Appeal No.	  EAT/320/99
		& EAT/440/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR R SANDERSON OBE
MRS R A VICKERS

MR J SILVA	APPELLANT

SENSE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS S S H LANE
(Representative)

		

	MR JUSTICE HOLLAND:	By way of an IT1 dated 29 December 1997, Mr Silva brought a complaint against his employers, SENSE, alleging unfair dismissal, unlawful racial discrimination, direct discrimination and victimisation.  All that arose out of an employment as a social tutor with that organisation on and between 5 April 1994 and 7 November 1997.  

1	In the event the matter came for hearing before an Employment Tribunal held at Stratford.  The hearing itself occupied a substantial amount of time, with hearings on the 29 and 30 June, 30 October and 2 November 1998.  The unanimous decision of the Tribunal was that the Applicant had been unfairly dismissed but that the dismissal was not due to racial discrimination nor to victimisation.  It further decided that there should be a remedies hearing on 11 January 1999.  

2	Against their decision there is an appeal to this Tribunal, that appeal being listed before us this morning by way of a preliminary hearing.  As we explained to the Appellant, the function of this hearing is as follows; it is for this Tribunal this morning to discern, if such there be, a point of law arising out of the decision of the Employment Tribunal such as would justify an inter partes hearing, that is, a hearing at which the Respondents are represented.  If we can discern such a point it is our duty to say so, the matter is then adjourned and that further hearing takes place so that this Tribunal has the benefit of argument directed from both sides.  If on the other hand we cannot find a point of law, then again it is our duty to say so with the consequence that the appeal is thereupon to be dismissed.  Plainly there is nothing in the public interest or in the interest of the parties that is to be gained by an inter partes hearing when there is nothing upon which to debate.

3	Turning then to the way in which the appeal is presented, it is essentially to the effect that in various respects the findings of the Tribunal were perverse, that is they were findings that no reasonable Tribunal could make on the evidence presented to it.  Before coming to our ruling on this case, it is immediately necessary to note a particular feature of the hearing before the Employment Tribunal and to a certain extent the hearing before us.  At the Tribunal, and before us, Mr Silva was represented by his sister Mrs Lane.  We gather that Mrs Lane is a distinguished academic lawyer who has undeniably devoted a considerable amount of energy and expertise to her brother’s case.  That said, one unfortunate consequence of her style of representation is that an enormous amount of material is thrust upon the respective Tribunals, whether it is the Employment Tribunal or this Tribunal, with the result that it becomes genuinely difficult to distinguish the wood from the trees.  Thus, looking at the Employment Tribunal we learn that the documentation extended to over 1,000 pages and the hearing was very prolonged, and, although we have not had to deal with it this morning, there was for example an issue about whether or no she should be permitted to put over 300 questions by way of re-examination.  

4	Turning then to the appeal before us, we note that the Notice of Appeal itself extends for over 10 pages and the Skeleton Argument extends for a like length.  Given that in the midst of all this there are human beings who have to try to do justice and to do it with reasonable dispatch and with the eye on the essential merits it does, we are bound to observe, make it very difficult when every single time an issue arises it can only be considered against the background of a wealth of material that is very difficult fully to absorb.  None of that is said in a spirit of anything other than constructive criticism.

5	We have had the advantage of Mrs Lane’s submissions this morning.  We can certainly see the passionate way in which she feels about this matter and we were certainly conscious that she was doing her level best to help us.  The problem is a lack of experience and a lack of appreciation of the need for both the Employment Tribunal and this Tribunal to be pragmatic in its approach to cases so that it can, for example, maintain a through-put of litigation.  

6	Turning then from those general observations to the decision under appeal we have to say that we are quite unable to find any point of law whatsoever arising out of the decision of the Employment Tribunal arrived at with respect to liability that decision being propagated to the parties by way of the extended reasons of 28 December 1998.  The essential thrust was initially quite simply as to fact.  When pressed by us, it had to be put on the basis that in successive paragraphs that there were decisions arrived at by this Tribunal that were perverse and to that extent raised points of law.  We have listened to them all with patience and care but we were quite unable to find anything in any of them that went that far.  

7	The essential problem is that the Employment Tribunal, having heard the evidence over a very long period of time and having done its best no doubt to keep a cool head amidst all the words and paper that was floating about, arrived at a majority decision which was unfavourable to Mr Silva.  The thrust before us is that they were wrong to come to that decision.  As we keep repetitively pointing out, it was their function to make that decision.  They heard the evidence.  It is not our function to revisit that decision unless and until a point of law can be identified.  

