England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 31st July 2002

1. LORD JUSTICE KENNEDY: This is a renewed application made on behalf of Mr Jiminez for permission to appeal from a decision of theEmployment Appeal Tribunal presided over by Mr Justice Bell which, on 17th July 2002, in a reserved judgment, allowed the London Borough of Southwark's appeal from the decision of the Employment Tribunal. The Employment Appeal Tribunal ordered that the appeal be allowed only in relation to the issues of disability discrimination and unfair dismissal, that the decision of the Employment Tribunal be set aside and that the matter be remitted for rehearing by a differently constituted Employment Tribunal in relation to those issues.
2. The background to this matter is, for present purposes, not of great importance but it is perhaps worth summarising it. Mr Jiminez is 39 years of age. He worked intermittently for the local authority from 1981. In early 1995 he was appointed head of Clients' Services on the exchequer side. He experienced health problems and an issue arose whether he was permanently unfit for employment with the local authority. He worked for the council last in January 1996. On 26th February 1998, by means of a letter written by his solicitors, he tendered his resignation complaining of failure to resolve the issue in relation to his ill health retirement claim, complaining of the restructuring of his department without reference to him and of lack of payment to him in respect of the period after January 1996. He asserted that he was constructively dismissed.
3. The originating application which brought the matter before the Employment Tribunal was issued on 21st May 1998. It raised a variety of issues. At the same time Mr Jiminez sought redress in the High Court by means of an action for damages claiming that there was injury to his health and consequential loss caused by an excessive burden placed upon him by his employers. That action was unsuccessful and nothing further, for present purposes, need be said about it.
4. Between 9th November 1998 and 17th May 1999 there was the hearing before the Employment Tribunal in relation to the application which had been issued in May 1998. At the end of the hearing judgment was reserved and it was sent to the parties on 13th September 1999. The Employment Tribunal found in favour of Mr Jiminez. Southwark Council then appealed on five grounds, the first of which was that there was a real danger or possibility of bias in the conduct of the proceedings and in the decision reached. What happened between the conclusion of the Employment Tribunal hearing and the hearing before the Employment Appeal Tribunal is of some significance because although in general terms the issue of bias was raised in the original notice of appeal, and the matter was referred to the Employment Tribunal for its comments together with an affidavit which had been sworn by Mr Robinson on behalf of Southwark, on 7th January 2000 the only comments of the tribunal chairman related inevitably to that first notice and to that first affidavit. Those were set out in a letter from the chairman dated 14th June 2000. Thereafter on 8th November 2000 Mr Robinson swore a second affidavit to which he exhibited a record prepared by Mr Prince, who had represented Southwark as its solicitor on 12th March 1999 and who, on 18th March 1999, prepared a two-page memorandum for the benefit of the Borough solicitor and secretary as to what he said had happened on 12th March. That document was of considerable importance ultimately in relation to the hearing of the appeal.
5. The arrival of that document annexed to Mr Robinson's second affidavit resulted in a preliminary hearing on 16th November 2000 when Southwark was allowed, in effect, to substitute fresh grounds of appeal which encapsulated part of what had been said by Mr Prince because at paragraph 4.7 there appears this observation:

"An illustration of the type of comments which were made to the parties before they had even made submissions (and before one witness had given her evidence) was the chairman's remark made [on] 12th March 1999 that

`The tribunal is expressing its preliminary views in respect of this matter. In the view of the tribunal, the way in which the respondent has treated this man was appalling.'"

6. Thereafter the respondent prepared a respondents' notice in which that hearing on 12th March 1999 was addressed. In relation to that hearing it was asserted that it was a hearing at which the tribunal was expressing its views at the request of the parties. The foundation for that proposition seems to lie in an affidavit from Mr Smith, who was acting as solicitor on behalf of the respondent Mr Jiminez on 12th March 1999. After the amendment to the grounds of appeal that solicitor swore his affidavit, Mr Robinson swore a second and a third affidavit and Mr Willshire, who had appeared as counsel for the local authority, also swore an affidavit. It follows that none of the affidavits to which I have just referred or, for that matter, the amended grounds of appeal or the respondents' notice have ever been shown, as far as we are aware, to any member of the Employment Tribunal who is the subject of criticism.
7. When the matter came before the Employment Tribunal the tribunal, in effect, focussed on the events of 12th March 1999 and accepted as accurate Mr Prince's note in relation to the events of that day. The accuracy of that note is not seriously challenged by Miss Grewal who has, at all material times, appeared as counsel for Mr Jiminez although she has reservations about certain parts of it and prepared a schedule for the benefit of the Employment Appeal Tribunal. That schedule contains a number of indications, points at which her recollection is not entirely the same as that of Mr Prince but she has always accepted that in broad terms she accepts the accuracy of his note. The only point with which she takes any serious issue is to be found in her skeleton argument prepared for the purposes of this court where she says that in relation to paragraph 6 in Mr Prince's note her note reads:

"All the matters Ms Grewal put to Keith Brown yesterday - the eight points - we find that the respondents really do have to explain their conduct under those headings. [There are a] Number of hurdles to jump to convince us."

