Appeal No.	  EAT/639/99
EAT/987/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 October 2000
Judgment delivered on 14 December 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MRS MS B SWITZER
MR T C THOMAS CBE

MR R K DUGGAL	APPELLANT

CONNEX SOUTH EASTERN LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR J TODD
(of Counsel)
Instructed By:
Mr M Smith
Messrs Kennedys
Solicitors
Longbow House
14-20 Chiswell Street
London EC1Y 4TW	

	MR JUSTICE CHARLES:	

1	We have two appeals before us.  The Appellant in both is Mr Duggal and the Respondent in both is Connex South Eastern Ltd.

2	The first appeal is dated 15 March 1999 and is against a decision of an Employment Tribunal sitting at London (North) the Extended Reasons for which were sent to the parties on 10 February 1999.  That decision was that:

“(i)	The Applicant’s claim for victimisation fails
(ii)	The Applicant’s claim for direct discrimination under the provisions of the Race Relations Act 1976 fails
(iii)	The Applicant was unfairly dismissed.
(iv)	The chances of the Applicant’s employment being terminated in any event is put by the Tribunal at 75%.”

2	The second appeal is dated 16 August 1999 and is against a decision of the same Employment Tribunal sitting at London (North) the Extended Reasons for which were sent to the parties on 6 July 1999.  That decision was as follows:

“(1)	that the Tribunal do not order reinstatement of the Applicant
(2)	that the Tribunal orders the Respondents to pay [to] the Applicant compensation in the total sum of £5,179.65
(3)	a recoupment order is made.
As can be appreciated from this decision, the matters in respect of the remedy were generally complex, not helped by the distance from the effective date of termination of employment.  The Tribunal was greatly assisted by counsel for both parties in resolving these issues.”

3	The second appeal before us therefore relates to the remedies hearing in respect of the finding that the Applicant had been unfairly dismissed.

4	The two appeals that are now before us came before this Tribunal by way of preliminary hearing on 23 November 1999.  As a result of that hearing by an Order dated 23 November 1999 this Tribunal ordered that the appeals be allowed to proceed to a full hearing in accordance with the judgment of the Employment Appeal Tribunal.  That judgment was delivered on 23 November 1999 by His Honour Judge A. Wilkie QC, who was the Chairman of the relevant Tribunal.  In paragraph 3 of that judgment this Tribunal identified points which they considered to be reasonably arguable and the points which were to be the subject matter of the appeals.  Paragraph 3 of that judgment is in the following terms:

“3.	Arising out of his various submissions we have concluded that there are arguable points of appeal which should be aired at a full appeal hearing on certain issues.  Those issues are as follows:
(1)	His appeal against the decision of the Employment Tribunal to reduce his compensatory award by 75%.  That is the matter which is identified in paragraph 1(b) of his further and better particulars of the Notice of Appeal received by this tribunal on 30th April 1999. 
(2)	His appeal against the decision of the tribunal at the remedies hearing which limited the period of loss for the purposes of calculation of compensation to the period from the date of dismissal up to 6th August 1996.  That is the ground identified as ground 6(2) in his Notice of Appeal dated 16th August 1999.
(3)	The decision of the tribunal not to award any compensation in respect of loss of travel benefits set out in the second half of paragraph 11 of the tribunal’s reasons on remedies and identified by Mr Duggal in paragraph 6(i) of his Notice of Appeal dated 16th August 1999.  In respect of that particular ground of appeal we direct that there should be available to the Employment Appeal Tribunal which hears this appeal the document described in paragraph 11 of the tribunal decision as ‘his pro forma template for his loss claims’.”

In paragraph 4 of that judgment His Honour Judge Wilkie QC continued as follows:

“4  As to the remainder of the various grounds of appeal put forward by Mr Duggal in respect of these various decisions of the tribunal, we have concluded that they disclose no reasonably arguable case and accordingly they are dismissed at this stage. In deference to Mr Duggal’s efforts in setting out his case, we shortly summarise below the essential reasons for our decision.”

5	Mr Duggal sought a review of that decision of this Tribunal and leave to appeal against it.  

6	Both the application for a review and for leave to appeal were refused by Orders dated 28 February 2000.

7	Mr Duggal then sought leave to appeal against the Order of this Tribunal on the preliminary hearing from the Court of Appeal.  The purpose of that appeal was to enable him to advance grounds and arguments on these appeals which this Tribunal had dismissed on the preliminary hearing.  That application for leave to appeal was refused by the Court of Appeal (Mummery LJ) by an order dated 19 June 2000.

