Appeal No.	 EAT/348/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 July 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR A D TUFFIN CBE
MRS R A VICKERS

MRS A C P D'CRUZ	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us as a preliminary hearing the appeal of Mrs A.C.P. D’Cruz  in the matter D’Cruz against the Inland Revenue.  Mrs D’Cruz is in person.

1	On 13 April 1999 Mrs D’Cruz, who describes herself as black, presented her IT1 as against her employer, the Commissioners of Inland Revenue, claiming “Victimisation and Racial Discrimination”.  She is an Inspector of Taxes and began work with the Revenue in October 1974.  She had previously lodged two Employment Tribunal complaints, one for racial discrimination and one for victimisation.  The victimisation complaint settled but the racial discrimination case was upheld in her favour in 1991.  Her IT1 this time round set out a history going back several years but also including recent events, the gist of which seem to be that she was not being fairly assessed and not getting the promotion that she deserved and that that was being occasioned on discriminatory and racial lines.

2	On 5 May 1999 the Commissioners of Inland Revenue’s IT3 denied victimisation and discrimination and indicated that their Equal Opportunities Policy required an investigator to report on the complaint that Mrs D’Cruz had made.  There was then a hearing at London (North) for four days plus one day for the Employment Tribunal to consider the matter in Chambers.  

3	The Tribunal, under the chairmanship of Miss Lewzey consisted of also Mrs W. Bishop and Mr W.A. Taylor.  The hearing was on 23, 24, 25 and 29 November 1999 and then the day in Chambers was on 1 December 1999; the decision was sent to the parties on 28 January 2000.  The decision was unanimous and was as follows:

“The unanimous decision of the Tribunal is that
(a)	the Applicant’s complaint of direct racial discrimination fails; and 
(b)	the Applicant’s complaint of racial discrimination by way of victimisation fails.”

4	Mrs D’Cruz had been in person below and the Commissioners of Inland Revenue had been represented by Counsel of considerable experience in this area of the law.  The Tribunal sets out the witnesses that it heard and they set about a long decision, some 59 effective paragraphs long.  There is a confusing passage where the Tribunal returns to the subject of law, repeating its earlier passage almost word for word but with a slight addition, but that would seem to have been an accident of word processing rather than anything else.

5	We do not need to go into any detail through the Extended Reasons because, although we would confess to having approached this matter, after having read the papers, on the basis that there was no error of law visible (and, of course, it is only errors of law with which we can deal) having heard Mrs D’Cruz this morning we do think that this is a case which would benefit from an inter partes hearing and we shall briefly explain why.  

6	One of Mrs D’Cruz’s complaints is that she wished to cross-examine a Mr Barnaby, who had apparently given a Witness Statement for the Inland Revenue.  She says, as a matter of complaint, under the heading “Mr Barnaby”:

“The Chairman denied me the opportunity to cross examine Mr Barnaby.  The Respondents advised that Mr Barnaby, one of their witnesses, was free to give evidence on the 1st December 1999.  I advised that he was one of the crucial witnesses and that I needed to cross examine him.  However the Chairman said she would decide on whether Mr Barnaby was a relevant witness.  She adjourned the hearing for 15 minutes to decide and decided that Mr Barnaby should not be called to give evidence.”

7	So that there, on Mrs D’Cruz’s version, the decision whether or not Mr Barnaby was to be cross examined was that of the Chairman.  In the ordinary course Mrs D’Cruz’s complaints, which were supported by affidavit, were put to the Chairman and the Chairman says, dealing also with a Mrs Phillips:

“Although the Respondent produced witness statements from Mr Barnaby, Ms Hanna and Mr Phillips, Mr Carr [Counsel for the Inland Revenue] did not elect to call them to give evidence.  The Tribunal did not take into account any evidence from Mr Barnaby, Mrs Phillips or, indeed, Ms Hanna.  Mrs D’Cruz did not ask for a witness order to compel these witnesses to give evidence for her.”

8	It is possible that both versions are true, but there is a possibility of confusion in that Mrs D’Cruz was pressing to be able to question Mr Barnaby and, as we have indicated, her version is that it was the Chairman that decided that Barnaby was not to be available, whereas the Chairman’s version is that it was Mr Carr, the Respondent’s Revenue’s Counsel, that in effect made the decision.  Mrs D’Cruz’ collected letters from a number of persons who were present at the hearing on the relevant day and it is Mrs Cruz’ assertion that the decision was not that of Mr Carr but rather of the Chairman.  We have a letter from someone called Gina, who has been identified more fully to us, who says:

“The Chairperson asked you if you wanted to cross-examine him and you confirmed that you had some crucial questions to put to him.  She then wanted time to discuss with her colleagues whether or not they would hear his evidence.  We were asked to leave the room so that this could be done in private.”

Then, a little later:

“After a short period of time …  The chairperson said it was their decision not to call Mr Barnaby to the hearing and so she would be moving on to the closing statements from both sides in the afternoon.”

Premanie Gibbs writes to much the same effect and L.D. Colquhoun writes that:

“The Chairperson asked Mrs D’Cruz if she wished to cross examine Barnaby to which the reply was a resounding ‘Yes’.
As a result the Chairperson dismissed those present to enable her to deliberate with her colleagues as to whether Barnaby should be called as a witness.”

9	It is not at all clear exactly what happened here and, as I mentioned earlier, both versions could, strictly speaking, be the truth.  But it would help us, or would help the Employment Appeal Tribunal, if they had the benefit of the Revenue’s version of events and, no doubt also, Mr Carr’s version of events so that it can be eventually decided in a more informed manner whether Mrs D’Cruz was denied an opportunity she should have been given or whether it was simply that the Revenue elected not to rely on Witness Statements and therefore decided not to call a witness and that therefore there was no question of the witness being cross examined, but rather that Mrs D’Cruz would have had to apply to call such a person as a witness and would then be in the difficulty that she would be unable to cross examine that witness unless and until the witness was held to be a hostile witness.  It is obviously a rather technical area in which lay people can get confused.  It would greatly assist us if we had an inter partes hearing.

10	So, having begun from the position that we saw no error of law in Mrs D’Cruz’s case, we do think, without saying whether or not there was an error of law, that this is a matter which should benefit from an inter partes hearing and accordingly we direct it to go to a full hearing.  

11	The parties are to submit full skeleton arguments not less than 14 days before the hearing, exchanging them with each other and submitting the skeleton to the Employment Appeal Tribunal.  It will obviously assist if such evidence as either side wishes to give in relation to the conduct of the proceedings is given in good time and exchanged with each other in good time before the hearing.  We do not give directions in that behalf here and now but if there is difficulty encountered in the course of preparation of evidence or steps to be taken in relation to evidence, well then, there can, of course, be a restoration of the matter for directions.  But we would hope that the parties are able to devise a suitable timetable for exchanging evidence and therefore we only make the directions as to skeletons arguments which we have already given.