England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Ms J M Mulvaney, Chairman
EMPLOYMENT TRIBUNAL in BRISTOL

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2007

Lord Justice Wall:

1. In a judgment promulgated on 26 March 2006, after a hearing lasting 8 days (and with two additional days spent in chambers considering its decision) the Employment Tribunal at Bristol (the Tribunal) held unanimously that Alvida Marie Harrold (the claimant before the Tribunal and the applicant in this court and hereinafter referred to as "the applicant") had not been discriminated against by her former employer, North Bristol NHS Trust (the Trust) contrary to section 1(1)(a) and section 2 of the Race Relations Act 1976 (RA 1976). The Tribunal also decided that the applicant had been fairly dismissed.
2. On 25 May 2007, the applicant sought a review by the Employment Appeal Tribunal (EAT) of the Tribunal's decision pursuant to rule 33(1) of the EAT Rules 1993 (as amended). On that application she was represented by Mr. Peter Wallington of counsel, who appeared for her under the Employment Law Appeal Advice Scheme (ELAAS), her application was refused by the EAT in a constitution chaired by His Honour Judge Peter Clark on the ground that it had no reasonable prospect of success. By paragraphs 2 and 3 of its order, the EAT recorded that: -

2. The sole point argued on behalf of the Appellant at the preliminary hearing by experienced counsel related to the Employment Tribunal's refusal to grant an adjournment on the 5^th day of the hearing. We considered and rejected that ground for the reasons given in our judgment.

3. The Review application attempts to reargue the appeal on this and other grounds. That is not a matter for Review, but appeal, with permission.

3. The EAT further directed that any application for leave to appeal from its decision should be made direct to the Court of Appeal. On 18 June 2007, the applicant filed her appellant's notice. The first ground of appeal is that Judge Clark was wrong to accept that the Tribunal had been entitled to reject her application for an adjournment to obtain legal representation. There follow nine paragraphs of reasons.
4. On 8 August 2007, on the papers, Lord Justice Pill refused the applicant's application for permission to appeal. The reasons he gave for so doing were as follows: -

The (Tribunal) considered the applicant's complaints in considerable detail at and following a long hearing. It is clear from the notice of appeal to the EAT that it was the fairness of the hearing at the (Tribunal) which formed the basis of the appeal to the EAT. I am conscious of the difficulties faced by the applicant in conducting a long hearing in person but the (Tribunal) were entitled to refuse the application for an adjournment made in the course of the hearing. They had to consider fairness to both sides. That was the conclusion of the EAT, to whom an appeal has already been made at which counsel acting under the ELAAS spoke for the applicant. Having regard to the representations made by the applicant, she cannot complain of the number of witnesses called by the Trust. The (Tribunal) were entitled to reach the conclusions they did and the applicant cannot expect a re-hearing of issues of fact in this court, as she seeks to do in her skeleton argument, though not in her grounds of appeal. There is no real prospect of establishing an error of law either in the way the case was heard in the (Tribunal) or in the substance of the (Tribunal's) decision to dismiss the complain.

5. The applicant exercised her right to an oral hearing, which I heard by video link on 11 October 2007. It was immediately apparent to me that although I had both the judgments of the Tribunal and the EAT, I did not have the applicant's affidavit sworn on 11 July 2006, in which she deposed to the circumstances in which she sought an adjournment from the Tribunal, nor did I have the comments of the Tribunal chair and her colleagues on the applicant's affidavit. I therefore suggested to the applicant that I needed to see these (and some other documents) before I could properly reach a conclusion on her application for permission to appeal.
6. The applicant has now helpfully sent me a number of documents, included in which are the comments on the applicant's affidavit by Mrs. Mulvaney, who chaired the Tribunal and by her two colleagues. I have also now seen earlier correspondence from the solicitors acting for the Trust, and a number of other documents forwarded by the applicant, all of which I have read.
7. In relation to the applicant's application to adjourn the hearing, Mrs. Mulvaney makes the following observations:-

The claimant requested an adjournment on Friday 27 January 2006 in order to seek representation. The chairman asked the claimant if she had any idea how she might go about this and she did not. The tribunal considered the request but concluded that it should not be granted. Its reasons for reaching this conclusion were the fact that it was more than half way through the hearing at the time the application was made, that the case had commenced in 2004, that the claimant could have obtained representation prior to the hearing, that many of the respondent's witnesses had made themselves available for the hearing with some difficulty, that the claimant had no idea what steps she might take to obtain representation, and that the respondent might have grounds for an application for costs if an adjournment was granted. In view of the overriding objective and the consequent costs and delay of adjourning the proceedings at that stage, the tribunal considered that the hearing should continue without adjournment.

