England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		25 March 2014

1. LORD JUSTICE UNDERHILL: This is, remarkably, an appeal against a decision of the Employment Appeal Tribunal (His Honour Judge Peter Clark presiding) given as long ago as 3 October 2008. The background and the procedural history are complicated but for present purposes I can summarise them as follows.
2. The respondent to this appeal, Mrs Samantha Burmis (to whom I will refer as the claimant), was employed as a teacher at Aylesford School in Kent in 2001. She was asked as part of the appointment process whether she had any criminal convictions and she said she had not. That was untrue. She had in 1995 pleaded guilty in the Crown Court to one count of obtaining property by deception, one of attempting to do so and one of conspiracy to pervert the course of justice. She was sentenced to 18 months' imprisonment. To anticipate, I should also say that she was in 2012 prosecuted for concealing those offences when she applied for employment at Aylesford School, and also for a serious offence of attempting to pervert the course of justice. On 1 July 2013 she was convicted of those offences and on 2 August she was sent to prison for two years. She was released on home detention curfew about a fortnight ago.
3. To return to her employment at Aylesford, the claimant was dismissed with effect from June 2004 following allegations of misbehaviour, in which other colleagues were also involved, on a school trip. She brought proceedings in the Employment Tribunal, claiming unfair dismissal, victimisation and race and sex discrimination. The respondents to the proceedings were the school and, as regards the discrimination claims, a colleague, Mr Grosvenor, and the then acting headteacher, Mr Lawson, who is the appellant before us. It was part of her case that she had been the victim of sexual and racial harassment by Mr Grosvenor at earlier stages of her employment and that she had been included amongst those disciplined for what went wrong on the school trip because she had complained about Mr Grosvenor's conduct.
4. The claims were heard before an Employment Tribunal at Ashford for no fewer than 40 days between 7 November 2005 and 13 October 2006. The Tribunal's decision was reserved and a judgment was not sent to the parties until 11 October 2007. A great majority of the claimant's claims were upheld. Those against the appellant were stated in the judgment proper at paragraph 12 as follows:

"12. The third respondent unlawfully directly discriminated and victimised against the claimant on the grounds of her sex and race by:

12.1 failing to carry out a proper investigation into the claimant's allegations of sexual harassment and failing to instigate any and/or adequate action/disciplinary proceedings against the second respondent following the claimant's complaints about the second respondent's sexual harassment of her and false and unsubstantiated allegations that he had sexual intercourse with the claimant;

12.2 instigating disciplinary action against the claimant for making complaints about the second respondent;

12.3 suspending the claimant from work without adequate consideration and proper investigations of the allegations made against the claimant and without providing any and/or any adequate disclosure of evidence in support of and/or reasons for the suspension;

12.4 by encouraging and/or procuring the first respondent's employees, expressly and/or impliedly to refuse to accompany the claimant to the disciplinary hearing;

12.5 by treating the second respondent and Mr Crombie more favourably by not suspending them and allowing them to resign on more favourable terms and with adequate references;

12.6 failing to conduct a fair disciplinary process, including a fair investigation."

The matter was adjourned for a remedy hearing.

5. The Tribunal's reasons are enormously long -- some 284 pages in all, with a further 100 or so pages of appendices. The length of the hearing, the length of the delay before a decision and the length of the reasons are all matters of serious concern; but for reasons which will appear I need not say any more about them. Some well deserved strictures were expressed in the judgment of the Employment Appeal Tribunal.
6. It seems that during the Employment Tribunal proceedings the respondents had some reason to suspect that the claimant had a criminal record, because she was asked in writing prior to the hearing whether she had any convictions. She answered that she had not, and that answer formed part of her evidence to the Tribunal.
7. All three respondents appealed to the Employment Appeal Tribunal. The appeal was heard over three days in June 2008 and judgment was reserved. Within a few days of the hearing the school received more solid, although it appears not even then definitive, information about the claimant's previously undisclosed criminal convictions. In the course of inter-solicitor correspondence the claimant's solicitors on 28 August admitted that her evidence to the Tribunal about having no convictions was untrue. The respondents thereupon applied to the Employment Tribunal for a review of the decision under rules 33 and 36 of the Employment Tribunal Rules of Procedure on the basis of the claimant's own admission that she had given false evidence to the Tribunal.
8. The Respondents also applied to the Employment Appeal Tribunal not to proceed to judgment on the appeal before it could consider the submissions based on the claimant's admission that she had lied to the Tribunal. It declined to take that course. It gave no reasons, at least that I have seen, but I expect that it took the view that review rather than appeal represented the right vehicle for ventilating the issue. In its judgment handed down on 3 October it dismissed the appeal, save only as regards paragraphs 12.2 and part of paragraph 12.3 of the judgment, which it was conceded on behalf of the claimant could not stand because the uncontested evidence was that the decisions in question had been taken not by the appellant but by other members of the school management.
9. The appellant, although not the other respondents, sought permission to appeal to this court against that decision. Seven grounds of appeal were pleaded. One of them, ground four, relied on the fact of the claimant having lied about her previous convictions, and an application was made to adduce fresh evidence to that effect.
10. On 18 November 2008 Lord Justice Mummery refused permission to appeal on the papers. He observed, as regards the fresh evidence aspect of the appeal, that that was more appropriately dealt with in the review which had been commenced but had not yet been heard. However, at a hearing on 20 January 2009 Smith LJ gave permission as regards three of the grounds (numbers five, six and seven). She refused permission in relation to grounds one and two. As for grounds three and four, she adjourned the application pending the outcome of the review application in the Employment Tribunal. I must now turn back to that.
11. On 12 March 2009 at a case management hearing in relation to the review (and also, I think, in relation to the forthcoming remedy hearing) Employment Judge Wallis ordered the claimant to produce a number of documents in relation to her criminal record. When that order was not complied with she made an order dated 7 May 2009 by which the remaining parts of the judgment as against the appellant -- that is, 12.2 and 12.3-6 -- would stand dismissed unless the original order was complied with by 22 May. That order too was not complied with; and accordingly the entirety of the claim against the appellant was dismissed.
12. At the review hearing on 22 and 23 June 2009 the claimant sought relief against the consequences of that order. The Tribunal refused to grant relief. Its order reads:

"The application by the third respondent [that is Mr Lawson] for a review of the judgment sent to the parties on 11 October 2007 is granted to the extent that the judgment is varied by setting aside paragraphs 12.1 and 12.3 to 12.6 of that judgment and dismissing all of the claimant's complaints against the third respondent."

Although the language of variation is used, that was in substance a revocation of the earlier order of the Tribunal as regards the appellant. Revocation is one of the powers available to the Tribunal on review, and I will refer to it as such.

13. The claimant sought to appeal against both the original unless order and the Employment Tribunal's refusal to grant relief, but without success; and that avenue is now closed to her. The result is that there is no outstanding judgment of any kind against the appellant. It might be thought that he would not wish to pursue his appeal any further. But that was not the view that he took. He was not satisfied at having succeeded on purely procedural grounds and wanted a substantive decision that the findings of fact made by the Employment Tribunal underlying paragraph 12 of the judgment were wrong. Accordingly, the outstanding application to this court in respect of grounds three and four was restored, and on 29 November 2010 Smith LJ gave permission in relation to those also. At paragraph 6 of her short judgment explaining her reasons she said this:

"Mr Lawson is dissatisfied about with the review proceedings because, he says, the ET did not go far enough. It quashed the order against him but not the findings of discrimination. Those findings are important to him in his position as a headteacher. As a rule I would not be prepared to grant permission to appeal against findings of fact where there is no effective order against the appellant. However, I gave permission for the appeal to be set on foot at a time when there was an effective order against Mr Lawson. All that remains for me on today's adjourned application is to enlarge the scope of that appeal. It does not seem right to me that I should withdraw the permission to appeal already granted. The extension of the appeal to cover grounds three and four is plainly warranted by the fresh evidence now available."

14. That of course was over three years ago. It appears that the reason why the appeal has not come to a hearing sooner is that it was thought right to await the outcome of the prosecution of the claimant to which I have already referred, and her trial, as I have already said, was not until last July. Also, she has since then been in prison.
15. That is how we have reached this hearing. Mr Stephen Whale of counsel appears for the appellant, as he has done since the early stages of the litigation. The claimant has not appeared. She made an application last week for an adjournment on the basis that she had other engagements which it was impossible for her not to attend, but that application was dismissed.
16. We asked Mr Whale to address first the question of whether this court had jurisdiction to entertain an appeal where the underlying order has been revoked. It is well established that, as it is succinctly put in the heading to paragraph 52.0.13 of the White Book, "appeals are against orders not reasoned judgments". That proposition is clearly supported by the cases cited in the following text, of which the most recent and authoritative is the decision of this court in Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Limited [2002] EWCA Civ 1143; [2003] 1 WLR 307. (I should note that the commentary in the White Book refers to the jurisdiction conferred on the Court of Appeal by section 16 of the Senior Courts Act 1981; but the language of section 37 of the Employment Tribunals Act 1996, which confers the jurisdiction to hear appeals from "any decision or order" of the Employment Appeal Tribunal, is not substantially different.)
17. On the face of it this appeal is plainly caught by that rule. The order against which the appellant originally appealed has been revoked. The challenge which he wishes to pursue is against the underlying findings of fact. Those are not free-standing decisions; they are simply parts of the Tribunal's reasoning.
18. In response to that difficulty Mr Whale made essentially three points, which I will consider in turn.
19. The first is that even though the order of the Employment Tribunal had been revoked the order of the Employment Appeal Tribunal had not, and so there remained, albeit adventitiously, a jurisdictional hook for the appellant. I cannot accept that argument. The substance of the matter is that the appeal is against the decision of the Employment Tribunal. If the appeal were to proceed and if Mr Whale got what he wanted it would be the quashing of the decision of the Employment Tribunal. That is indeed clear from the draft order appended to his skeleton setting out the relief which he seeks. Paragraph 3 of that order reads:

"Judgment and reasons of the Employment Tribunal signed by the chairman on 28 September 2007 (sent to the parties on 11 October 2007) set aside together with all other judgments, reasons, orders and findings of the Employment Tribunal and the Employment Appeal Tribunal adverse to the appellant."