8	By a letter dated 19 September 2000 to this Tribunal Mr Duggal sought leave to add further grounds to his appeals.  His letter is in the following terms:

“I am writing concerning above referred appeals the hearing for which is due to take place on 27th October, 2000.  The grounds of appeal permitted for this hearing have been restricted by the EAT at their preliminary hearing.  The other grounds, which were dismissed at preliminary hearing stage, included my allegation of bias on the part of the ET besides other issues.  My further attempts to argue those grounds, first at the request for ‘Review’ to the EAT and then an application for leave to appeal to the CA have come to nothing. 
With the introduction of the Human Rights Act, 1998, on 2nd of October, under Section 7 of this Act, I intend to rely on this Act and thereby raise the issue of the breach of the Article 6(1) of the Convention.  In that, it is alleged that I have not had a ‘fair’ hearing of my complaints by an ‘impartial’ tribunal. 
Therefore, I am seeking leave to either amend my notice of appeal or in the alternative leave to file a fresh notice of appeal under the Human Rights Act, 1998, for the reasons stated in the above paragraph.  Could you kindly advice me for the appropriate course to take.
In the event of my application is granted, it may well be a case that the original estimation of ½day for the hearing may not be sufficient and perhaps a full day may be more suitable?”

9	That letter was copied to the Respondent by this Tribunal and its comment thereon was as follows:

“Thank you for your letter of 22nd September, with enclosure.
We must make the obvious point that this proposed amendment is put forward very late in the day although should the EAT allow it, the Respondent will be in a position to deal with it at the hearing on 27th October. 
However it seems to us that the amendment should not be allowed because the particular provision upon which the Appellant must rely (Section 7(1)(b) Human Rights Act) does not apply to acts that take place before the coming into force of this section.  As Section 7(1)(b) comes into force on 2nd October 2000, it seems to us the Appellant is unable to rely on it. 
We look forward to receiving the EAT’s decision in relation to the Appellant's application in due course, along with a copy of the index for the appeal bundle please.”

The hearing before us

10	Prior to the hearing both parties had provided skeleton arguments.  

11	As appears from the judgment of His Honour Judge Wilkie QC, Mr Duggal had prepared careful written submissions before that hearing.  The same applied in respect of the hearing before us.  Immediately the hearing was called on Mr Duggal provided us with further written submissions running to 21 paragraphs with 2 short annexes.  He invited us to rise to read those submissions.  Before we did so we informed Mr Duggal that after we had finished reading them, we would return to hear any additional oral submissions he wished to make on his application made by his letter dated 19 September 2000.  We also indicated to him that if we were against him on his application to add further grounds we would then proceed to hear the appeal on the grounds identified in the judgment of His Honour Judge Wilkie QC.  We asked Mr Duggal to identify any points in his written submissions that were specifically directed to those points.  He attempted to do so but was, at that stage, overcome by emotion.  

12	After we had read Mr Duggal’s further written submissions we indicated to the parties that we would deal with these appeals in the following way:

(a)	we would reserve judgment,

(b)	we would hear Mr Duggal on his application to add further grounds and on the grounds identified by His Honour Judge Wilkie QC, 

(c)	we would hear the Respondent on those points, 

(d)	we would hear Mr Duggal in reply, and

(e)	if in our reserved judgment we were to find in favour of Mr Duggal on his application to add further grounds, we would set another hearing date to enable him to expand on those grounds orally and for the Respondent to deal with them.

13	On his application to add further grounds Mr Duggal’s oral submissions were very brief. They were in effect to refer us to his written submissions.  We again asked him to identify any particular points he wished to raise in respect of the grounds identified by HH Judge Wilkie QC.  In response he indicated that he had no discrete points as to those grounds and the grounds upon which he wished to argue those points were the more general grounds he wished to add based on The Human Rights Act 1998 and the European Convention on Human Rights (the Convention) and, in particular, Articles 6 and 14 thereof that (quoting his letter dated 19 September 2000) he had “not had a “fair” hearing of my complaints by an “impartial” tribunal”.

