England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th June 2012

Lord Justice Elias:

1. There are two linked appeals here. The applicant appeals against the dismissal by Langstaff J by an order made on 5 October 2011 pursuant to rule 3(10) of the Employment Appeal Tribunal Rules 1993 of certain issues raised in the two appeals.
2. Of two appeals which the applicant made to the Employment Appeal Tribunal, this is the fourth occasion in fact on which the applicant has sought to contend that she has an arguable case. She failed at the sift stage in the EAT before HHJ Richardson and then before the President in the orders she now challenges. The single judge then refused her application for leave to appeal to this court on paper, and she renews the matter orally before me today, as she is entitled to do.
3. The first appeal relates to a claim for race discrimination brought by the applicant in 2007. It relates to a case management order made in relation to that claim by Employment Judge Grewal on 4 February 2011. That case management order dismissed the applicant's applications to transfer the case from London Central to a tribunal outside London and also for specific disclosure of certain telephone records. The second appeal related to claims of race discrimination and victimisation brought in 2010. The appeal was against an order made at a pre-hearing review on 4 February 2011, again by Employment Judge Grewal, which struck out those claims in their entirety on the grounds that they had no reasonable prospects of success.
4. I will only set out the background very briefly. The applicant was a senior Crown prosecutor employed by the CPS. The FDA, the first respondent, is a trade union and Russell Jones & Walker, the second respondent, are the solicitors who were instructed by the FDA. The first claim to which this application relates was brought against the FDA only. The second was brought against both the FDA and Russell Jones & Walker.
5. The 2007 case, as I will call the first claim, was a race discrimination case brought against the FDA for allegedly failing properly to assist and represent the applicant in a long-standing dispute she had with her employer. The bulk of that claim was struck out in early 2008 on the ground that the claims were out of time, but one particular complaint was allowed to proceed. That was a case against a Mr Zollner, elected representative of the FDA, who it was submitted had delayed obtaining representation for the applicant for a remedy against her employer. The FDA's defence was that he attempted to contact the applicant but for some time she failed to return his messages.
6. The case was transferred from London South to London Central following a request from the FDA, as one of the members, Mr Whiteman, whom it was envisaged might be a witness in the action, sat as a lay member of the tribunal for London South. The applicant sought to have the case transferred from London Central to a tribunal outside London because she thought that, even in London Central, the fact that Mr Whiteman was a lay member who had trained with lay members of London Central was sufficient to constitute the appearance of bias.
7. The matter was considered by the judge, who rejected the submission. She commented:

"It appears that Mr Whiteman will probably not be involved in this case, and any member in this region who either knows any of the witnesses in the case or was a member of the FDA will declare that connection and will probably not sit in this case. I do not see any good reason for transferring the case yet again, thus delaying the case further still (the case commenced in 2007)..."

