Appeal No.	EAT/1257/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 May 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS T A MARSLAND
MR J A SCOULLER

MISS D AIKENS	APPELLANT

SHUBETTE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M PANESAR
(OF COUNSEL)
(Instructed by)
Commission for Racial Equality
Maybrook House
(5th flr) 40 Blackfriars Street
Manchester M3 2EG	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this Hearing is to determine whether there is an arguable point of law in an Appeal which Dawn Aiken wishes to make against the decision of an Employment Tribunal which dismissed her various complaints.

1	The principal ground of the Appeal arises from a remark which Mr Panesar of Counsel says was made during the course of his closing submissions, which if made, demonstrates that the Chairman of the Tribunal was not prepared to regard somebody such as Mr Panesar with his ethnic origin as belonging to this country and being part of the legal system.  If such a remark were made it would arguably demonstrate that the Chairman was not fit to be sitting on a Race Discrimination complaint and in those circumstances, the Employment Appeal Tribunal might consider it appropriate to remit the matter for a hearing before a different Tribunal.  It is Mr Panesar’s second submission, that effectively, the Tribunal Chairman, who was responsible for writing the decision, has concentrated to a significant extent on an attack against him personally, in his capacity as Counsel.

2	He tells us that there are 14 paragraphs of this decision which effectively contain criticisms of him out of a total number of paragraphs of 47.  Thirdly, he says that whether because of the attitude taken by the Tribunal or otherwise, they have not properly dealt with the evidence which was given or the gravamen of the complaint made by Dawn Aikens about the way she was treated by comparison with the named comparator in relation to a particular incident.  We regard those points as being arguable.  The matter must go for a full hearing.

3	The Respondents have been sent or should have been sent the affidavit material in support of the claim of bias and should have been invited to make their comments on the allegation.  They have not made any contribution on that issue.  I would like to indicate in this Judgment that we would be greatly assisted if they could provide in affidavit form, whether from Counsel who was present or from the solicitor or both, their recollection of the matters to which reference is made in para 3 of the Affidavit sworn by Maliha Rahman from the Commission for Racial Equality.  I will not order them to do so at this time, because they are not here.

4	This is not a case, I think, where notes of evidence are required as at present advised.  It is an important matter, as all discrimination cases are, and will be listed as Category A.  I would estimate at the present time that the case would take between ½ day and whole day, so we ought to allow a whole day for this Appeal.  It may turn out to be shorter.  There are no further directions that I can find at the present time unless Mr Panesar has any to suggest.