Appeal No. EAT/325/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21 April 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R H PHIPPS

	MR R TODD

LINCOLNSHIRE MARKETING ORGANISATION (POTATOES) LTD	APPELLANTS

MR M L TARRAN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR H HUGHES
(INDUSTRIAL
RELATIONS
CONSULTANT)
Hawkins Management
PO Box 525
Bedford MK44 1YT

	

	JUDGE HULL QC:      In this case the decision of the Industrial Tribunal was promulgated on 19 February 1993 and a Notice of Appeal was given on 19 March.  Grounds One and Two, signed by a Miss Milner, made certain complaints about which we do not propose to say anything further at the moment.  On 16 November, this Employment Appeal Tribunal ordered that the appeal be adjourned and requested the Chairman of the Industrial Tribunal to provide a copy of his Notes of Evidence: it was also ordered that the appeal should continue to be listed as a Preliminary Hearing and that the Appellants should if so advised have leave to amend the Notice of Appeal.

	The Chairman has now kindly provided his Notes, and the Appellants have amended their Notice of Appeal by adding "Ground Three", complaining of alleged misconduct by the Chairman at the hearing on 3 February 1993.

	We must say that this new "Ground Three" appears to us, as at present advised, to be without any foundation at all, but these are the new grounds of appeal: the alleged refusal of the Chairman of the Industrial Tribunal to allow the Appellants' representative to make an opening address, make a closing address, and call such witnesses as she felt necessary; and and that this constituted a denial of natural justice.  It has also been said to us this morning by Mr Hughes that in addition the advocate, Miss Milner, was refused permission to cross-examine and was prevented from cross-examining.  

	It is a matter of comment that although the original Notice of Appeal with the first two grounds was received by this Tribunal on the 19 March 1993, and signed by Miss Milner, it was not until March of this year that there were received these very serious allegations, about which Miss Milner of course had known for more than a year, making these allegations against the Chairman.  Indeed it is probably not right to say that it is simply against the Chairman, because the Chairman was sitting with two industrial members, and they were present and would expect to take a part in the hearing and as one well knows if they thought the Chairman was doing something wrong, would not hesitate to tell him so.

	What Mr Hughes has said to us appears to vacillate (he of course has Miss Milner sitting behind him) between saying that the Chairman downright refused to allow these matters, or alternatively that he made suggestions that perhaps there was no need to cross-examine or that there was no need to make an opening speech, or whatever it might be.  However that may be, these are serious allegations.  However belatedly they are made we think that the proper course is for such serious allegations to be properly investigated.  All that can happen at this stage is that these allegations must be put on affidavit, that is say Miss Milner must depose to exactly what happened, and so must any other person who is relied upon as supporting these allegations.  They are like other serious allegations against the Chairman, such as bias, and they must be put in evidence.  

	These matters must be submitted at once, the Notice of Appeal together with the affidavits, to the learned Chairman and his industrial members, so that they can say (if they can after this long lapse of time), exactly what happened.  

	It is sought to excuse the lateness of this complaint on the basis that the notes of evidence were not available and it is pointed out that the Notes of Evidence contain no record apparently of an opening speech, or a closing speech, and that there are only brief records of cross-examination, if any.  But one would not expect to find, in Notes of Evidence, a precis of an opening speech, or a closing speech, and of course the Chairman is not obliged to note everything that passes, particularly in cross-examination which may be directed to credit or something of that sort, and not go directly to the issues.  Miss Milner must have known all about these matters since February last year, and she had no need whatever to wait for the Notes of Evidence before complaining about them.

	However that may be, we ask the Chairman to comment on these allegations when he receives them, and of course his industrial members if they can help.  It may be that recollections, even after this time, will enable them to say something about this.  

	In view of the fact that Mr Hughes has attended before us and put these matters in front us, and Miss Milner has also instructed Mr Hughes as to what happened (she was there and he was not) we think this matter should come back before this Employment Appeal Tribunal constituted in the same way, that is to say with my two colleagues and myself sitting, if that is possible.  It is to remain listed as a preliminary hearing.