8. It is well established in this court that case management decisions of this kind are, par excellence, matters which are essentially areas of discretion for the Tribunal. I accept, of course, that where there is clear and proper evidence of bias – by which I include the perception of bias - satisfying the legal test then it is appropriate to intervene, but I am not at all satisfied that there is an arguable case of such bias in this case. In fact, it transpires that Mr Whiteman did not give evidence.
9. The applicant submits before me today that, nonetheless, it was unfair because he was sitting in the Tribunal at all times as a member of the FDA team, if I may put it like that, and this in itself created an appearance of bias sufficient to invalidate the decision of the Tribunal. Like all the other judges before me, I wholly reject that. I do not think such a limited link, the fact that there may have been common training, is anything like sufficient to constitute an appearance of bias which might invalidate this decision. Mr Whiteman was neither a party nor, in the event, even a witness. As the Tribunal judge said, if in fact he was known to a lay member or any of the members of the Tribunal, then of course it might be appropriate that they did not sit, but that is not suggested.
10. It is also suggested to me today by the applicant that the case should have been transferred for a different reason, namely that she called as a witness a woman who is a trade union official, called Mrs Bhardwaj. Mrs Bhardwaj, it seems, was in some kind of dispute with the office at London Central. She was, and is still I believe, pursuing a case of alleged bias or at least perception of bias. I do not know any of the details of that case. Suffice it to say, that that was not an issue that was before the judge when she gave her decision on 4 February 2011. I assume that the applicant raised this point again when the Tribunal opened and heard the substantive case, as it has now done. I am not in a position to know whether the fact that Mrs Bhardwaj was a witness was raised before the Tribunal or how they dealt with the matter if and when it was raised afresh before them. That is not before me and I cannot comment on whether Mrs Bhardwaj's involvement may or may not have affected the matter, but I am satisfied that, on the material before Employment Judge Grewal at the time, there is no question of this decision being outwith the proper jurisdiction of the Tribunal judge.
11. The second order that she made was to require the parties to disclose to each other any relevant documents, that is any documents relevant to an issue in the Tribunal, whether or not it was adverse to a party's case. The applicant contends that the Tribunal ought to have required the FDA to disclose certain telephone records to demonstrate their contention that there had been telephone calls to her on various telephones. The judge was not willing to make that order.
12. Again, this is a matter of discretion for the judge. In my judgment, it was plainly a satisfactory order. One does not normally in advance and without any indication of what documents are to be disclosed make a specific order for discovery, but one relies on the parties, both of them, to act with integrity and to provide such documents as will be relevant to the case before the Tribunal. On any view, it was premature for such an order to be made. Tribunals do occasionally make orders in the course of proceedings when it emerges that potentially relevant documents do exist which have not been disclosed, but the case management hearing was not an appropriate time to make such an order and there cannot properly be said to be anything wrong with the way in which the Tribunal judge dealt with that matter.
13. The second matter relating to the 2010 case is concerned with a letter written by Russell Jones & Walker, acting on the FDA's instructions. They pointed out that they regarded the 2007 case as entirely misconceived and they reserved the right to seek costs. They also referred to an encounter between the applicant and Mr Whiteman of the FDA at the employment tribunal in relation to an entirely separate matter. They happened to bump into each other. It seems rather embarrassing, not least because the counsel acting for the FDA in that matter was also the counsel whom the applicant had instructed in relation to her case against the FDA. It was undisputed that there was a conversation between Mr Whiteman and the applicant. Mr Whiteman alleges that the applicant told him that she would email him her telephone number and that she had four mobile phones no longer charged or used. The applicant contends that that was never said.
14. The letter sent by Russell Jones & Walker referred to the fact that a number of attempts had been made to contact the applicant and that therefore the delay, the FDA would submit, was of the applicant's own making. They added that:

"We raise this matter now in light of the comment she made on 10 March at the recent London Central employment Tribunal...to Paul Whiteman of the respondent."

The applicant contended that this was an act of victimisation. That matter was also considered by the Tribunal and they rejected it.

15. Employment Judge Grewal considered the principles set out in St Helens v Derbyshire [2007] IRLR 540, BMA v Chaudhary [2007] IRLR 800 and Bird v Sylvester [2008] IRLR 232. She referred to the fact that, if a party acts honestly and reasonably, then it ought to be able to take steps to preserve its position in discrimination legislation. Applying those principles, the judge was satisfied that there was no improper observation made in this letter. When the case came before the Employment Appeal Tribunal, the President agreed with that conclusion. It was a warning about the fact that the FDA would seek its costs, which in fact is typically given in a case like this, and indeed, if costs are sought without giving such a warning, that is often a point of some criticism.
16. The fundamental point made by the applicant is this. She says that, without determining whether or not the conversation did take place, as relied upon by Mr Whiteman, this was not an honest letter. That, with respect, seems to me to be misconceived. What the union is doing through its solicitor is setting out what its case is going to be and why it considers its case will be successful. Typically, when letters of this kind are sent, certain assertions are made which may or may not turn out to be true or false. That is for the Tribunal to determine. Ms Aziz could quite properly say, as she did, "I do not believe that that was the effect of the conversation. That is a simple lie", in which case it does not influence her one jot in her decision whether or not to drop the case. Russell Jones & Walker were setting out what the FDA's case was, namely that any delay had not been as a result of their failure to try and contact the applicant, but by her failure to respond to them. That was what the Tribunal ultimately had to determine. What was said in the Tribunal was potentially evidence relating to that matter. It was not, however, an assertion or allegation which could properly be said to be harassing anybody.
17. Accordingly, in my judgment, the Tribunal judge was right to say that this case had no prospect of success on that ground. The only relevant material was the letter itself and that was what was focused upon by the Tribunal and again by the President, when he considered the matter at the Employment Appeal Tribunal.
18. Like the other three judges therefore who have considered this matter, I reach the same conclusion, that the judge was right to dismiss this application. In my judgment, it was, with respect, misconceived, and the notion that the letter could become harassment if Mr Whiteman's assertion of the conversation proved to be false seems to me to be wholly misconceived. I have focused on that aspect of her argument particularly because that is the matter on which Ms Aziz has put most of her firepower this morning.
19. For these reasons, and I know she will be disappointed in the outcome, I am satisfied there is nothing in these grounds of appeal. I would only suggest to Ms Aziz that she might also recognise that to go through and have a full hearing in this court, which in my view would be bound to fail, would involve her in very heavy costs and would be doing her no favour in the long term.

Order: Applications refused