8. Slightly earlier in her comments, Mrs. Mulvaney says this of the hearing itself:

The Tribunal managed the proceedings in such a way as to ensure that the hearing was completed within the timescale that had been agreed during a prior case management discussion. At the commencement of the hearing a timetable was agreed with the claimant and the respondent's representative to ensure that each side had sufficient time to present its case and cross-examine the other's witnesses within the hearing time allowed. As was to be expected in a lengthy case, there was a great deal of evidence and it was necessary to manage the proceedings effectively. The claimant (in common with many unrepresented parties) had a tendency to give evidence rather than ask questions during cross examination, to repeat questions when she did not receive the answer that she wanted, and to become fixed on points that were not relevant to the issues. The chairman was sympathetic to her difficulties and did sometimes intervene to assist her by indicating how she might rephrase a question or by suggesting that she might move on when she was spending a disproportionate amount of time on points what were of little relevance. The chairman also reminded the claimant what the issues were and what evidence might be relevant to those issues. The chairman was mindful of the claimant's difficulties and does not believe that her interventions were oppressive or inappropriate.

9. Mrs. Mulvaney's comments are supported by the two lay members of the Tribunal, both of whom make it clear that the chair intervened to assist the applicant. Lest the applicant may think otherwise, it is by no means incumbent on lay members of a Tribunal to support the chair: to the contrary, if the chair of a Tribunal has behaved improperly or inappropriately it is not only expected but, in my experience, always the case that the other members of the Tribunal will support any properly articulated complaint in relation to a chair's conduct.
10. Against this background, it seems to me that the applicant has two insuperable obstacles in seeking permission to appeal against the EAT's decision. The first is that in refusing to grant an adjournment, the Tribunal was exercising a judicial discretion. Superior courts cannot interfere with the exercise of the discretion of the lower courts unless it can be shown that in exercising its discretion, the lower court committed an error of law. In practice, this means that the superior Tribunal can only intervene if the court at first instance took into account a relevant factor which it ought not to have taken into account, or left out of account a factor to which it should have given substantial weight.
11. The reference by the Tribunal chair to the overriding objective is, of course, a reference to rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which is designed "to enable tribunals and chairman to deal with case justly". By rule 3(2):

Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

12. Mrs Mulvaney's reference to the overriding objective shows that she was aware of all these matters, as does her response to the applicant's affidavit generally. The applicant was, of course, acting in person, and "ensuring that the parties are on an equal footing" does not mean ensuring that the unrepresented party obtains legal representation, or granting an adjournment to ensure that this occurs: what it means is that the Tribunal has a duty to ensure that unrepresented parties have a proper opportunity to put their case, and that the hearing is fair.
13. I can see nothing in this case to indicate that the hearing was in any way unfair to the applicant, and on the particular point of complaint, there is no doubt that the Tribunal was exercising a discretion when refusing the applicant's application for an adjournment. In my judgment, the reasons the chair gives for doing so are all perfectly proper, however, much the applicant may disagree with them; and there is no evidence that in refusing the application to adjourn the Tribunal was guilty of any error of law. It follows, in my judgment, that an appeal against the dismissal of the applicant's application would not stand a reasonable prospect of success, and that her application for permission to appeal must be refused.
14. I mentioned two insuperable obstacles. The second is that to which Pill LJ alludes in his reasons for refusing the application for permission on paper. The Tribunal found against the applicant on the facts. This is something which any applicant finds difficult to accept, but the task of the Tribunal is to hear the case, make findings of fact and apply the law to the facts as found. Neither the EAT nor this court can properly interfere with findings of fact made by a Tribunal, provided always that there was material upon which the Tribunal could properly make its findings. Reading the Tribunal's judgment leaves me in no doubt that the Tribunal was entitled to find as it did, however painful that may be to the applicant, and however much she may disagree with the findings.
15. Equally the fact that she has been partially successful before a second Tribunal is not relevant to the present case, nor is the fact that the applicant is convinced that the case against her was conducted on perjured evidence, notably the document produced by Cathryn Greaves dated 12 July 2002, which refers to a telephone conversation which the applicant says never took place. Even if this point was capable of being established (and it does not look as though it is) it would not, in my judgment affect the Tribunal's overall conclusions, and would not provide a proper basis for a re-hearing.
16. In the event, however, the point is academic, because the Tribunal was plainly entitled to refuse the applicant's application for an adjournment and for the reasons I have already given, an appeal to this court against that decision would not stand any prospect of success.
17. The applicant's application for permission to appeal to this court is, accordingly, refused.