Appeal No.	EAT/1365/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 1998

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MR R N STRAKER

MR A MURGAI	APPELLANT

HOME OFFICE IMMIGRATION & NATIONALITY DIRECTORATE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR C RAWLINGS
(of Counsel)
Messrs Ashok Patel & Co
Solicitors
257 Balham High Road
London
SW17 7BD	

	JUDGE PETER CLARK:	This is a restored preliminary hearing in the appeal of Mr Murgai against a decision of the London (South) Industrial Tribunal, sitting over four days with a further day in Chambers, dismissing his complaints of unlawful racial discrimination against his employer, the Home Office. Extended reasons for that decision were promulgated on 21st October 1997.

	Having considered the draft re-amended Notice of Appeal, skeleton argument and oral submissions of Mr Rawlings on behalf of the appellant, based in part on the affidavit and exhibits sworn by the appellant on 22nd January 1998, together with the decision of the Industrial Tribunal and its full reasons, we have reached the following conclusions at this preliminary hearing stage:

(1)	The grounds of appeal relating to the Gor Report, that is grounds (1), (2), (8), (9) and (10) of the draft re-amended Notice of Appeal ought to proceed to a full hearing. In essence, it is submitted that in paragraph 64 of their reasons the Industrial Tribunal reached a material finding of fact that “Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, making him ‘fitted for promotion’ which view was endorsed by a promotion Board which did indeed promote Mr Gor”. We have looked, de bene esse, at documents which the appellant seeks to adduce before the Employment Appeal Tribunal which were not in evidence before the Industrial Tribunal, which purport to show that Mr Gor was promoted without interview on or before 18th November 1994, and that his last ASR was completed in October 1994 by managers other than Mr Sims. That may be an incomplete and misleading picture; there may be good grounds for the respondent objecting to the admissibility of that material before the Appeal Tribunal; they may wish to adduce further evidence in response; they may successfully argue that the finding is not material to this part of the Industrial Tribunal’s decision. Suffice it to say that we just do not know at the ex parte stage, and in these circumstances justice requires that these grounds of appeal proceed to a full inter partes hearing.

(2)	We dismiss the remaining grounds of appeal in the following circumstances:

(a)	German Insult (grounds (4) and (11)).
	In our view the Industrial Tribunal was entitled to form its own judgment as to what German word was used by Mr Sims from the tape recording made of the relevant interview by the appellant; and to accept Mr Sims account of what he said in German; what that expression meant in English and the context in which it was said at the meeting of 5th January 1995.

(b)	Witness statements (Ground (7))
	We have considered the interlocutory order made by a Chairman, Mr Meeran, on 19th August 1996 in these proceedings. There was no order for exchange of witness statements. At the hearing the respondent had prepared in advance witness statements; those were read out by the respondent’s witnesses as they gave evidence without objection by the appellant’s representative, Mr Narayan. No error of law on the part of the tribunal is here made out. However, the lack of prior disclosure to witness statements may be relevant to the question as to whether the appellant will be permitted at the full appeal hearing to adduce further evidence in respect of those grounds of appeal which we have allowed to proceed.

(c)	The 13th September 1996 letter declaring the Sims’ ASR on the appellant void (Grounds (3) and (5))
	These grounds have not been actively pursued by Mr Rawlings. In our judgment they raise no arguable point of law.

(d)	(Ground (6))
	This has not been pursued by way of affidavit evidence, nor in submission.

	JUDGE PETER CLARK:	Following our judgment on which grounds we have permitted to through to a full hearing, there are certain consequential directions which we also make.

	First, that the appellant be given leave to amend the Notice of Appeal in the form of the final re-amended draft, but that all grounds of appeal save for grounds (1), (2), (8), (9) and (10) will be deleted.

	Secondly, we shall list this case for a one day hearing, Category B. Skeleton arguments to be exchanged and copies lodged with the Employment Appeal Tribunal not less than 14 days before the date fixed for the hearing.

	Thirdly, the Chairman of the Industrial Tribunal, Mr Carstairs, should be asked to comment on grounds (1) and (2) of the re-amended Notice of Appeal by reference to his Note of the Evidence given by Mr Sims and any other evidence which may be relevant to those grounds of appeal.

	Fourthly, as to the appellant’s application to adduce further evidence in the form of the documents appearing at pages 29 to 44 of his affidavit and exhibit sworn on 22nd January 1998, that application should be renewed at the full appeal hearing.

	Finally, Mr Rawlings has applied for leave to appeal against our dismissing grounds (4) and (11) of the re-amended Notice of Appeal. We refuse such application.