AppealNo.EAT/703/00
                  EAT/704/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 February 2001

Before
MISS RECORDER SLADE QC
MR P R A JACQUES CBE
MRS R CHAPMAN

HARRIS DA SILVA	APPELLANT

1) MRS M WALLS  2) MR A CHRISTODOLOU	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants
EAT/703/00

______________________________________________

For the Appellant
EAT/704/00	MRS LINDA GOLDMAN
(of Counsel)
Instructed by:
Messrs Harris da Silva
Solicitors
355 City Road
London EC1V 1LR
____________________________

MRS LINDA GOLDMAN
(of Counsel)
Instructed by:
Mr Andrew Christodolou
Solicitor
355 City Road
London EC1V 1LR	

MISS RECORDER SLADE QC

1	This is the preliminary hearing of appeals brought by a firm - Harris da Silva - and an individual, Mr Christodolou, against the decision of an Employment Tribunal.  That Employment Tribunal held that both Appellants had unlawfully discriminated against the Applicant, Mrs Wallis, by reason of her sex, and that the firm victimised Mrs Wallis by reason of her sex, and that she was unfairly dismissed for assertion of her statutory rights.  The Employment Tribunal dismissed other claims by Mrs Wallis.  

2	The Tribunal reached that conclusion after a five day hearing in March of this year.  I will consider both appeals on this preliminary point separately, but first, dealing with the appeal brought by the firm, and it will be seen there is a considerable overlap between the two.  Harris da Silva is a firm of solicitors in which Mr Christodolou is and Mrs Wallis was an assistant solicitor. 

3	The grounds of appeal advanced on behalf of the firm are set out in the Notice of Appeal and the Skeleton Argument.  At a very late stage in the day, Mrs Goldman, who appears for both Appellants, raises a point which goes to the jurisdiction of the Tribunal to entertain the complaint of victimisation by way of dismissal.

4	It is most unfortunate that that point was not taken in the Notice of Appeal or Skeleton Argument and has been taken very late in the day.  It is not apparent from the Tribunal’s Decision, or indeed the Interlocutory correspondence that occurred before the hearing, that this was a point that was raised specifically before.  Be that as it may, the point has been raised now; it goes to jurisdiction and it would seem to require no further evidence.  It appears to us, having regard to the provisions of section 76 of the Sex Discrimination Act,  and sections 6(2)(b) and 4 under which the complaint of dismissal by victimisation is brought, that the point is arguable and should be considered.  It must be remembered that the period within which proceedings under the Sex Discrimination Act are to be brought run in the case of a dismissal, from the date when the act complained of was done, and not as in unfair dismissal claims, from the effective date of termination.  In this case the alleged act of victimisation, the decision to dismiss, occurred on 7 December 1998.  The Originating Application  was presented more than three months later, on 13 May 1999.  These are all matters which are fit to be considered at a full hearing.  

5	We will now turn to the grounds of appeal which were set out in the Notice of Appeal and Skeleton Argument.  Dealing first with bias, a ground common to both Appellants, reliance is placed both on what happened prior to the hearing, and also events during the hearing of these complaints.  We remind ourselves that when looking at bias, so far as a hearing is concerned, the correct approach is “would a reasonable observer present reasonably gain the impression of bias?” and that bias can be exhibited if the adjudicating body unfairly regards the case of one party, as compared with the other.  

6	We have listened carefully to the arguments advanced by Mrs Goldman, both in relation to the events prior to the hearing and at the hearing.  We have read the documentation and also seen the Chairman’s response.  So far as the complaints about pre-hearing matters are concerned, it is not appropriate simply to do a tally of how many applications were successful for one party, and how many were dismissed for the other party, and draw an inference of bias from that.  One would have to look at the substance of the applications and the justification for the actions that were taken.  It must also be remembered that the Tribunal Chairman taking the decision on the interlocutory applications was not the Chairman who conducted the hearing.  We can see no justification for any allegation of bias, in relation to the orders and directions made prior to the hearing.  

