England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Serota QC, Mr C. Edwards, Mr J. Mallender
Appeal No: UKEAT/0107/13/DM

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/02/2014

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. It is an employment case in which the claimant/applicant, Mr Abid Ali, has represented himself at all stages. He was formerly employed as the business manager of Washwood Heath Technology College. He describes himself as of Pakistani racial origin. He brought his claims against the governing body of the college, Mr Anstey (the chairman of such body) and Birmingham City Council. He made claims based on direct race discrimination, detriments arising from the making of protected disclosures, unfair dismissal for having made such disclosures, victimisation for having carried out protected acts, and other money claims I need not detail. His claims were heard over nine days in September 2011 before the Birmingham Employment Tribunal (Employment Judge Dean and members) ('the ET'). The outcome was that, as explained by the ET in a full and detailed 63-page judgment and reasons sent to the parties on 30 April 2012, and save for minor successes on the 'other money claims' to the tune of about £6,000, all his claims failed and were dismissed. In accordance with the practice commonly adopted by claimants representing themselves, the applicant sought a review of the ET's decision, his application being based on grounds explained over some ten single-spaced pages and accompanied by many documents. The ET refused the application.
2. The applicant also appealed to the Employment Appeal Tribunal ('the EAT'). His appeal was rejected at the 'sift' stage on the basis of an assessment by the sifting judge that the grounds disclosed no arguable error of law by the ET such that an appeal would have any reasonable prospect of success. The EAT of course only has jurisdiction to hear appeals against decisions of the ET on errors of law. That restriction on appeals to the EAT is something that many litigants acting in person do not understand, and experience shows that they commonly adopt the mistaken view that any adverse conclusion by the ET, including on matters of fact, is open to challenge before the EAT; and, if they fail there, also before the Court of Appeal. That is, however, not the position. The ET is the fact-finding tribunal and neither the EAT nor the Court of Appeal will re-consider its findings of fact. There are, exceptionally, cases in which an appellant may be able to show that the ET's findings of fact were perverse, and if such a case can be made out, that will show an error of law on the part of the ET. Such cases are, however, truly exceptional, the burden of showing perversity is a very heavy one, and it is rarely discharged.
3. In the event, the 'sift' decision refusing the applicant's appeal was sent to the wrong address, the matter was referred back to the EAT, at which the judge who had originally dealt with the matter decided instead to refer the applicant's appeal for a preliminary hearing before a full panel of the EAT. Preliminary hearings are ones at which the respondent is not represented, and the sole function of the EAT panel is to decide whether any of the proposed grounds of appeal discloses a sufficiently arguable error of law by the ET that merits being heard at a full appeal on notice to the respondents. Thus, at any such hearing, the proposing appellant is not faced with oral adversarial argument from the proposed respondents. He has the floor of the court to himself and merely has to persuade the appeal panel that he has a properly arguable case. The outcome of the applicant's preliminary hearing was, however, that the EAT panel (His Honour Judge Serota QC and members) was unimpressed that the applicant had identified any arguable error of law by the ET and so his appeal was dismissed.
4. The applicant then, as is again usual for unsuccessful claimants acting in person, sought permission to appeal to the Court of Appeal. Lewison LJ refused permission on the papers on 23 July 2013. In his short reasons, he recorded that the ET had directed themselves correctly on the law and had found the facts against the applicant: in particular, they had found as facts that the applicant had not made the claimed protected disclosures in good faith, had not had a reasonable belief in their accuracy, had suffered no detriment and had not been unfairly dismissed. That summary comprehensively encapsulated why, in Lewison LJ's view, an appeal would have no prospect of success. Lewison LJ noted, however, that there was also a question as to whether the ET had had jurisdiction to entertain certain claims based on allegedly protected disclosures made by the applicant after the termination of his employment. But he said that that question was not the subject of the applicant's appeal to the EAT and so could not be raised in the Court of Appeal. He added that it was also impossible to see how the point could have made any difference to the outcome of the case before the ET, given the clear findings of fact that the ET had made.
5. The applicant's renewed, oral application for permission came before me. The outcome of my prior reading of the papers in preparation for the hearing was that I was unclear as to the bases on which the applicant was claiming that the ET had erred in law, and so I afforded him the entirety of the time ordinarily allotted for such applications (in fact, I allowed him an extra 15 minutes or so) to explain to me the nature of the main points he wished to advance on any appeal. I then reserved my judgment so as to consider whether any of the applicant's passionately advanced criticisms of the ET's decision identified any arguable error of law that merited the giving of permission to appeal.
6. The first point the applicant raised was the jurisdiction point to which Lewison LJ referred, namely that relating to post-dismissal protected disclosures. He claims to have made such disclosures in February 2010, which followed his dismissal but preceded the hearing of his appeal against his dismissal. He referred me to page 58 of the ET's reasons, where the ET said that it did not have jurisdiction to consider complaints that were reliant on disclosures made after the termination of his employment. The ET added that the disclosures were 'not connected with the events leading to the termination of the claimant [sic] employment'.
7. Judge Serota, in paragraph 7 of his judgment for the EAT, also referred to this question. He noted that the applicant asserted that he had suffered detriment for his February disclosures and that the ET considered that it had no jurisdiction to hear such claims. He continued:

