England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice The Strand London
		Tuesday 23 October 2001

Tuesday 23 October 2001

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the decision of the Employment Appeal Tribunal which was given on 11 May 2001. The EAT then dismissed the applicant's appeal from a decision of the Employment Tribunal which in its turn had dismissed his claim for wrongful and constructive dismissal and also race discrimination.
2. The ET had dismissed the claims because they were brought out of time. As I understand it, there is no dispute as to their having been brought out of time. However (and this is what has generated Mr Leander's complaints) the ET nevertheless proceeded to consider the merits, at any rate of the discrimination claims. They held that, had they possessed jurisdiction to entertain those claims, they would have failed in any event. Mr Leander's complaints are to the way in which the ET treated the discrimination claims when they came to consider their merits on this hypothetical basis.
3. Before the EAT, however, Mr Leander alleged bias on the part of the Employment Tribunal, in particular in relation to the actions of the chairman. The EAT held that there was no basis for that, nor any other procedural or legal error which should give rise to a viable appeal.
4. In his helpful and very clearly drafted skeleton argument the applicant, Mr Leander, makes these assertions. First, he says that the EAT did not deal with his complaint to the effect that the ET, in stating what its decision would have been had it had jurisdiction, has produced a very unhappy consequence, namely it has opened the door to victimisation of Mr Leander by Goldsmith's College, where he had been a lecturer employed on a series of fixed-term contracts. It seems that both parties wanted jurisdiction in the race discrimination complaint to be determined as a preliminary issue, but, says the applicant, the Employment Tribunal decided that it did not have jurisdiction and, as I have already indicated, stated what its decision would have been had it possessed jurisdiction. Mr Leander's complaint is that these extended reasons, unnecessary for the actual result arrived at in the ET, have been used by Goldsmith's College to victimise him.
5. Secondly, it is said that the EAT took no account of his complaint that he had been denied justice and fairness by the ET. This relates in particular to a refusal by the ET to order the production of certain documents. He has placed express emphasis on this before me this morning. One of the documents concerns promotion. His complaint is that if they did choose to go into the matter as they did, notwithstanding the want of jurisdiction, then to go into it properly would have required these documents to have been produced. The ET should not, says Mr Leander, have merely relied on Goldsmith's College's interpretation of the documents.
6. It is also said in the skeleton that the EAT ignored his contention that the effect of the approach of the ET was that his right to a fair trial under Article 6 of the Human Rights Convention was violated.
7. Lastly, it is said that the EAT took no account of certain affidavit evidence put before it in relation to the bias of the chairman of the ET. The EAT did not properly address the complaint made by the appellant, but the chairman made comments indicative of racial bias.
8. I will deal, first, shortly with point about victimisation by Goldsmith's College because I apprehend that that is what troubled Mr Leander most. It is clear that he made a submission about victimisation before the EAT. I have seen his skeleton argument produced for the hearing there. It is true that the EAT did not specifically deal with it. However, I am afraid that the criticism is misconceived. I have not seen any clear evidence to support the assertion of a causal link between the judgment of the EAT and any victimisation experienced at the hands of Goldsmith's College. But even if Mr Leander could show that there was such a causal link, it seems to me plain beyond argument that the Employment Tribunal cannot be fixed with any blame capable of being canvassed in this court as a matter of appeal because Goldsmith's College has in some way victimised him. The truth is that the decision of the ET was to dismiss the application because it was out of time. If they entered into unnecessary reasoning, which has had unhappy consequences for Mr Leander, that is much to be regretted but does not seem to me to figure as a proper subject of appeal. Moreover, I notice that it would appear that Mr Leander, being no longer employed by Goldsmith's College, in any event cannot complain of any victimisation by the college in its role of employer.
9. I turn to Mr Leander's right to a fair trial. There is here something of a failure on his part to distinguish between failing to institute proceedings in time and, on the other hand, failing to have evidence available in time. The ET arrived at two separate decisions as to each of these separate points. I have seen no finding to support any suggestion that had Mr Leander's complaint been made in time, then he would have had his evidence automatically prepared in time. But however all that may be, as regards the documents, which is what Mr Leander has emphasised before me this morning, I notice the decision of the EAT at paragraphs 25 and 26:

"25. In paragraph 26 the [Employment] Tribunal record that on the second day of the hearing, after lunch, the Appellant made an application for disclosure of various documents by the Respondent. The Tribunal noted that the earlier Interlocutory Order had dealt also with the issue of disclosure and after considering the matter, the Tribunal announced that it would not entertain any application for disclosure of further documents.

26. They state very clearly that in arriving at that conclusion they took into account the late stage at which that application was made, the perceived relevance of the requested documents to the issues and the balance of prejudice. The Chairman in his Affidavit, responding to the allegations of bias, deals with this matter further in paragraphs 14 to 15 and explains all these matters were considered very carefully before the Tribunal members concluded that they would not entertain any late application for disclosure of the further documents."

10. In short, the EAT held that the tribunal's decision could not be impugned before them.
11. That seems to me to be right. The fact is that the applications were dismissed as having been brought out of time. Even had there been some arguable procedural failure in relation to the production of documents, it would have arisen in the context of an issue which, in truth, was moot or hypothetical, and would not properly give rise to an appeal. It is my duty for all these reasons to refuse this application.
12. THE APPLICANT: My Lord, may I ask one question, please?
13. LORD JUSTICE LAWS: Yes, Mr Leander.
14. THE APPLICANT: I did mention quite clearly in my skeleton argument that one of the ways in which this decision has been used was to stay another case pending at the Industrial Tribunal on the grounds that this was a determination in favour of Goldsmith's College, and therefore the subsequent case is res judicata.
15. LORD JUSTICE LAWS: Mr Leander, I am afraid I do not think that those considerations alter the balance of the judgment I have given. Thank you very much.