8. The Employment Appeal Tribunal's decision in relation to the events of 12th March was that on that occasion the Employment Tribunal had stepped beyond the bounds of propriety and had exhibited bias to such an extent that it was necessary for the matter to be re-heard.
9. Paragraph 9 of Practice Direction (Employment Appeal Tribunal - Procedure) 1996, so far as relevant, reads thus:

"1 A party who intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the chairman or lay members or procedural irregularities at the hearing) must include in the notice of appeal full and sufficient particulars of the complaint.

2 In any such case the registrar may inquire of the party making the complaint whether it is intended to proceed with it. If so, the registrar will give appropriate directions for the hearing.

3 Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the respondent or his or her advisers or any others who can give evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on.

4 When the direction has been complied with the registrar will notify the chairman of the Industrial Tribunal and provide copies of the notice of appeal, the affidavits and other relevant documents to the chairman so that he has, and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties.

5 A copy of any affidavit or of directions for further particulars will be supplied to the other side.

6 The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

10. In the present case the Employment Appeal Tribunal was clearly conscious of the fact that the procedure prescribed by paragraph 9 of the practice direction had not been followed because it said in terms that (paragraph 41 of the decision):

"41 The chairman [of the Employment Tribunal] did not comment on events on 12 March 1999, because they were not raised in Mr Robinson's affidavit [his first affidavit] and they were only indirectly and incompletely raised in the grounds of appeal [the unamended grounds]. However, the material facts on 12th March 1999 were common ground between the parties, before us, and the preamble to them on 11 March was illustrated by the transcript of proceedings."

11. I am concerned by the fact that the members of the Employment Tribunal were not given the opportunity provided for by paragraph 9 of the practice direction to comment on the allegation as it was ultimately developed before the Employment Appeal Tribunal and as it found favour before the Employment Appeal Tribunal. I am particularly concerned about it because it appears from the consideration of the affidavit of Mr Smith and the later affidavits of Mr Robinson that it is at least possible that what happened on 12th March was a hearing which took place with the full consent of both parties. The tribunal had it seems, at any rate on one view of the material before us, offered to express its tentative view as to the outcome of the proceedings having, by that stage, heard almost all the evidence and made it clear it was not pressing to express its view but was willing to do so. It seems, according to the affidavit of Mr Smith, that after both sides had taken instructions they agreed to that course.
12. If that is the background to what happened on 12th March, a day when both sides went to the tribunal for no other purpose than to receive the tribunal's interim view in relation to what the outcome of the proceedings would be, then it may be of assistance to this court to know that was the situation. The problem now is that we are dealing with events that took place in March 1999. Of course it would be difficult for the tribunal at this stage to recall what took place at that time. Nevertheless, it seems to me that it would be appropriate to invite the Employment Tribunal, if it chooses, to assist this court by expressing any views it may wish to express in relation to those events.
13. To that end, I, for my part, would be prepared to grant permission to appeal but to require that the appellant send to the Employment Tribunal, with a copy to the respondent, a copy of the judgment of the Employment Appeal Tribunal with annexed to that judgment a copy of Mr Prince's memorandum of 18th March 1999 and Miss Grewal's schedule, counsel's note of differences at page 168 in our bundle, together with only the first six lines on page A12, in other words paragraph 7 of counsel's skeleton argument, for the purposes of an appeal to highlight the one point to which Miss Grewal at this stage attaches weight, copies of the amended grounds of appeal, all three affidavits of Mr Robinson, the affidavit of Mr Smith and the affidavit of Mr Willshire. Armed with that material, it seems to me that the Employment Tribunal should be invited to comment - and I would stress, if it chooses to do so - in relation to the matters set out in Mr Prince's memorandum of 18th March 1999 and, of course, dealt with in Miss Grewal's schedule of differences. It should also be invited to explain why on 12th March the Employment Tribunal saw counsel and solicitors apparently in chambers and not in open court and apparently without a shorthand writer who, on previous days, had been available as one can see from paragraph 29 of the Employment Appeal Tribunal's judgment. It may be the explanation is that on that day no witness was to be called so the shorthand writer was not in attendance. Nevertheless it would be of assistance to know the position of the Employment Tribunal in relation to that matter.
14. As regards the grounds of appeal, I see little to commend ground 5. I would not give permission in relation to that ground. The substance of the matters which, in my judgment, are worthy of consideration by the full court is to be found in grounds 3 and 4. I would not inhibit Miss Grewal from developing the matter as she chooses in relation to grounds 1 to 4 inclusive but I would not be prepared to give permission in relation to ground 5.
15. LORD JUSTICE MUMMERY: I agree.
16. LORD JUSTICE LONGMORE: I agree also.
Order: Application allowed