'… These allegations included what was said to be the improper hiring of Ms Mabey's son as an employee and reimbursement to her of the sum of £300 for glasses she had purchased; I need not say anything further about these matters because the Employment Tribunal's decision [is that it] had no jurisdiction to entertain the complaints and is not the subject of the appeal.' (My emphasis)

That judgment was an oral one, delivered ex tempore following the hearing of the applicant's submissions on the preliminary hearing. When, however, Judge Serota came to approve the transcript of his judgment, he added a footnote to the passage just quoted, reading: 'Since delivering this judgment my attention has been drawn to Onyango v. Berkeley [2013] IRLR 338 which suggests there is jurisdiction in determining such claims.'

8. The applicant assured me that he did advance a challenge before the EAT to the ET's jurisdiction decision. He referred me to sub-paragraphs 1 and 2 of paragraph 7 of his grounds of appeal. Nowhere, however, does paragraph 7, including in sub-paragraphs 1 and 2, criticise the ET's point that it had no jurisdiction to entertain claims based on post-dismissal protective disclosures. Paragraph 7 is a stream of generalised assertions that do not include any reference to this point. It is largely focussed on a case management direction made at a hearing of 23 May 2011, at which the applicant says the parties were precluded from referring at the substantive hearing to the applicant's former employment history with Birmingham City Council. The applicant's assertion is that, despite this direction and his own objections, the ET at the substantive hearing allowed the respondents to cross-examine him on such matters. His point seems to have been that he was nevertheless not allowed, or at any rate not able, to adduce his own evidence of these matters, whereas had he been able to do so they would have made a material difference to the outcome.
9. Whatever the merit of that point, which the applicant repeated to me and to which I shall return, paragraph 7 does not, however, raise the post-dismissal protected disclosure point. The applicant said, however, that his skeleton argument before the EAT did so, and he showed me the relevant part, which included a reference to this court's decision in Woodward v. Abbey National [2006] EWCA Civ 822, which supports the proposition that a claimant can bring a claim for post-employment detriment arising from detrimental retaliation arising from a protected disclosure made during the currency of the employment. That is not, however, the applicant's case, where the disclosure was made after the termination of the employment, although Ward LJ, at [67], left open the possibility that post-employment disclosures might entitle the former employee to a remedy. Woodward was not, therefore, authority supporting the applicant's proposition, although nor did it show that it was wrong in principle.
10. Nevertheless, although the point was raised in the skeleton argument, it is far from clear that it was argued orally to the EAT, or that the applicant actually referred the EAT to Woodward and placed any reliance upon it. If he had done so, it appears to me almost inconceivable that Judge Serota could have said, as he did in paragraph 7, that the jurisdiction point was 'not the subject of the appeal'. It is also inconceivable that, if the point had been argued and Judge Serota had then said what he did in his oral judgment, the applicant would not have pointed out Judge Serota's error at the conclusion of his judgment and asked him to deal with the point. That is what any professional advocate would have been done – and would have been entitled and expected to do – and the rules for litigants in person are no different. For such a litigant to remain silent and conclude that his only remedy is to go to the Court of Appeal makes no sense. Moreover, any appeal to the Court of Appeal against an order of the EAT can also only be made on the basis of an error of law by the EAT. If this point was advanced in argument before the EAT, the inference is Judge Serota simply did not understand that it had been. Any such misunderstanding, which resulted in Judge Serota failing to deal with the point, cannot in my view be characterised as an error of law.
11. In any event, there is in my view no merit in the point. Even if the ET had jurisdiction to entertain a complaint based on the applicant's post-dismissal protected disclosures, Lewison LJ explained why it could have made no difference on the facts. The ET devoted itself to a consideration of the facts of the February 2010 disclosures in paragraph 85ff of their reasons. They found, as is obvious, that the investigation and handling of those complaints were not connected with the matters in respect of which the applicant had been disciplined and dismissed and in respect of which he sought to appeal the dismissal decision. They explained, in paragraphs 89 to 92, that following investigations into the three concerns the applicant had raised, Birmingham City Council was satisfied there was insufficient evidence to substantiate them. The ET concluded its consideration of these matters as follows:

'94. In respect of the later disclosures, the claimant suggested that he wanted a full audit undertaken because he considered the investigation incomplete and had his claims been investigated properly, he may have been reinstated at the appeal. We remind ourselves that we do not have jurisdiction to consider complaints that an individual other than a worker or an employee can present a complaint of detriment. The respondents following termination of the claimant's employment did not wait for the final conclusion of the Audit Commission before reaching their determination on the appeal against the termination of the claimant's employment. The claimant in answer to questions raised by the tribunal has confirmed that he does not assert that the respondents in this case, as an act of victimisation failed to investigate the later whistle blowing which the claimant seeks to assert was a protected disclosure. We have heard no evidence to suggest a connection between the treatment of the investigation of his subsequent allegations of whistle blowing that were undertaken either by the District Auditor or the Audit Commission, that the investigations were not independent and there was no evidence to suggest that they sought to legitimise or cover up inappropriate conduct by any of the respondents. Moreover, even if there was truth in the allegations which the investigations conducted after the claimant's employment was terminated, found there was not, the disclosures and further examples of whistle blowing by the claimant occurred after the employment had been terminated and we do not have jurisdiction to entertain claims regarding them. In light of the investigations we are satisfied that, even had the Disciplinary Appeal been deferred, it would not have presented any additional information that would have caused the Disciplinary Appeal decision to have been any different.'

12. I read the essence of that as meaning that a pre-appeal investigation of the post-dismissal disclosures would have made no difference to the outcome of the appeal, in the sense that nothing would have been discovered that would have affected the position. It was, I presume, these findings which caused Lewison LJ to say what he did as to the relevant facts as to the post-dismissal disclosures having been found against the applicant.
13. In my judgment, there is therefore no basis here for the giving of permission to the applicant to appeal on the post-dismissal protected disclosure point. First, I am not satisfied that it was raised as a ground of appeal before the EAT; and, if it was not, it cannot be raised in this court. Second, if it was raised, it is apparent that the EAT did not understand that it had been raised, and it was no error of law for the EAT not to deal with a point that it did not realise had been argued before it. The applicant's remedy in that circumstance was not to seek to appeal on the point to the Court of Appeal, but to point out to the EAT that it had failed to deal with the point and ask it to do so. The practical solution was simple, but the applicant did not take it. Third, there is anyway no future in the point because the ET's findings show that the disclosures caused no adverse outcome to the appeal decision.
14. The applicant's second point raised before me was related to the first point, and does not call for separate consideration. His third point went to the one he had referred to in paragraph 7 of his grounds of appeal to the EAT, namely that (in short) whereas he said the CMD of 23 May 2011 had restricted the scope of the evidential inquiry at the substantive hearing, the respondents in their evidence nevertheless trespassed into the restricted territory; and, despite the applicant's objections, were allowed to do so. He sought to remedy the position by adducing his account of the relevant events in his submissions to the ET on his review application. His complaint is, I understand, that he regarded the ET's handling of this matter as procedurally unfair because he did not have the opportunity of adducing evidence at the ET hearing that would vindicate his conduct in his previous employment.
15. In connection with this ground of appeal, the applicant also complained that the respondents had been allowed to rely on what he called a 'manufactured' document before the ET. He showed me that the document on page 43 of the bundle had, unlike that on page 41, no paragraph 8.4; and he said that various paragraphs on the page 41 document had been manufactured. He had complained about the serving of halal meat with ham and alcohol, yet the manufactured document said he was being malicious. He said this was all fudged up before the ET, that the ET did not accept that the document had been manufactured, nor did it refer to it in its reasons. He said the ET's approach to his case had been poisoned by a manufactured document.
16. If I were to give permission to the applicant to appeal, this court, on the hearing of the appeal, would be in no position to make primary findings of fact about the respondents' reliance on allegedly manufactured documents. The ET made no finding that the respondents did so and, by inference, is to be taken as not regarding any of the documents in evidence as having been manufactured. This particular basis of challenge is, therefore, nothing more than a bid by the applicant to challenge the ET's factual conclusion to that effect. That is just the sort of ground that cannot found an appellate challenge to either the EAT or the Court of Appeal. Moreover, there is no reference in the EAT's judgment to any point about manufactured documents having been taken before it and so it cannot be taken now.
17. As for the point based on the respondents' alleged departure from the CMD of 23 May 2011, this was argued before the EAT, which it commenced to deal with at paragraph 8ff, and to which it returned at paragraph 32ff. The EAT pointed out that the CMD in fact included no such evidential restriction as the applicant asserted; but it was anyway not impressed there was any substance in this head of complaint. Put shortly, it concluded that it would have been wrong for the ET to have allowed the applicant to adduce evidence related to his previous employment, and there was no procedural unfairness in the ET's handling of the case. The EAT said:

'33 … It seems to us that it would have been wholly wrong for the Employment Tribunal to go on to investigate matters going back to 2003 which had nothing to do with the particular supporting allegations that were made in the instant case. It would be quite inappropriate to trawl through this volume of material to show that, as the Claimant asserted, he had always acted in good faith and to rebut the suggestion he might have acted in bad faith or did not believe in the truth of his allegations.

34. There was no substantive unfairness, the Employment Tribunal found that the Claimant had been indiscriminate in circulating a serious allegation to subordinates and other persons who had no legitimate interest in receiving it, and had been insubordinate in relation to the cancellation of interviews. It is important that we record that although the Claimant has made serious allegations of cover-ups, discrimination, victimisation going back to 2003, it has been no part of his case that there had been a continuing act of discrimination or victimisation against him. Although he has made allegations of cover-ups and that the Respondent intended to dismiss him long prior to the protected act of which he complains, there is no reference to such matters in his ET1. For example, he complains that there was an occasion when he had occasion to complain about inappropriate preparation of Halal meat on more than one occasion because it was rendered unfit for consumption by observing Muslims by reason of it being served with alcohol and Parma ham. We have some difficulty in understanding how this is relevant in any of the issues that we have to determine. The Claimant says that because nothing was done about his complaints he had been the subject of discrimination on the grounds of race or religion. We do not follow this argument.'

18. In my judgment, the answer to the applicant's complaints about the raising by the respondents of matters that he asserts were ruled out by the CMD on 23 May 2011 is, as the EAT explained, that it did not result in his being disadvantaged in the presentation of his case and that there was no procedural irregularity in the ET's handling of the proceedings. There was therefore no error of law on the part of the ET, and no basis for an appeal to the EAT, let alone to this court.
19. The fourth point that the applicant indicated that he wished to re-open before the Court of Appeal went, as I understood it, simply to another attempt to re-open matters on which the ET made findings of fact. No appeal lay on such a ground to the EAT, nor does it to the Court of Appeal.
20. The final point the applicant advanced to me went to the fairness of the panel that considered his appeal hearing, which he did not attend. The complaint was that Mr Anstey, the chairman of the college governors, chaired the panel. The applicant asserted that this was unfair. The ET considered the criticism of the constitution of the panel very fully at paragraphs 82 to 84. Whilst they recognised that Mr Anstey's inclusion on the panel was not ideal, they recorded that the proceedings were well noted and that the panel's deliberations were methodical, objective and reasonable. The panel had considered in full the applicant's representations and, in the absence of new evidence offered by the applicant, upheld the dismissal decision. The ET held that Mr Anstey's role as chairman was neither against procedure nor unfair. He had not, contrary to the applicant's assertions, been present at the substantive disciplinary hearing.
21. It does not appear that the applicant raised Mr Anstey's presence on the appeal panel as a ground of appeal before the EAT: it is not referred to in his grounds of appeal. Judge Serota summarised, at paragraph 20 of his judgment, the ET's conclusion on the point, without also suggesting that a complaint about Mr Anstey's presence on the panel was a ground of appeal. If, as I infer, he did not raise it before the EAT, he cannot raise it now. In any event, I am not satisfied that the ET's conclusion as to the fairness of the proceedings of the appeal panel was one that involved any error of law that can be the subject of an appeal. The applicant submitted that the decision was perverse, but I would not regard that proposition as seriously arguable.
22. Whilst I recognise that the applicant feels passionately that he did not receive a just decision from the ET, I am not satisfied that he has identified any errors of law on the part of the EAT in its disposition of his appeal to it. There is, therefore, in my judgment no basis for giving him permission to appeal against the order of the EAT; and I refuse to do so.