal could not itself be heard.  Miss Haynes on behalf of the CPS apparently submitted that the question of remedies should also be remitted to the fresh Employment Tribunal together with the issue of liability.  Miss Smith for the Applicant contended that there should be a stay on the remedies appeal until after the remitted liability hearing before the Employment Tribunal.

6	No clear resolution of that issue appears from the EAT’s order made in the remedies appeal.  That order reads:

“THE TRIBUNAL ORDERS that the Appeal be adjourned until the first convenient date in October 2003 to be heard by a Judge sitting alone for directions.  Each counsel to lodge skeleton arguments of directions sought 7 days before the hearing date.”

Today Miss Haynes and Miss Smith appear again before me.

7	Effectively Miss Haynes’ principal submission is that the question of remedies should, by my order today, also be remitted to the fresh Tribunal.  The difficulty with that, as I sought to point out, is the extent of my powers at this directions hearing under Rules 24 and 25 of the Employment Appeal Tribunal Rules 2001.  A full division having adjourned the remedies appeal, it seems to me that it is not open to me to take the course which Miss Haynes seeks.

8	Alternatively she invites me to order accelerated hearing of the remedies appeal so that that matter can be resolved before the liability hearing before the Employment Tribunal.  On this aspect I prefer the submission of Miss Smith, that is to the effect that on the contrary the remedies appeal should be stayed until after the liability hearing below.  I reach that conclusion because if the Applicant is unsuccessful at the remitted hearing then the question of remedy becomes academic and the appeal against the remedies decision will necessarily succeed.

9	Miss Smith tells me that her client is prepared to stand by the original remedies decision in any event.  However, as Miss Haynes points out, the question of remedy is very much dependent upon the view on liability formed by the fresh Tribunal at the remitted hearing.

10	Speaking for myself, I would have been inclined, had I been sitting on the full division on 25 July, simply to remit both matters to a fresh Tribunal, thus disposing of the remedies appeal.  However, that division did not take that course.  There has been no appeal to the Court of Appeal against the interlocutory order adjourning the appeal and I regard my hands as tied.

11	Accordingly the short answer is that I shall order a stay on appeal EAT/399/03 until such time as the fresh Employment Tribunal has ruled on the question of liability.