United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P WARD (Counsel) DHILLON & CO SOLICITORS 45 Western Road Southall Middlesex UB2 5HE
For the Respondents	MR W BEGLAN (Counsel) KENNETH ELLIOTT & ROWE Solicitors 162-166 South Street Romford Essex RM1 1SX


 


JUDGE CLARK

1. We see that in this appeal Morison J made a RRO under rule 23 Employment Appeal Tribunal Rules by consent on 26 March 1998. Since this case does not involve allegations of sexual offences as defined in section 31(8) of the Employment Tribunals Act 1996, there is no power to make such an order. Consequently the order was not properly made and we shall hereby discharge it.
2. These proceedings were commenced by an originating application presented to the Employment Tribunal on 12 February 1996. In that application the Appellant, Miss Parveen, complained of sexual harassment on the part of the first Respondent, that the second Respondent had failed to properly act upon her complaints to him about that treatment but, instead had dismissed her and that in the circumstances all three Respondents, the third being her employer, Petchey Holdings Plc, whom she alleged was vicariously responsible for the actions of the first and second Respondents, had discriminated against her on grounds of her sex.
3. The claim was resisted. The Respondents denied any sexual harassment on the part of the first Respondent. Accordingly there was a straight conflict of fact; who was to be believed?
4. The case came on for hearing before a Employment Tribunal consisting of the Chairman, Mr Giles Flint and Lay Members Ms Roth and Mr Buckley, sitting at London North, on 22–25 September 1997. The Appellant was represented by Mr Peter Ward (of Counsel); the Respondents were represented by Mr D M Moore (of Counsel).
5. At the end of the final day of the hearing, the Tribunal decision was reserved. Following a meeting in Chambers held on 16 October 1997 a decision was promulgated with extended reasons, dismissing the complaint. That decision is dated 12 December 1997, and on its face is the decision of only two of the original three members Miss Roth's name does not appear. No explanation is given in the Tribunal reasons for the Tribunal being reduced to two members. Against that decision the Appellant appealed by a Notice dated 21 January 1998, settled by Mr Ward. The grounds of appeal took a number of points, on what we shall call the substance of the Tribunal decision.
6. Before the appeal came on for Preliminary Hearing the Appellant applied for leave to amend her Notice of Appeal. The draft amended Notice, dated the 27 April 1998, and again settled by Mr Ward added the following, further ground of appeal

"The tribunal misdirected itself in law or misunderstood the law or misapplied the law by making its decision without its full quota of members and without obtaining the parties' consent (1993 Reg reg 7(3), Quenchers Limited –v- McShane (1993) The Times 8 February)."

Particulars 6.7.1, During the final afternoon one member unintentionally fell asleep. Although the chair directed himself to later seeking advice from the Regional Chairman, that member voluntarily resigned at the close of the hearing."

We shall call this the consent point.

7. Leave to amend was finally granted by order of the Registrar, dated 15 September 1998. On 10 February 1999, the appeal came on for a Preliminary Hearing before a division on which I sat. As appears from the judgment which I gave on behalf of the Employment Appeal Tribunal on that occasion, the appeal was allowed to proceed on all grounds including the consent point. In the course of that judgement I said this, in relation to the consent point, transcript 2 D-H.

"The second point we particularly mention arises on the amended ground at paragraph 6.7. We see from the promulgated decision that it was reached by two members, the Chairman and one Lay Member. What we are told happened in this case is that as one would expect in a discrimination case, the Tribunal panel consisted of three members at the outset. On the fourth day of the hearing, it appears that one of the members seemed to have fallen asleep during the afternoon session. This point was raised, and at the end that hearing, before the Tribunal adjourned for a written closing submissions from the parties and to consider the matter in Chambers, that member discharged herself from further sitting on the case. Accordingly, only the Chairman and the other member reached the decision on the case."

"Our attention has been drawn to the case of Quencher Limited –v- McShane (1993) of The Times 8 February, in which it appears to have been found that in the absence of consent from the Tribunal continuing with only two members, any order made will be set aside as a matter of course for a rehearing."

8. Further a direction was given that the Chairman be asked to provide his comments by reference to his notes of evidence on those matters raised in paragraph 7 (a) – (c), of the amended Notice of Appeal, that is the application by the Appellant for the Chairman's notes of evidence. Paragraph 7(c), reads

"As to one of the lay members falling asleep (final afternoon):

whether the consent of the parties was either sought or obtained to continue with

the case."

9. In response to that request, the Chairman responded by letter dated 1 March 1999, in which this is said: -

"With reference to this appeal and request for comments on paragraph 7, of the Notice of Appeal the Chairman has the following comments; he declines unless the Appeal Tribunal so orders to produce extracts from his notes. His view is that the notes should be provided in their entirety which he will of course do if the Appeal Tribunal so directs or not at all. The provision of selected extracts at the request of a party could mean that matters were taken out of context. The question of a member falling asleep was dealt with at the hearing. After a discussion with Counsel, Counsel agreed to the matter continuing before a Tribunal of two. The member, who admitted being asleep, withdrew and did not remain until the close of the hearing. The Chairman spoke to Mr Buckley who confirms the Chairman's view of what happened."