7	Turning to the arguments about bias at the hearing itself, what is important in conducting a hearing, and in reaching a decision is that the adjudicating body takes a decision, having had an open mind, not predisposed towards one party or another party.  It may well be that during the course of the hearing the adjudicating body forms a provisional view one way or another, but that in itself is absolutely no indication of bias, and no doubt happens all the time.  In our view, what has been advanced indicates no more than that, albeit some gestures and words may have been used to which the Appellants take exception.  In our view, the argument advanced on bias is not reasonably sustainable. 

8	So far as the other complaints made about this decision are concerned on behalf of Harris da Silva, it is said that the Tribunal erred in law, in that it failed to give adequate reasons for its decision that the firm had discriminated against, victimised and unfairly dismissed Mrs Wallis.  The well known case of  Meek v Birmingham City Council  [1987] IRLR 250 establishes that a party ought to know from a Tribunal decision why it has won or why it has lost.  Whilst detailed particulars need not be given in a Tribunal decision, the decision ought to measure up to that minimum standard.  

9	Regrettably, we have come to the conclusion that it is arguable in this case that this Tribunal decision does not measure up to that minimum standard.  It is not, we think, entirely clear on what basis the Tribunal made its various findings, and certainly it could be observed that the contentions and evidence advanced by the parties were not sufficiently summarised.  We repeat that we do not take this view on the basis that every single argument and piece of evidence is to be included in a Tribunal decision, that is far from the case, but a basic minimum is required.  

10	Further, it is said on behalf of Harris da Silva that this Tribunal decision is perverse.  At this preliminary stage, we do not express a view as to whether we consider that there is force in that argument or not.  It is quite difficult to even come to a preliminary conclusion on that, having regard to the nature of the decision itself, and the view that we have taken about the adequacy of reasons given in that decision.  Those points are common to both Appellants.

11	So far as Mr Christodolou’s appeal is concerned, as we have said, most of the points dealt with earlier in this judgment apply equally to his appeal.  What concerned him most closely was the allegation of sex discrimination by way of sexual harassment, if we can use that shorthand phase for it.  Again, we consider that there is some force in the criticism that the decision contains inadequate findings in relation to that allegation.  We repeat our observations about perversity in that we cannot express a view on the strength of the perversity arguments in the light of our view of the adequacy of the reasons in the decision. 

12	As for the time point taken on behalf of Mr Christodolou, this Tribunal did not extend time under the Sex Discrimination Act 1975, Section 76(5), the just and equitable basis, it merely said that it would have extended time if it were wrong about the last event complained of being in time.  We cannot see that there was any obvious error in the approach adopted by the Tribunal on that.  It was a question of fact for them, on the evidence as to whether the complaints of sex discrimination were or were not made out.  There was a complaint of a continuing act, the last example of which would have been within time.  

13	We consider that these appeals are fit to go to a full hearing.  However we give a costs warning.  Quite a considerable amount of time was expended today on the argument on bias.  We do not consider that the bias argument is reasonably sustainable.  If that matter is persisted in, we would wish our views on bias to be put before the Employment Appeal Tribunal which hears the substantive appeal, so that it can determine whether or not to make a Costs Order should that ground of appeal be ultimately unsuccessful.  

14	Now, I will make some directions: Category B, Skeleton Arguments to be exchanged 14 days before the date of hearing.  Notes of Evidence.?  Mrs Goldman, length of hearing.

(Mrs Goldman)  I am instructed to ask for Notes, I do not know how difficult it is to get them..

Well, if you are going to pursue a perversity argument, you may find that you need them.  But I think you need to carefully consider and target your requests.  Certainly on a five day case we would not be minded to burden the Tribunal by having to produce all of those notes.  You may wish to amend your Notice of Appeals……14 days, and, once you have reflected on that, within 14 days, you can then apply to the Registrar for giving any terms of any specific request for Notes of Evidence to be produced by the Chairman.  

As for length of time for the substantive appeal, would a day do?  

Yes, of course if the Chairman’s Notes can be produced…..

The estimate would be the hearing, one day.  Both appeals to be consolidated.  Perhaps for caution, we will say a day to a day and a half, bearing in mind that the two appeals will be heard together.