14	Although trespassing outside the framework we had set for the hearing after we had read Mr Duggal’s further written submissions, we asked him to identify the main points in respect of his allegations of “unfairness” and “impartiality” that he wanted to advance by reference to the Human Rights Act.  Helpfully he did so.  Although it is apparent that Mr Duggal can become upset when discussing issues relating to this case, he was able to put his points to us clearly and with conviction.  It is very clear that he has invested considerable time and emotion in this case.  The main points he made to us were as follows:

(1)	In respect of his claim for unfair dismissal the Employment Tribunal had asked itself the wrong question and had made no mention of what is now section 98(4) of the Employment Rights Act (and was then section 57(3) of the Employment Protection (Consolidation) Act 1978).  In this context he said that in addition to a failure to refer to the relevant statutory provisions the Employment Tribunal erred in law because there was no evidence upon which it could found its conclusion as to the reason for his dismissal and it was wrong for the Employment Tribunal to infer what that reason was.

(2)	In respect of his claim for discrimination by way of victimisation, he said that the Employment Tribunal erred in law by not asking itself the correct statutory question and further or alternatively, in not explaining how it had reached its conclusion by reference to that statutory question.  He also said that the Employment Tribunal was manifestly wrong to say that something that had occurred in 1986 was not relevant when it had allowed him to base his claim on matters that were outside the three month time limit set by the Act.

(3)	Mr Duggal made a number of further points.  In respect of some of these he placed blame on the Counsel who had represented him before the Employment Tribunal rather than on the Employment Tribunal itself.  However, we shall treat all the complaints as ones made against the Employment Tribunal as well.  He identified the following key points:
(i)	A point relating to documents and disclosure. He asserted that the Respondent did not comply with the order for discovery and the Employment Tribunal was wrong to regard his application for further discovery as a “fishing expedition”.  In particular he submitted that all documents relating to the staff at the Charing Cross ticket office were not disclosed, the files produced at the hearing were not sufficient and the computerised attendance sheets should have been produced. Mr Duggal asserted that the lack of full disclosure meant there was not (and could not be) a proper and fair hearing on the issues of fact and the Employment Tribunal regarded the Respondent’s case with favour on this important issue.
(ii)	A point relating to what he asserts was important oral evidence.  He submitted that there was no reference in the Extended Reasons to the evidence of two independent witnesses who he had called (a Mr Hamid and a Mr Farren) who, he said, were long-serving employees who gave evidence to the effect that they had never known an employee with the length of service that Mr Duggal had being dismissed on the ground of sickness.  Mr Duggal says that this evidence was powerful evidence in support of his claim that there was direct discrimination and thus that the Employment Tribunal should have found this to be the case by inference or otherwise.  He said that the fact that this evidence was not mentioned in the Extended Reasons was an error of law.  His argument was that this evidence made the inference of direct race discrimination inevitable.  
(iii)	A point relating to perjury.  He submitted that he was a victim of injustice in respect of the conclusion of the Employment Tribunal that the comparators, or control group, he was advancing were not appropriate comparators because if the Employment Tribunal had taken them into account they would not have been comparing like with like.  He said that this conclusion of the Employment Tribunal was based on lies and that he was wrongly made out by the Respondent to be a malingerer.  In this respect his position was that the Employment Tribunal had reached its conclusion on evidence that was untrue and that this was unfair. 
 
(4)	Mr Duggal also said that this Tribunal and the Court of Appeal had erred in not allowing him to pursue the claims made in his original Notices of Appeal based on the points referred to in paragraph (3) above and more generally his allegations of bias or impartiality therein.

15	As to the first point made by Mr Duggal it has to be remembered that the Employment Tribunal found that he had been unfairly dismissed.  As we see it therefore his argument is that the errors he asserts were made as to the identification of the reason for his dismissal have a  “knock on” effect in respect of the conclusions of the Employment Tribunal as to the 75% reduction, his claim for direct racial discrimination and his claim for discrimination by way of victimisation.

16	In his submissions Counsel for the Respondent referred us in particular to paragraphs 6, 7, 8 and 10 of the judgment of his HH Judge Wilkie QC and pointed out (in our judgment correctly) that in those paragraphs HH Judge Wilkie QC deals with the points we have referred to in paragraph 14 hereof.

