England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Langstaff (President), Mr C. Edwards and Ms N. Sutcliffe
Appeal No: UKEAT/0160/11/DM, BAILII: [2012] UKEAT 0160_11_2901

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2013

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. Sir David Keene refused permission on the papers on 4 July 2013. The applicant, who was born in Pakistan and is a Muslim, is Khalid Khan, a former employee of Royal Mail Group Limited ('RMG'). He had been employed by RMG since 1979 in various accounting capacities. He is now no longer employed by RMG, having been dismissed in April 2013.
2. Whilst still an RMG employee, the applicant brought employment tribunal complaints against RMG and three individuals (also RMG employees) for, amongst other things, 24 complaints of discrimination and harassment on the grounds of his national origin and religion. The incidents relied upon are alleged to have occurred over a period of four years. Following a 13-day hearing before the Central London Employment Tribunal (Employment Judge Pontac, Ms W. Cogger and Mr J. Bartell), the ET dismissed all his claims by a judgment and for reasons sent to the parties on 8 November 2010. The applicant represented himself at the hearing. The respondents were represented by counsel, Miss Tharoo.
3. The applicant presented an appeal at the Employment Appeal Tribunal against the ET's adverse conclusions on all 24 allegations and alleging that the ET had been biased and that the hearing had been unfair. At the sift stage, his appeal was rejected under rule 3(7) of the Employment Appeal Tribunal Rules 1993 as not raising grounds having any reasonable prospect of success. In March 2011, he exercised his right to file an amended notice of appeal under rule 3(8) of the Rules, which was referred to a preliminary hearing for a determination as to whether any of the grounds it raised should go forward to a full appeal on notice to the respondents.
4. For the purposes of the preliminary hearing, the applicant had the advantage of representation under the ELAAS Scheme by an experienced employment lawyer, Stephen Levenson. The result was the use at that hearing of a new skeleton argument in place of its predecessor, such argument being dated 25 August 2011 and, I presume, drafted by Mr Levenson, although with the applicant's authority: the contrary has not been suggested. Paragraph 3 withdrew the applicant's appeal in respect of 13 of the 24 allegations, leaving just 11 live issues. Paragraph 4 withdrew the applicant's assertions that the ET was biased, that EJ Pontac had conducted the hearing unfairly and that there had been any indirect discrimination.
5. The EAT, at the preliminary hearing, directed the appeal in relation to the 11 allegations to proceed to a full hearing, as it did on 7 December 2012, before Langstaff J (the President), Mr C. Edwards and Ms N. Sutcliffe. Langstaff J's reserved judgment, written on behalf of the EAT, was handed down on 29 January 2013. It gave the EAT's reasons for dismissing the applicant's appeal on all grounds.
6. The applicant had no legal representation at the hearing of his appeal: he once again appeared in person. Miss Tharoo again represented the respondents. The reversion to self-representation resulted in the applicant's application, made just two weeks before the hearing of the appeal, to withdraw the concessions made on his behalf at the prior preliminary hearing and to resuscitate his case in respect of the 13 allegations that he had then withdrawn. In the EAT's separate judgment delivered on 7 December 2012 and giving the reasons for refusing to permit such a change of case, Langstaff J noted that it was not clear how much wider, if at all, the applicant's application also sought to go, although apparently he at least denied any wish to re-open his bias allegations. The EAT understood, however, that he did seek to open, or re-open, a case in relation to alleged document fraud and perversion of the course of justice.
7. Whether the EAT should (and, if so, to what extent) or should not have permitted the applicant to withdraw his earlier concessions and advance his appeal on wider grounds was a matter for its discretionary judgment. Langstaff J explained in paragraphs 11 to 17 why the applicant should not be permitted to withdraw his previous concessions and to advance his appeal on the wider grounds that he wished.
8. On this renewed application, the application wishes to challenge before the full court the EAT's refusal to allow him to re-open before the EAT the case he had abandoned at the preliminary hearing. He wants to resurrect his criticisms of the conduct of the hearing before the ET. He asserts that part of the respondents' evidence was perjured. He asserts that in some respects the proceedings were conducted irregularly and unfairly. He complains that on the last day of the hearing RMG produced a new, and false, policy document which it was allowed to use. When I asked him to show me a copy of it, the applicant said that whilst he had been provided with a copy at the hearing before the ET, he could not show it to me because he had left it behind at the tribunal building at the conclusion of the hearing.
9. Every complaint the applicant has under this head must be one of which he was aware when he advanced his original and amended notices of appeal to the EAT. I have explained how the outcome was that by 25 August 2011, having had the benefit of legal advice, he withdrew all complaints about the conduct of the proceedings before the ET and confined himself to a criticism of the way in which the ET had dealt with just 11 of his original 24 allegations of harassment and discrimination. To the extent that he then sought to withdraw these concessions (save that relating to bias) at the hearing before the EAT on 7 December 2012, Langstaff J gave cogent reasons why, as a matter of discretion, it would be unjust to allow him to do so. If any of such concessions were not the subject of the application before the EAT, they certainly cannot be raised now, for the first time, in the Court of Appeal: the EAT cannot have been wrong not to rule on a case which was not made to it.
10. It is, however, apparent that the main criticisms about the fairness of the procedure before the ET that the applicant advanced to me were the subject of his application to Langstaff J. Langstaff J's reasons for refusing to allow the applicant to go back on his earlier concessions reflected a proper and sound basis for the EAT's exercise of its discretion in this respect. In my judgment, it is not seriously arguable that that exercise was flawed in any way – that is, by taking matters into account that it should not have done, or not taking matters into account that it should have done; and so there is, I consider, no prospect of success on an appeal to the full court against the EAT's refusal to allow the applicant to go back on his earlier concessions. I refuse permission to the applicant to appeal on any of these matters.
11. As regards the disposition by the EAT of the 11 allegations of harassment and discrimination that were pursued at the hearing of the appeal, I have more concern. The question raised in respect of those allegations was whether the ET correctly directed themselves as to the burden of proof and whether, in respect of any of such allegations, it erred in law in its rejection of them and gave sufficient reasons for doing so. Whilst the EAT's judgment upheld the ET's approach in relation to all the allegations, I regard it as arguable that in one or more of these respects the ET's conclusions were unsatisfactory.
12. I propose therefore to give the applicant permission to appeal against the EAT's order of 29 January 2013, but the only grounds on which he may do so are that, in rejecting his claims in respect of one or more of allegations 24, 23, 22, 20, 19, 15, 10, 9, 8, 4 and/or 2, the ET misdirected itself as to the applicable burden of proof, in consequence arrived at impermissible conclusions and/or gave insufficient reasons for its conclusions and that the EAT was wrong in failing so to hold. Permission to appeal on all other grounds advanced by the applicant is refused.
13. I direct that the appeal, on the limited grounds permitted, be heard by a constitution of three Lords/Lady Justices, one of whom shall have experience in employment law. The time estimate for the hearing of the appeal is one day.