Appeal No. EAT/38/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 September 1994

	Before

	THE HONOURABLE MR JUSTICE FRENCH

	MRS T MARSLAND

	MRS M E SUNDERLAND JP

MR M LAHER	APPELLANT

(1) WANDSWORTH BOROUGH COUNCIL	RESPONDENTS
(2) MRS C BURGESS, WESTMINSTER COLLEGE

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Dr A Majid
Commission for Racial
Equality

For the Respondents	MR N GIFFIN
Martin Walker & ???
Borough Solicitor
Wandsworth Borough
Council

	MR JUSTICE FRENCH:  We would like to start by thanking Dr Majid and Mr Giffin and congratulating them upon the forceful, able and attractive way in which the arguments before us have been expressed.

	We have before us an appeal from a decision of the Industrial Tribunal held at London (South) on 7 days between 12 December 1990 and 10 September 1991.  The decision of the Tribunal was in the following terms:
"The unanimous decision of the Tribunal is that the Respondents did not discriminate against the Applicant as alleged by him, or, in any way contrary to the provisions of the Race Relations Act 1976 within the period specified in section 68(1) of that Act." 
Against that decision the Appellant, Mr Laher, now appeals.

	After Dr Majid for the Appellant had outlined the nature of the case and in answer to our question had told us that he was seeking a fresh hearing before a differently constituted Tribunal if successful in his appeal, Mr Giffin for the Respondents advanced an alternative proposal which, he submitted would, or might well be, decisive of the appeal in favour of the Respondents.  This was that we should give certain directions which were necessary before the substance of the appeal could properly be heard.  The directions which Mr Giffin sought were these:

1.That the affidavit of Martin Walker dated 7 September 1994 be admitted in evidence before the EAT.

2.That any affidavit in response on behalf of the Applicant be admitted, such affidavit to be filed within X days. (He did not specify a period)

3.That any comments or notes of submissions made by the Industrial Tribunal Chairman, relevant to the matters raised in the said affidavit of Mr Walker, be admitted in evidence before the EAT.

	These directions were, he submitted, essential to a proper hearing of the appeal because they concerned whether or not certain complaints advanced in front of the Industrial Tribunal were time-barred by reason of section 68 of the Race Relations Act, or had been expressly abandoned or not pursued at the Industrial Tribunal hearing.  There was a factual dispute between the parties as to what had been said and done at the hearing regarding those matters.  A fair determination of this appeal depended on and resolution of the dispute would, he submitted, be decisive in the appeal were those matters canvassed and decided in favour of the Respondents.  

	We are persuaded that the course proposed by Mr Giffin on behalf of the Respondents has a prospect of enabling the EAT to reach a conclusion as to the merits of the appeal.  This is a prospect not to be disregarded lightly.  The course proposed by Dr Majid would inevitably involve a protracted hearing before a differently constituted Industrial Tribunal, a hearing which could well last even longer than the 7 day hearing which ended in the decision which is the subject matter of this appeal.  Having regard to fading of memories over the years which have elapsed and the likely cross-examination which would take place at the fresh hearing as to what was said on the first hearing as opposed to what was said at the proposed rehearing, our fears that any such hearing would be even lengthier could well prove well-justified; indeed we further have to bear in mind that any such re-hearing could well be followed by an appeal to this Tribunal.  If there be any real prospect, as we believe there is, of this highly distressing and enormously expensive course being avoided by adoption of Mr Giffin's proposal on behalf of the Respondents, then we unanimously feel that it should be adopted. 

	Accordingly we order in the terms proposed by Mr Giffin in his first proposal, that the affidavit of Martin Walker dated 7 September 1994 be admitted in evidence.  Secondly that any affidavit in response on behalf of the Applicants be admitted, such affidavits to be delivered to the Respondents within 28 days subject to an extension by agreement between the parties or further order of the Court.  Thirdly that any notes of submissions by the Industrial Tribunal Chairman relevant to the matters raised in the said affidavit of Mr Walker be admitted in evidence.  It will be noted, I hope, that the word "comments" has been deleted from the Order which we propose to make.  We do not regard it as appropriate to seek the recollection of a very busy Chairman after so long a lapse of time.

	Finally, we would wish to say that on the resumed hearing of the appeal while it will not be possible I fear for the Chairman to be present, it would in our judgment, be entirely appropriate for the two lay members who have spent many hours considering these papers, to form the lay membership of the Tribunal at the resumed hearing.

	Liberty to apply.