8	We do not think we need to go through each and every point made to us, but one particular point merits mention and it arises over the evidence of Ms Jordan to the Employment Tribunal.  The case for Mr Silva is that that evidence was wrong, indeed that it was deliberately wrong so as to amount to perjury.  We are invited to regard the acceptance of that evidence by the Tribunal as raising a matter of law.  We resolutely refuse to do so.  It was essentially for the Tribunal to hear the submissions of Mrs Lane which were put at that level before them and to make their own decision about Ms Jordan.  They may have accepted her, they may have rejected her, but this is essentially a matter for them it is not a matter for us to review their approach to Ms Jordan not least because we are never going to hear from Ms Jordan.  We have to rely entirely on the assessment of the Employment Tribunal of her as their witness and the law requires us so to do.  It is the Employment Tribunal who hears the witnesses and who in the oft-repeated words ‘acts as the industrial jury’.

9	Matters do not end there because as directed by the Employment Tribunal there was a remedies hearing on 11 January 1999 which ended with an award to Mr Silva.  The unanimous decision of the Tribunal was that he be awarded £659.69 as compensation for unfair dismissal.  Once again we are confronted by a very long Notice of Appeal which raises point after point after point for our consideration.  That in its turn is backed up with a Skeleton Argument which raises no less than 23 points that are said to amount to points of law arising out of the decision.  It is perfectly plain that there simply could not be 23 points arising out of a decision that is essentially a jury decision made in one day on the evidence that was put before it.  That the result of putting 23 points before us is, unless we keep a clear head, simply to confuse us and to make it difficult for us to see the wood for the trees.  

10	Happily, and we pay tribute to Mrs Lane over this, the first point that she raises is a point that in our judgment reflects a potential error of law and merits an inter partes hearing.  That point arises as follows.  In the course of making the award, the Tribunal had to calculate a compensatory award.  One element of that compensatory award was the loss of wages sustained by Mr Silva over an 11-week period.  In order to make that calculation the Tribunal had of necessity, to make a finding as to his net wages at the material time.  That finding in its turn had a necessity to be based upon evidence.  If it was not based upon evidence, then as a finding it was perverse.  If it was perverse, there then is a point of law.  

11	Turning to the precise problem it is as follows.  Notwithstanding that the IT1 specified a net wage of £186 per week, notwithstanding that the IT3 specified a net wage of £190 per week, the figure of £147.46 is the one utilised.  When we make enquiry as to how that figure arose it certainly appears that it did not emanate from Mrs Lane who had not, she candidly says, taken the trouble to work out a net wage, but what appears to have happened is that it came from perusal of some wage slips that were put before the Tribunal without comment, which wage slips are not presently before us for our own perusal.  

12	We would also point out that Mrs Lane did properly ask for a review of the matter and did not get any further assistance from the Chairman that was of any particular value.  He indicated that his recollection was that it was a figure that was agreed.  For our part, we are understandably uneasy about the provenance of this figure.  There must be some evidence to support it before we can sustain it and currently we are in the position of being unable to see what evidence, if any, could sustain it and we note that there is an unhappy discrepancy between that figure and the figures as put forward in the IT1 and the IT3.  

13	On that single ground, we adjourn this matter for an inter partes hearing so that the calculation of the compensatory award can be considered by this Tribunal with the benefit of submissions from both sides.  We direct that by way of preparation for that hearing there be a bundle of the relevant pay slips, preferably with calculations appended, one for each side indicating the net wage that is contended for.  Maybe we are hoping for too much but no doubt the parties will be very keen to make sure their submissions are identical because if their submissions are identical they can obviate the costs and bother of a further hearing by recalculating the compensatory award for themselves and dealing with the matter by way of agreement in that way.  But if they cannot and for all we know there may be a problem, then that is a matter that this Tribunal will have to look into with the benefit of submissions from both sides.  

14	So on that very narrow single ground we adjourn the appeal with respect to the remedies hearing and direct that it goes forward to an inter partes hearing.  We do so with regret we are conscious that that which is at stake may not be a very substantial sum but it cannot be said to be negligible and in those circumstances the order we make is the one that we have indicated.  We would like to conclude by thanking Mr Collins of SENSE who did his best to help us, albeit for understandable reasons unprepared for that task.