10. On 11 May 1999 the Respondent's solicitors wrote to the Employment Appeal Tribunal in these terms;

"it is my client's position that the matter continue before a Tribunal, consisting of the Chairman and Mr Buckley with the consent of the parties. My clerk's note accords with the view of the Chairman. I would if necessary obtain a witness statement from Counsel who represented my client before the Tribunal.

In the circumstances I would therefore apply for an order that the Appeal Tribunal direct that the Chairman provide his notes in their entirety, and I would ask you to treat this letter as such an application."

That correspondence was place before me and by a letter dated 13 May 1999, I directed:

1. that the Chairman be asked to produce his full notes of evidence

2. each party was to lodge a statement of truth within twenty eight days, setting out the circumstances in which a member of the Tribunal panel came to be discharged and in particular whether or not both parties consented to the case proceeding with two members only. That matter appeared to be in dispute.

11. The Appellant complied with that direction by way of a statement by Mr Ward dated 2 June 1999. In that statement he gives the following account, that during the afternoon of the fourth day, he was cross-examining the Respondent's witness, Mr Knowles, the second Respondent, when Mr Moore intervened. Having taken instructions from Mr Mills, Mr Moore pointed out to the Tribunal that Miss Roth had been asleep. Miss Roth said that she had dozed off, but only for a couple of brief occasions. Mr Ward was asked for his comments. He said that he had not seen Miss Roth asleep, but conveyed his instructions that the Appellant was content for Miss Roth to continue sitting. It was Mr Ward's impression that no one present could say with any confidence what the position was at law. However, it was agreed that the hearing would continue as normal for the time been. Mr Ward completed his cross-examination of Mr Mills.
12. The hearing closed at 4 o'clock or soon afterwards. The Chairman directed that closing submissions would be put into writing and so that he could take advice from the Regional Chairman, as to the position of his colleague falling asleep. At this point Miss Roth said

"there is no need to bother, I am withdrawing."

Or words to that effect. The hearing then terminated.

13. Mr Ward asserts in that statement that no request was made by the Chairman for the parties' consent to the Tribunal reaching a determination of the case by only two members. He adds that it was only after settling the original Notice of Appeal that he came across the Employment Appeal Tribunal decision in Quenchers Limited –v- and McShane, which is reported only in The Times and referred to in Harvey on Industrial Relations and Employment Law, that he realised the need for the parties' consent to a Tribunal sitting with only two members; hence the application for leave to amend.
14. That statement was prepared without the benefit of his notebook containing the notes which he took of the hearing. That notebook subsequently came to light and on 23 June he made a second statement exhibiting copies of the relevant pages in his notebook. At the Tribunal he was representing the Appellant under the FRU scheme without a solicitor's representative in attendance. Thus he was doing his best to keep a note, whilst cross-examining Mr Mills. The sequences of events revealed by his notebook differ slightly from the recollection expressed in Mr Ward's first statement. According to the note the sequence of events is as follows: -

1 Mr Moore interrupts cross-examination of Mr Mills. The note reads "One Tribunal member has been falling asleep. Will discuss with Regional Chair"

2 Cross-examination resumes and is completed.

3 "Lady on left (Ms Roth) will withdraw from case"

4 The Chair directs that closing submissions are to be put in writing and that the Tribunal will meet on 16 October. A written reserved decision will follow.

15. It is Mr Ward's recollection that no question of consent to the Tribunal being reduced to two members arose and that contrary to the Chairman's letter of 1 March, supported by the Respondent's solicitor's letter of the 11 May, the full Tribunal continued to sit until the end of the final day when Ms Roth withdrew.
16. The evidence from the Respondent came in the form of a statement by the Respondent's solicitors clerk, Trevor Hatton, who attended Mr Moore on the final day of hearing, dated 9 June 1999. During the afternoon whilst Mr Moore was cross-examining Mr Knowles, Mr Hatton made a note at 3.05pm that Ms Roth appeared to be asleep. He saw that she similarly appeared to be asleep at 3.10 and 3.20pm. At that stage Mr Moore applied for an adjournment to take instructions from Mr Mills. At 3.30pm, Counsel raised the issue of Ms Roth falling asleep. There was then a discussion of Ms Roth's sleeping. He agreed with Mr Ward's evidence that he, Mr Ward, indicated that he would be happy for Ms Roth to continue. Mr Hatton's statement then says this: -

"The Chairman stated that on the basis that both Counsel consented, the Tribunal would carry on with just two members and that he would discuss the matter as advised by the Regional Chairman and discuss the matter with Ms Roth as soon as possible the following day."

