Appeal No.	 EAT/516/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 July 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR A E R MANNERS
LORD DAVIES OF COITY CBE

MR D FORDER	APPELLANT

SOUTHERN WATER SERVICES PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

DIRECTIONS HEARING

Revised

	APPEARANCES

For the Appellant	MR A TALPADE
(Solicitor)
Instructed By:
Mrs G Leach
Messrs Blake Lapthorn
Solicitors
1 Barnes Wallis Road
Segensworth
Fareham
Hampshire  PO15 5UA
	
For the Respondents	MR A TABACHNICK
(of Counsel)
Instructed By:
Mr B Clarke
Messrs Rowe & Maw
Solicitors
20 Blackfriars Lane
London  EC4V 6HD	

	MR JUSTICE MORISON:	This has been a directions hearing following the order made by the Employment Appeal Tribunal on 22 July 1998.  On that occasion the Tribunal directed that the parties attempt to agree a statement of the evidence relevant to the appeal with liberty to apply for the Chairman’s Notes of Evidence if no such agreement could be made.  The parties were unable to reach agreement as to the statement of the evidence and accordingly an application has been made to me for the Chairman’s Notes.  

1	It seemed to me, and I expressed this view straight away to the parties’ representatives, that Notes of Evidence are not required in a case such as this.  The parties will understand the function of the Employment Appeal Tribunal is to review the decision of the Employment Tribunal and to determine whether there is an error of law within it, so that the decision of the Tribunal stands on all questions of fact.  It is not open to a party to allege that the facts were different from that which the Tribunal found, save in very exceptional circumstances which do not apply in this case.  The purpose of the appeal therefore will be to examine the decision as it stands, warts and all, to determine if there is an arguable point of law.  

2	Having given that indication, Mr Andrew Tabachnick, on behalf of the Respondents to this appeal who were making the applications for the Notes of Evidence, did not press his application, and accordingly I am satisfied that Notes of Evidence are not now required.  In addition, Mr Tabachnick invited me to grant him leave to amend his cross Notice of Appeal to include within it a complaint as to the award of aggravated damages in the sum of £2,500, the argument being that, the award for aggravated damages should not have been made in addition to an award of compensation for injury to feelings.  I express no view about the ultimate outcome of any such argument, but I do acknowledge that the point is an arguable point.  

3	Mr Talpade, on behalf of the Appellant, objected to leave to amend on the basis that it is very late in the day and he rightly points out that there is a procedure within the Employment Appeal Tribunal for dealing with late Notices of Appeal, and he says in these circumstances, I should exercise my discretion against the granting of leave.

4	I do regard the application for leave to amend as having been made late, as it was fankly put by Mr Tabachnick.  The microscope was eventually taken out and as a result this point has been thought of.  It will not require any major work for this point to be argued.  I am satisfied that no prejudice will be caused if I were to grant leave.  It seems to me that point may be of some interest and possibly of wider interest than just to the parties in this case.  Although this was late, I think that I can exercise my discretion and I therefore grant leave to amend, but it follows, it seems to me, that the Appellant should be given time in which to respond to it and therefore, I say that he should have 21 days from today to respond to the cross-appeal.  

5	I have been asked if I will give a listing direction in relation to this case.  It is relatively old for one reason or another.  It is a matter involving a disability discrimination case.  It does seem to me that it would be desirable, if at all possible, for this case to be given some priority in the listing of it, but I make no formal listing direction.  I have informally invited the parties to agree a list of the issues on the appeal with the financial consequences to be attached, were the issue to be decided one way or the other.  I am not making any order in relation to that because I am confident that they will be able to provide the Employment Appeal Tribunal with some further assistance at the same time as the Skeleton Arguments.  Accordingly, I give those directions and thank the parties for their attendance.