Appeal No. EAT/1138/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2002

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR P R A JACQUES CBE
MR J R RIVERS

MR A SOMERVILLE	APPELLANT

GARDNERS BOOKS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J DAVIES
(Of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme	

MR JUSTICE HOLLAND

1.	We have before us an appeal from a Decision of an Employment Tribunal sitting in Brighton, the Decision together with Extended Reasons being sent to the parties on 31 July 2001.  By way of his ET1 the Applicant Mr A Somerville had complained that he had been unfairly dismissed on 21 August 2000 by the Respondents from his then employment with them as a part time warehouse operative. In the event the Employment Tribunal dismissed the complaint.  The Applicant appeals to this Tribunal.

2.	Our task today is to make the following decision.  If we can discern a point that merits argument with the Respondents represented then it is our duty to adjourn this appeal to a subsequent date upon which both sides may be heard.  If on the other hand we are unable to discern any point that merits argument then it is our corresponding duty to say as much and to dismiss the appeal here and there.

3.	Turning to the situation as developed before us this morning, Mr Somerville has had the considerable advantage of representation by Mr Davies pursuant to the ELAAS Scheme.  We say ‘advantage’ it arises as follows: by reference to the Notice of Appeal Mr Somerville himself was taking two points by way of grounds ‘Witness Statements were not exchanged and read out as ordered.  No notice was given of the cases cited in the Respondents summing up’.  Had matters rested there we must say that we would have been unable to discern a point that would merit an inter partes hearing and we would have dismissed the appeal.

4.	However, with the aid of Mr Davies the situation has been developed somewhat further and it merges that the essence of Mr Somerville’s complaint relates to the way in which proceedings were conducted by the Employment Tribunal. He had assumed that the statements having been exchanged they would be read out in the course of the proceedings so as to establish the evidence in chief and thereafter there would have been cross examination.  In the event the Tribunal, as we understand it, indicated that they had read that which should have been put before it and said that with respect to each witness in turn matters should proceed immediately to cross examination.  Granted, as we understand it from Mr Davies, that this was not a matter of concern with respect to the witnesses called on behalf of the Respondents it was a matter of concern to Mr Somerville himself.  The adoption of this procedure meant that he was in effect unable to develop his own case in his own way in the course of what would be examination in chief and that he found himself being cross examined immediately upon his own notes.

5.	In those circumstances he does not think that he had a fair hearing before the Employment Tribunal and, as Mr Davies points out, there was a potential for issues that were important to have been overlooked or alternatively to have been not fully developed in the course of the evidence.  Mr Davies has drawn attention to a particular point in paragraph 24 of the Extended Reasons in which the Tribunal itself flags up an issue raised by Mr Somerville but indicates that it was not prepared on the evidence before it to make findings on that issue.  

6.	Mr Davies queries as to whether that issue was not in the event quite an important one and also queries as to whether the problem over the evidential situation did not arise from the way in which the Tribunal took of evidence from Mr Somerville.  Mr Davies helpfully put together some fresh grounds of appeal before us and our position is this: that as at today we quite unable to say that there is no point within those grounds so that we can dismiss this appeal.  We take the view that this is a matter that should properly go forward to an inter partes hearing, one benefit of which is that this Tribunal then would be able to see the statements that were exchanged; they will be able to see that which came from Mr Somerville; and they will be able to form a proper view as to the merits of the way in which the Tribunal took evidence in this matter. They will then be able to make a decision as to whether the Tribunal was in a position properly to decide the issues as they arose through the complaint of Mr Somerville.  It may well be that sight of all this documentation will not rebound in Mr Somerville’s favour but that remains to be seen and the point is at this stage entirely arguable and one that we for our part simply cannot take a final view about.

7.	Thus it is we adjourn this matter for that inter partes hearing.  We would direct that the Notice of Appeal be amended within 14 days.  We note that which is in front of us now.  It is no more than indication of what might be in the amended Notice of Appeal.  It remains a matter for Mr Somerville as advised as to what precise formulation is put in this document.

8.	Further, we think that this a case in which we should ask that the Chairman do provide a copy of his notes and finally so far as listing is concerned, Category C and half a day.