17	Paragraphs 6, 7, 8 and 10 of the judgment of HH Judge Wilkie QC are in the following terms:

“6  As to his appeal against the tribunal’s substantive decision, we are constrained to record that in our judgment the decision of the Employment Tribunal was a long and carefully constructed judgment which dealt comprehensively with the history of the matter and, save for the matters referred to above, came to entirely proper conclusions both as a matter of legal analysis and as a matter of finding facts on the basis of the evidence which was placed before it.  It is worth commenting that the tribunal found in Mr Duggal’s favour in concluding that he had been unfairly dismissed.  Mr Duggal, notwithstanding that finding, sought by his appeal, inter alia, to challenge the conclusion of the tribunal that the reason for dismissal was one of capability.  In our judgment that was an entirely correct legal construction of the facts found by the tribunal, namely that the reason for his dismissal concerned his history of absence through sickness which was governed by the respondent’s managing for absence procedure.  Thus there is, in our judgment, no arguable point of law in this respect.
7   Under the heading of perversity, Mr Duggal has raised a range of issues referring to the tribunal’s treatment of comparators, the question of availability of documents, the tribunal’s conclusion in respect of victimisation, the question of the raising an inference from primary facts, and the reference to ACAS and NCRE Codes of Practice.  We have considered each of these aspects of the matter carefully and, in particular, have considered his detailed submissions on these matters which are contained in his documentation in support of his application for a review.  On each of these issues we are satisfied that the tribunal made no error of  law nor did they make decisions of fact which were not properly open to them  in the light of the evidence.  It seems to us that in respect of those issues Mr Duggal, as is his right, simply disagrees with the findings made by the tribunal.  That, however, is not sufficient to give rise to an arguable appeal and that is what we find.
8  Also under the heading of perversity Mr Duggal raises points which the tribunal took on board in the sense that they found that he was unfairly dismissed.  We have already indicated that there are points in relation to that finding which are worthy of ventilation at a full hearing.  However, in so far as he links those criticisms to his allegations of discrimination and victimisation, again, in our judgment, the tribunal made findings which were open to it on the evidence and made no errors of law in the application of the primary facts as found by them.  Accordingly, we find that there is no reasonably arguable case to advance to a full hearing in those respects.
10  Before us he sought to argue that the evidence of Mr Smith was manifestly fraudulent and that the tribunal, on the basis of the documentation before it, ought to have identified this and dealt with the case accordingly.  In our judgment, having looked at the material placed before us in support of this contention, the point is simply not made out nor is it, in our judgment, seriously arguable.  Accordingly on this basis too, we say that there is no reasonably arguable point of appeal.”

We repeat that in paragraph 4 of his judgment, His Honour Judge Wilkie QC made it clear that in respect of all the various grounds of appeal put forward by Mr Duggal, save for those identified by His Honour Judge Wilkie QC in paragraph 3 of his judgment, this Tribunal concluded that they did not disclose any reasonably arguable case and accordingly they were dismissed.

Mr Duggal’s application to add new grounds of appeal

18	We refuse this application.

19	As Mr Duggal correctly recognises in his letter dated 19 January 2000 his purpose in seeking to add new grounds based on the Human Rights Act 1998 and the Convention is to enable him to argue grounds which have been dismissed by this Tribunal on the Preliminary Hearing and the Court of Appeal (by refusing him permission to appeal the order made on the Preliminary Hearing).  This is so whether those grounds are described as bias, procedural irregularity unfairness, or perversity. It is also the case whether they are treated as part of his grounds or arguments in respect of the matters that this Tribunal identified as being arguable and allowed to go forward to a full appeal hearing, or as separate grounds.

20	In our judgment the point that it has been held by this Tribunal and the Court of Appeal (by refusing permission to appeal) that Mr Duggal cannot pursue on this appeal the grounds he now seeks to re-introduce by reference to, and in reliance upon, the Human Rights Act 1998 and the Convention is fatal to his application.  This is because these grounds of appeal have already been decided against Mr Duggal by this Tribunal and the Court of Appeal and what he is trying to do is to introduce new arguments in respect of his old grounds of appeal rather than new grounds that have not already been advanced and dealt with. However having regard to the care and effort put in by Mr Duggal in making this application we shall comment further.

21	The following comments are on the hypothesis (which is not the case) that Mr Duggal had not raised in his notices of appeal in respect of either (i) the matters this Tribunal allowed to proceed to a full hearing, or (ii) other matters the grounds he now wishes to argue by reference to, and in reliance upon, the Human Rights Act 1998 and which he therefore asserts were not available to him before October 2000.

