Appeal No.	 EAT/516/99  
		 EAT/517/99  
		 EAT/796/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 July 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MRS R CHAPMAN
MR S M SPRINGER MBE

HARADA LTD T/A CHEQUEPOINT UK LTD	APPELLANTS

MR G P TURNER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR A SNELSON 
(of Counsel)
Instructed By:
Messrs Dibb & Clegg
Solicitors
27 Chancery Lane
London  WC2A 1NE	

JUDGE LEVY:	We have before us this morning three appeals by Harada Ltd (the “Appellant”), trading as Chequepoint UK Ltd, against Mr G P Turner (“the Respondent”).  The first two appeals can conveniently be taken together.  

1	On 2 March 1998, the Respondent submitted to an Industrial Tribunal a complaint alleging unfair dismissal and unlawful deductions from wages.  On 20 March 1998, the Appellant submitted an IT3 inter alia denying jurisdiction and if they were wrong on that, perhaps by an amendment, contesting the allegations on their merits.  On 27 March 1998, a Chairman, and we do not know who, directed a preliminary hearing on jurisdiction by letter.  On 26 June 1998, the preliminary hearing on jurisdiction was listed before an Employment Tribunal.  

2	It is suggested by the Appellant, and the suggestion is supported by an affidavit by Counsel, who appeared on that date and who has in fact appeared before us today, that there was conduct by the Chairman (we put it as blandly as we can for the moment) which resulted in the Appellants properly objecting to the Chairman and indeed the panel who heard what the Chairman was alleged to have said, continuing to take any part in the case that day.  

3	Such an application was made to the Chairman to disqualify himself and his colleagues.  The application may also have included seeking the matter being transferred to another Tribunal.  Such application fell on stoney ground and was dealt with succinctly in the extended reasons which were sent to the parties some time later, namely on 10 September 1998, when the extended reasons provide thus:

“4.	Before this hearing Counsel for the parties came in to tell the Tribunal that they had prepared their documentation on the basis that the hearing would be before a Chairman sitting alone and not a full Tribunal.  There was consequently a requirement for further copying.  The Chairman, who had prepared himself for the hearing by reading the file and a bundle of documents that had already been submitted, disclosed that he was aware of the information conceded by the Respondent two days earlier.  

5	On their return, the Respondent’s counsel submitted that the Tribunal was therefore 	biased and demanded a postponement and transfer to another region.  

6	Having considered the submission of both counsel, the Tribunal took the view that there was no bias and refused both a postponement and a transfer.  The reasons were as follows.  First, the Tribunal was not aware of the details of the other cases.  The information disclosed was neutral.  If the situation reflected on the Respondent, it must equally reflect on the Applicant.  He was the Respondent’s Group Solicitor with conduct of the previous hearings until 26 February and could not be dissociated from what had happened.  If any impressions had been formed from a reading of the papers, which included the witness statements of both parties, it was pointed out that first impressions could easily be dispelled on hearing the evidence.”

4	Having considered an affidavit sworn by Mr Snelson on 25 June 1999 on behalf of the Appellant, we consider that there is a case to be investigated by a full hearing as to whether the decision of the Tribunal on the postponement can be sustained.  We should add that this is only the PHD of the appeal by the Appellant, and it is right to say that a Notice of Appeal by the Respondent has led to the matter going ahead following a successful determination of his appeal by the Employment Appeal Tribunal on 23 March 1999.  The Appellant did not play a full part in the proceedings which followed.  

5	There is a further and separate point raised by the Appellant, namely that the Tribunal was wrong on the decision it made as to its jurisdiction.  We think that this can conveniently be covered in one Notice of Appeal and one appeal hearing.  We have therefore given leave to Mr Snelson to consolidate the two Notices of Appeal with which we have so far dealt so that they come up for one hearing before a full Tribunal.  It may be that the parties will agree that, if the first appeal is successful, it will not be necessary to argue the second, but in view of the lapse of time it is desirable that both should be heard as soon as possible.  It is necessary for us to give directions before the matter can come before a full Tribunal.  

6	The Chairman has been asked if he wishes to comment on the affidavit of Mr Snelson by a letter dated 29 June.  In a letter, merely dated July 1999, but received by this Tribunal on 8 July 1999, the Chairman says: 

“The position is I believe adequately covered in the decision which was given in this matter and I have no further observations to make.”

