Appeal No.	 EAT/219/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
LORD GLADWIN OF CLEE CBE JP
MR D J HODGKINS CB

DR A ADOKO	APPELLANT

THE LAW SOCIETY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against a decision of an Industrial Tribunal whose decision was reduced to writing and the sent to the parties on 19th December 1996. 

	The purpose of this preliminary hearing is to determine whether Dr Adoko has demonstrated a reasonably arguable point of law which is fit for hearing at a full hearing of the Employment Appeal Tribunal.

	The decision of the Industrial Tribunal was that Dr Adoko’s Originating Application should be struck out on the grounds that it was frivolous and having no prospect of success.

	The complaint in question was a complaint that the Law Society had committed an act of victimisation against him contrary to s. 2 of the Race Relations Act 1976 by deliberately delaying his application to become a solicitor.

	Dr Adoko has had a distinguished legal practice in East Africa and took up legal practice in England in 1981. He applied for re-admission as a solicitor. He commenced proceedings in the Industrial Tribunal in December 1993 alleging that the Law Society’s requirements for admission, namely eight years experience in the practice of law in England, was indirectly discriminatory against persons from other countries. In due course that allegation was, as the Industrial Tribunal record, admitted by the Law Society. 

	During the course of that litigation  Dr Adoko had obtained discovery of details of large numbers of persons who had applied under the same regulations for admission as a solicitor. He published parts of that material because he took the view that it was right to do so.  The Law Society were concerned that publication of material disclosed in the course of litigation was being used for a purpose outwith the purpose of the discovery provisions. In due course they made a complaint against him to the Bar Council that he had been guilty of professional misconduct by publishing the material in that way. The Bar Council commenced enquiries into that complaint. Meanwhile, the Law Society decided to defer any further consideration of his application to be admitted to the role of solicitor pending the outcome of those disciplinary proceedings. It was the Law Society’s stand that it should take into account matters of professional misconduct because they must take into account the character and suitability of any applicant to be a solicitor.

	The protected act on which Dr Adoko was relying in his complaint of victimisation was the making by him of his previous complaint of race discrimination. There can be no doubt that that would constitute the doing of a protected act.

	As we understand it, the act of victimisation relied upon was the reporting of Dr Adoko to the Bar Council which had the effect of delaying his application. The applicant does not dispute that he was party to the publication of this material, but in his complaint to the Industrial Tribunal he was saying that having done the protected act, the Law Society were reporting him to the Bar Council not because he had, in their judgment, been guilty of professional misconduct, but because he had had the temerity to make complaints against them of race discrimination.

	It was against that background that the tribunal came to consider the question.

	During the course of that hearing much time and attention was devoted to the question as to whether Dr Adoko had done anything wrong by publishing the material in the way that he had admitted. 

	It seems to us to be arguable (and, therefore, sufficient for this matter to go to a full hearing), that the approach of the Industrial Tribunal in this matter has not been entirely correct. The question is not so much whether Dr Adoko was entitled to publish the material, but what was the reason why the Law Society reported him to the Bar Council. The question then arises as to whether an Industrial Tribunal in the exercise of its rather exceptional powers to dismiss applications which are frivolous, was right to say that it was completely unarguable that whatever the rights or wrongs of publication, the Law Society were motivated on racial grounds in reporting him for alleged professional misconduct. Obviously, if every responsible body would appreciate that Dr Adoko had done nothing wrong by publishing the material, that might be some basis on which one could infer the Law Society had been acting improperly. But it seems to us that although there is some linkage between the question as to whether he was acting improperly and the complaint which he was making to the Industrial Tribunal, it would be open to an Industrial Tribunal to conclude that even if the Law Society could legitimately have referred the matter to the professional body, that was not the reason why it had done so.

	In those limited circumstances, we think that we should not dismiss this appeal at this stage, but rather that we should invite submissions from the respondent in this case and that the matter should proceed to a full hearing on the point at issue which I have sought to identify. I should make it plain of course that this is not going to provide any kind of forum for the airing of other grievances which we understand Dr Adoko may have. We will confine our attention to dealing with the decision that I have referred to and whether it is arguably wrong for the reason that I have indicated.

	Dr Adoko did not attend this hearing. He had invited us to adjourn the case. He had previously asked us to adjourn the matter when it had come before us before, that application for an adjournment was granted. The basis upon which that application had been made was that there was some prospect that there would be a settlement between the various parties. 

	On this occasion, having fixed the date for hearing, Dr Adoko indicated that he would be occupied elsewhere in other court proceedings on the day in question. Accordingly, the Registrar respectfully invited him to provide us with written confirmation as to the nature of those proceedings by way of a listing of the case for that day in question. He did not respond to that, but has sought to say that we have agreed to postpone the case. That is a misunderstanding on his part if he genuinely believes that we have postponed the case. 

	We are used to dealing with appeals where parties ask us to take into account written submissions, and we have had the benefit of extensive written submissions from Dr Adoko. On the basis of those submissions and on the basis of the decision of the Industrial Tribunal itself, we felt happy to deal with this matter despite his absence, for which we have been provided with no satisfactory explanation. 

	Accordingly, the decision of this court is that the matter should proceed to a full hearing on the issue that I have identified in this judgment. This should be listed as a Category B case and will be heard by myself as President. The estimate of time for hearing the appeal is half a day. Notes of Evidence are not required. The Notice of Appeal will not require to be amended.