22	On the above hypothesis we would refuse Mr Duggal’s application because:
(A)	In our judgment the argument advanced by the Respondent in its letter referred to in paragraph 9 above is correct.  To advance his new arguments Mr Duggal would rely on s. 7(1)(b) and s. 7(6) which defines the legal proceedings referred to in s. 7(1)(b). Section 22(4) makes specific and limited provision as to the retrospective effect of the Human Rights Act 1998 in relation to s. 7(1)(b).  In our judgment:
(i)	the act or acts that Mr Duggal wishes to argue are in breach of his Convention Rights took place at the times of the hearings before the Employment Tribunal and therefore before the coming into force of s. 7(1)(b), and 
(ii)	this has the consequence that the part of s. 22(4) that provides for retrospective effect does not apply because the proceedings were not brought by, or at the instigation of, a public authority.  
	In his written submissions Mr Duggal referred us to extracts from the speeches of Lord Cooke and Lord Hobhouse in Reg v Director of Public Prosecutions ex parte Kebilene [1999] UKHL 43 (28 October 1999) and [1999] 3 WLR 972.  In our judgment those passages do not support an argument that the Human Rights Act 1998 has retrospective effect in this case.  This is because the Kebilene case was concerned with proceedings brought by a public authority as to which s. 22(4) does provide that s. 7(1)(b) is to have a retrospective effect.  As we have said, here the proceedings were not brought by, or at the instigation of, a public authority and therefore what Lord Hobhouse refers to as “the only element of retrospectivity which s 22(4) introduces” does not exist.  We also note that a little later in his speech Lord Hobhouse says: “Neither section 6 or section 7 is retrospective” (see [1999] 3 WLR at 1008G).  We add that we do not accept an argument (which was not raised by Mr Duggal) that because:
(i)	Convention Rights existed before the coming into effect of the Human Rights Act and at that time after exhausting domestic remedies a litigant could seek to challenge the fairness of a trial or hearing in the European Court of Human Rights on the basis of Convention Rights, and further or alternatively 
(ii)	it would be unlawful for this Tribunal as a public authority to act in a way that is incompatible with a Convention Right,
 	in this appeal we should assess questions of fairness and bias or impartiality in respect of the hearings before the Employment Tribunal by applying Articles of the Convention as part of our law. In our judgment, and even though the relevant issues can be said to relate to procedural as opposed to substantive matters, this argument is giving a retrospective effect to the Human Rights Act 1998 which is contrary to the general presumption against retrospectivity and the specific provisions of s. 22 thereof.  It follows that in our judgment on an appeal to this Tribunal on grounds that an Employment Tribunal has acted unfairly the “act” referred to in s. 22(4) is the hearing before the Employment Tribunal and not the hearing of the appeal before us. Naturally this conclusion does not mean that in assessing what was fair and whether there was bias or impartiality we could not take the Convention, and decisions in respect of it, into account in the manner that this was done before the Human Rights Act 1998 came into effect.
(B)	Alternatively and on the basis that the above conclusion is wrong and in determining issues of bias or impartiality and unfairness at the Employment Tribunal we should apply Convention Rights and therefore the effect and application of the Human Rights Act 1998 is equivalent to a decision of the House of Lords that is declaratory of what the law has always been (albeit the Court if Appeal have earlier held it to be different) in our judgment we would then have a discretion to determine whether or not Mr Duggal should be allowed to raise the points he now wishes to argue (see Setiya v East Yorkshire Health Authority[1995] IRLR 348) and in the exercise thereof we would refuse to allow him to do so. 

23	The discretion referred to in paragraph 22(B) would fall to be exercised on the basis that the arguments are based on changes in the law in the sense that at the times of the hearings before the Employment Tribunal the law was thought to be different having regard to authority binding on the Employment Tribunal, this Tribunal and the Court of Appeal. In exercising that discretion we would have to have regard to all the circumstances of the case which would include an assessment of the injustice which each side may suffer.  One of those circumstances would be the law on bias or impartiality and fairness as it was thought to be at the times of the hearings before the Employment Tribunal and the arguments that would have been open to Mr Duggal having regard thereto (as to which see paragraphs 24 and 25 hereof). Another would be the considerations in favour of finality and certainty.  In our judgment having particular regard to those factors in all the circumstances of this case an extension of time to permit Mr Duggal to advance the grounds referred to in his letter dated 19 September 2000 should be refused.