In the light of the fact that this is going to a full hearing at the Tribunal, the Chairman may care to have another look at the full nature of the allegations made in Mr Snelson’s affidavit to see if he wishes to give further comment, which may or may not assist the Tribunal when the matter comes up for a full hearing.  In any event, we think in a case where what is alleged to have been said by Mr Snelson was heard by members of the Tribunal, it would be sensible to give their comments also on what is so alleged.  We therefore direct that the Chairman and the side members be invited in two cases to comment, in one case to comment further on the affidavit evidence provided by the Appellant.  It would be helpful for this Tribunal if their comments could be received within 28 days.  

7	Once any comments have been received, we will direct that the Respondent be at liberty to answer the affidavit of Mr Snelson, and deal with any comments made by the other parties within 28 days thereafter.  The matter should come on for a hearing as soon as possible thereafter.  We think that this will be a Category B appeal, which may well take over half a day and it is essential that a bundle and chronology be prepared for the hearing to be lodged with skeleton arguments.  

8	There is a third appeal by the Appellant.  This is against the decision of the Tribunal in Stratford, which ultimately heard the Respondent’s application.  We take the detail from the chronology helpfully prepared by Mr Snelson.  

9	Following the Employment Appeal Tribunal judgment of 23 March 1999, a Chairman sitting alone at Stratford in a letter dated 1 April 1999, gave directions for a hearing for the Appellant’s case.  There was an application to the Court of Appeal by the Appellant to prevent that case being heard in the light of the appeals which were in progress, which we have considered in this judgment.  That application was dealt with by Mummery LJ on 21 May 1999 on paper.  He declined leave or a stay of the proceedings; thereafter the Respondent’s complaint was considered by an Employment Tribunal at Stratford on 24 May 1999.  The Appellant appeared at that hearing to seek a stay.  In the extended reasons sent to the parties on 25 May, the Chairman said this (we read from page 17 of bundle C):

“9	Mr Snelson’s invitation to us is to adjourn the proceedings until after the renewed application for leave to appeal.  Attractive as the argument is that there needs to be a final determination of the jurisdictional point before the Tribunal can properly deal with the substantive case because the Respondent here says that Article 18 of the Brussels Convention puts them in difficulty in dealing with this case substantively we are not persuaded.

10	It seems to us that the proper analysis is this.  If we were to postpone the hearing, either the Court of Appeal will give leave to appeal, in which case the parties are no further forward because the Respondent will still be taking their jurisdictional point, or the Court of Appeal will refuse leave and the Respondent will have to decide then whether to appeal or not.  However they will still at that stage, it is likely, have an outstanding appeal to the Employment Appeal Tribunal on the jurisdictional point because those appeals have not yet been listed for a preliminary hearing.  Even then they will either again have to weigh their perceived jurisdictional objection to taking part in the proceedings under Article 18, or not take part in the proceedings.

11	The jurisdictional point is, insofar as these points ever are, relatively straightforward.  Either the Tribunal has jurisdiction under Article 2 or Article 5(1) or Article 5(5) in which case the Respondent must submit the jurisdiction because they have no choice or, if those Articles do not confer jurisdiction, then they do not wish to submit to the jurisdiction because of the problem of Article 18 which says that if they enter into the arena and deal with the matters substantively they are taken to have submitted to the jurisdiction.

12	In summary then, applying the analysis that we have given, there will either be substantial delay in this matter being dealt with by both parties on the merits or the Employment Tribunal will be in no different position form the position it is in today.  Because we cannot and will not revisit or review the merits of the jurisdictional arguments which we recite only to clarify the dilemma which faces us and the parties today we decline, in the exercise of our discretion, to postpone this matter and, with the exhortations given by the Employment Tribunal ringing in our ears, decide that this case will proceed today.”

The exhortations which the Tribunal referred to were the exhortations following a hearing before the President in which he directed that on an appeal by the Applicant the case should be transferred to Stratford and listed for an expedited directions hearing.  He had refused leave to appeal on that. 

10	Mr Snelson has submitted to us that it unjust for the matter to have proceeded the way it did when these appeals were outstanding.  However, as we have pointed out to him in argument, there had been no appeal against the decision of Mummery LJ and in those circumstances it appears to us that the discretion of the Chairman and his colleagues on 24 May was properly exercised and that no appeal can succeed against the way that it was exercised in the circumstances.  We therefore will not allow this appeal to go beyond this stage and dismiss it now.

11	We have pointed out to Mr Snelson that it is not usual for an advocate to give evidence in a case.  If there is controversy about the matters with which he deals in his affidavit, he should, and we have no doubt that he will, reconsider his personal position.