Appeal No.	 EAT/45/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D A C LAMBERT
MRS D M PALMER

MS S PORT	APPELLANT

THE ROYAL MAIL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S A BROCHWICZ-LEWINSKI
(of Counsel)
Messrs Richard Lemberger & Co
Solicitors
53a The Parade
Leamington Spa
CV32 4BA	

	MR JUSTICE HOLLAND:     We have before us an appeal from a decision of an Employment Tribunal held at Birmingham, the hearing starting on 21 September 1998.  At the end of several days of hearing and subsequent adjudication, the decision of the Tribunal was that the Respondents did not discriminate against the Applicant on the grounds of her sex and the First Respondent had not made an unauthorised deduction from the wages of the Applicant in contravention of section 13(1) of the Employment Rights Act 1996.

	Against those decisions there is an appeal to this Tribunal.  It has been listed before us this morning by way of a preliminary hearing and our task is to decide whether the matter should go forward for a hearing at which the Respondents are represented, or whether there is such a lack of merit in the matter that we could, and should, dismiss it today.

	Our decision is quite clear.  This matter will have to go forward for an inter partes hearing.  The point that justifies that decision, in our judgment, arises from the way in which the Tribunal tackled the issues before it.  Having set out, of necessity at some length, the facts as they found them and having directed itself as to the terms of section 1 Sex Discrimination Act 1975, it then proceeded to deal with the entire issue in two paragraphs, paragraphs 30 and 31 and principally, in the first such paragraph.  By way of those paragraphs it was, or should have been, applying the tests prescribed by the Court of Appeal as appropriate for the approach of a Tribunal to such issues, the authority being King v Great Britain China Centre [1992] ICR 516, with the tests themselves set out in the judgment of Neill LJ at 528.

	For our part we discern an argument that the Tribunal did not properly approach its adjudication by reference to the stages as prescribed by Neill LJ.  We discern in particular an argument to the effect that they elided the stages so as to fail clearly to adjudicate as is appropriate. 

	There is further, we are satisfied, a point for argument relating out of the latter part of paragraph 30 directed to the underlying findings of fact.  There is seemingly an argument that such are perverse, having regard to the evidence put before the Tribunal.  We make no observation as to the likely prospects for these arguments.  We are simply satisfied that they are arguable and arguable to the extent as to call for a reply on the part of the Respondents, hence the merits of an inter partes hearing.

	Before departing from this part of our judgment, we draw attention to that which has been put before us, namely a statement of agreed facts and we draw attention to certain thereof which, in themselves, suggest discrimination but which do not appear to have been taken into account by this Tribunal.

	There has been a further point put before us as justifying an inter partes hearing and it arises as follows.  The hearing started on a Monday.  On the preceding Saturday there was a belated delivery to the Applicant of the witness statements as relied upon by the Respondents.  It is plain that delivery at that late stage must be contrary to any directions given in this matter and certainly could not be categorised as good practice.  She was unrepresented on the Monday and in those circumstances applied for an adjournment for either 7 or 14 days to allow her to read the statements with care and cross reference them with the substantial bundle of documents.

	The Tribunal peremptorily rejected that application and proceeded with the hearing.  It is right to add that some 5 days had been set aside for the hearing and the Tribunal members had made themselves available for that period, such to be starting on that Monday.  It is submitted to us that that decision by the Tribunal was perverse in that it was a decision which no reasonable Tribunal could make and that therein lies another ground of appeal to this Tribunal.

	We have given careful consideration to that.  We cannot regard that decision as perverse and were that the only matter, then we should be dismissing this appeal.

	As we see it, the Tribunal was placed in a difficult position by the events that we have described.  It had to make a balanced decision and, no doubt, it took into account that the hearing was to last 5 days and in that period of time, not only would the Applicant have the opportunity to read those statements carefully, but there would be a great deal of time for the Tribunal itself to help her clarify her position, clarify her case, and with those factors in the balance nobody, in our judgment, could say that the decision was perverse.  It would indeed, viewed the other way round, have been a remarkable decision to adjourn the whole matter to some other period of 5 days because these statements had not been properly read over the preceding weekend.  Once one puts it in that way, one sees that it is a point which, whilst no doubt upsetting to the Applicant, could not possibly found an appeal to this Tribunal.

	Putting that aside however, for the reasons already set out in this judgment, we direct that there be an inter partes hearing and we shall now hear any requests there may be for directions with respect to that hearing.