24	As is pointed out in paragraph 17 of the judgment in Locabail (UK) Ltd v Bayfield Properties Ltd & Others [2000] 1 AER 65 it is likely that in the overwhelming majority of cases the test for bias or impartiality established in this country (i.e. the real danger or possibility test) would not produce a different result to the test which it is said in that paragraph of the Locabail judgment may be more closely in harmony with the jurisprudence of the ECHR (i.e. the reasonable suspicion or reasonable apprehension test).  Equally it has always been a fundamental principle of English law that a trial should be fair and the judges impartial.

25	Mr Duggal has not pointed to any relevant and significant difference for the purposes of his arguments and grounds of appeal based on fairness and bias or impartiality between the position under the Convention and that which existed before it became part of our domestic law pursuant to the Human Rights Act 1998. This is not due to any error or fault of Mr Duggal but arises from the fact that in our view there is no such difference. This is relevant to the exercise of the discretion referred to in paragraphs 22(B) and 23 hereof.  

26	It would also be relevant if notwithstanding the fact that this Tribunal (and the Court of Appeal) have already dealt with those grounds of appeal we nonetheless had a discretion to allow Mr Duggal to advance them.  In our view we do not have such a discretion but if we are wrong and we do because, for example, there is not a complete overlap between the grounds already dealt with and the grounds that Mr Duggal seeks to argue we would refuse to exercise that discretion in favour of Mr Duggal for equivalent reasons to those set out in paragraph 23 hereof.

27	As appears above the points we have made in paragraphs 22, 23 and 26 hereof are made on a hypothetical basis and therefore have an air of unreality or artificiality.  In our judgment the reality is that Mr Duggal has already raised the grounds that he now seeks to reargue by reference to the Human Rights Act 1998 and the Convention, and they have already been dealt with by this Tribunal and the Court of Appeal.

28	We add that having considered those grounds in the light of the written and oral submissions made to us by Mr Duggal we, like the Tribunal at the preliminary hearing, are of the view that they do not give rise to reasonably arguable grounds of appeal.  Further we are of this view if the matters raised by Mr Duggal were considered on the basis that at all relevant times the Convention had formed part of our domestic law.

29	Again in agreement with the Tribunal at the preliminary hearing in our judgment Mr Duggal’s arguments on fairness and bias or impartiality are founded on his view (which he is entitled to hold) that the Employment Tribunal reached wrong decisions (i) on procedural issues (e.g. as to discovery), (ii) as to the facts and their relevance or impact and (iii) generally on Mr Duggal’s claims.  However even if Mr Duggal is right as to that it does not follow that there was not a fair hearing, or that there was bias or impartiality.

30	Finally on this aspect of the case we mention that Mr Duggal very properly made it clear that he was not asserting subjective or conscious bias.

The points identified by HH Judge Wilkie QC on the Preliminary Hearing

31	The 75% reduction.  We agree with the Respondent that paragraph 12 of the Extended Reasons shows that this was not a finding as to the extent to which the Appellant contributed to his dismissal but a finding as to the chances of the Appellant’s employment being terminated in any event.  In our judgment the Employment Tribunal approached this issue correctly, had evidence upon which it could base this finding which was within the range of decisions open to it and cannot be said to be perverse.

32	The period of the loss.  The Employment Tribunal limited the period of loss to 6 August 1996.  Again in our judgment it approached this issue correctly and had evidence upon which it could base this finding.  It cannot be said to be perverse.

33	Travel benefits. We accept the point made by Counsel for the Respondent (which was not challenged by Mr Duggal before us) that this head of loss was not accepted and Mr Duggal, who was represented by Counsel before the Employment Tribunal, effectively abandoned this point although it was included in his “schedule of loss” by not leading any evidence on it, not asking the Respondent’s witnesses any questions about it and not making submissions on it. In those circumstances we agree that it was not appropriate for the Respondent’s Counsel to cross examine on the point.  In any event to allow the point to be taken now would involve the introduction of new evidence and in our judgment Mr Duggal could not satisfy the test that is applied by this Tribunal to that issue (see Wileman v Minilec Engineering Ltd [1988] IRLR 144).

Conclusion

34	It follows that we dismiss the appeal.

A Final Word

35	As we have mentioned above Mr Duggal has invested a considerable amount of emotion, time and energy in these proceedings and his appeals. It is clear that he is upset by them and feels that the Employment Tribunal, this Tribunal and the Court of Appeal reached conclusions that are wrong.  We hope that he will now have the courage and good sense to put these proceedings behind him and concentrate on other matters.  As he told us if he does not do this his health may well suffer.