Objection might be taken to various aspects of that drafting, including the fact that its effect, if taken literally, would be to set aside the judgment even against the other respondents. But for present purposes I simply make two points. The first is that I do not see how this court can set aside a judgment which has already been revoked. Secondly, the only part that adds anything to the situation as it already is is the two words "and findings" but that of course comes up against the rule to which I have already referred.

20. Mr Whale's second argument depends on how the Employment Tribunal at the review hearing dealt with a submission on behalf of the school that if the claims against the appellant were struck out the school, whose liability was necessarily vicarious, could not be liable either. The Tribunal said at paragraph 62 of its decision:

"the Tribunal noted that the claims against the third respondent were dismissed for a technical reason (that is the claimant's failure to comply with the unless order) and not because the Tribunal had made a decision to vary the judgment based on any grounds for review. The findings of the Tribunal remain undisturbed. It is only the claims against the third respondent that have been dismissed, thereby excluding him from any personal liability."

The Tribunal concluded, therefore, that the first respondent -- that is, the school -- remained liable for the successful claims against it and vicariously liable for the actions of the third and second respondents. Mr Whale fastened on the statement that "the findings of the Tribunal remain undisturbed" and submitted that since they were still effective as the basis of legal liability against the school they were still appealable. But that does not address the difficulty. No doubt they remained in principle appealable by the school (although they were not in fact appealed) or, perhaps more accurately the judgment based on them was appealable but the fact remains that there is no surviving judgment against the appellant. That distinction is fundamental. At one point Mr Whale appeared to be submitting that if he succeeded on this appeal in having those finding set aside the judgment against the school would have to be set aside too. That cannot be right, in circumstances where there is no appeal by the school; but the submission illustrates the need to focus on the actual judgment of the Tribunal.

21. Thirdly, Mr Whale relied on the fact that Smith LJ had given permission having considered this very point. But he disavowed any submission that we were bound by her decision, and I have to say for my part that I respectfully disagree with her approach, which was of course made in the context of a short ex parte application. The fact that she had already given permission in respect of some grounds, at a time when the order of the Employment Tribunal had not yet been revoked, does not in my view mean that the position could not, and indeed should not, have been revisited when that had changed.
22. I am not therefore persuaded that we have jurisdiction to entertain this appeal. But even if, as Mr Whale submitted, we had a discretion to do so, I do not believe it would be right to exercise it in the appellant's favour. The fact is that he took a decision -- a perfectly understandable and reasonable decision -- to have the decision of the Employment Appeal Tribunal revoked when that opportunity arose as a result of the claimant's procedural defaults, and to have the claims against him dismissed on this basis. But, having taken that decision, I do not think that he can have it both ways and ask the court to review the substantial merits or the reasoning of the decision which has in that way been revoked.
23. I would add that there would also be a real difficulty for the court, in that the claimant would have no interest in arguing the other side, since, whatever happened, there would be no order in her favour. The exercise would be inherently one sided. That of course reflects back into the jurisdiction argument. Another illustration of the same difficulty is to consider what would happen if we were persuaded that the Employment Tribunal had indeed erred in law in some or all of the respects pleaded but the relevant issues were not of a kind that could be decided in this court. Normally in such a case we would remit, but what would we be remitting here? The claimant's claims against the appellant have been dismissed, and I cannot see how we could direct the Employment Tribunal to reconsider findings of fact unattached to any live claim.
24. I do have some sympathy with the appellant. The course which these proceedings have taken means that, albeit as a result of a procedural choice made by him, he has had no opportunity to challenge on appeal the adverse findings made against him. On the other hand, he is fully entitled to say that there is no subsisting decision that he acted discriminatorily against the claimant in any way. He can also point out that most of the grounds of appeal that he wished to argue were held by Smith LJ to be arguable and that the claimant has since been convicted by a court of serious dishonesty. That may not be all that he would like, but it is not insubstantial; and it is in any event all that I believe that this court can give him.
25. I would accordingly dismiss this appeal on that preliminary ground and decline to consider the substantive issues raised in the notice of appeal.
26. LORD JUSTICE KITCHIN: I agree.
27. LORD JUSTICE TOMLINSON: I also agree.