17. Thereafter the hearing continued. At the conclusion of Mr Mill's cross-examination Ms Roth stated that she would withdraw from any decision making on this case, just to be safe and to avoid any further delay and expense. The Chairman then said that he and Mr Buckley would decide the case on 16 October and that the parties should put in written submissions. Mr Hatton concludes that he believed Mr Ward consented to the case being decided by the two remaining members of the Tribunal. At no stage did he state that he did not consent to that course of action.
18. Mr Hatton did not exhibit his contemporaneous notes taken at the hearing to his statement. These have been placed before us today by Mr Beglan. Mr Moore also lodged a statement dated 10 June 1999. That statement was compiled with the assistance of Mr Hatton's notes in conjunction with his own recollection. On all material aspects he echoes the evidence of Mr Hatton.

Eventually the Chairman produced a typed version of his notes of evidence dated 16 September 1999. At the end of the note he adds this certificate;

"I hereby certify that these notes of evidence are made up from my notes which contained abbreviations, such notes having been taken at the hearing."

The material page of the notes is page 15, the last page. It contains the following sequence:

1 Notes of Mr Ward's cross-examination of Mr Mills

2 "At this point a complaint made that a member was asleep. The member admitted that she had been asleep for short periods and it was left that the matter would be discussed with the Regional Chairman as to the position. Later the member withdrew and the parties consented to the Tribunal continuing as a Tribunal of two.

3 "Continuance of the Cross-examination" and the remainder of Mr Ward's cross-examination of Mr Mills is then noted.

4 Finally Mr Mills' answer to one question from the Tribunal is recorded. There was no re examination by Mr Moore. That concludes the notes.

The consent point

Section 4(1) of the Employment Tribunals Act, 1996 provides, so far as is material;

"Subject to the following provisions of this section … proceedings before an Employment Tribunal shall be heard by

(a). the … Chairman and

(b) two other members or (with the consent of the parties) one other member……."

19. Section 4 goes on to specify the proceedings which may be heard by a Chairman sitting alone. Those exceptions do not include the substantive hearing of a complaint of sex discrimination.
20. Rule 8(I) of the Employment Tribunal Rules of Procedure 1993, provides that the hearing of an originating application shall be heard by a Tribunal composed in accordance with the fore runner of section 4 of the 1996 Act contained in the earlier Employment Protection of (Consolidation Act) 1978. The equivalent provision under the then regulations was considered by the Employment Appeal Tribunal (Wood J residing in Quenchers –v- McShane Employment Appeal Tribunal 514/92.) We have before us a transcript of the judgment delivered by Wood J in that case on 26 January 1993. In Quenchers a full Tribunal sitting at Manchester heard the Applicant's complaint of unfair dismissal on 21 January 1991. They upheld the complaint and then adjourned the hearing to see whether the parties could settle the question of compensation. No settlement was reached, but before the Tribunal reconvened for a remedies hearing on 21 March 1991, one of the Lay Members of the Tribunal had died. Accordingly the Tribunal reconvened on that day with only the Chairman and the remaining member. On 21 March the Tribunal heard submissions only from the parties' representatives, Counsel for the Applicant and the Respondent's Managing Director. A basic award was ordered but no compensatory award was then made. Thereafter an application was made on behalf of the Applicant for a review. A hearing of that application took place on 11 February 1992. On that occasion Counsel for the Applicant appeared; the Respondent did not appear and was not represented. In their review decision the Tribunal noted that the Applicant's Counsel agreed to the hearing taking place before a two member panel. A full review hearing was ordered to take place on 16 June 1992. By the time of that last hearing, held on 16 June, the Respondent had instructed a solicitor who appeared on its behalf for the first time on that date. On appeal the Employment Appeal Tribunal held that at no time did the Respondent consent to hearings taking place with only two members. Accordingly the Tribunal was improperly constituted. Without more the Employment Appeal Tribunal set aside the last three Tribunal hearings. The case was remitted to a fresh Tribunal for rehearing on the issue of remedy.
21. In these circumstances Counsel before us today agree that the question of consent is critical in this case. If we were to find that we are not satisfied that the parties consented to the case being determined by a two member panel only, then the appeal must be allowed and the case remitted for a fresh hearing. On this point Mr Beglan addressed us first. His first submission was that, following the guidance given by Cumming-Bruce J in Dexine Rubber Co Ltd –v- Alker [1977] ICR 434, where, as here, an issue arises as to what happened before the Employment Tribunal, where one party's recollection is in conflict with the account given by the Chairman, then that party must submit his criticism of the Chairman's recollection or note to his opponent. In the absence of agreement between the parties, the Chairman's recollection must be accepted. That procedure he submits was not followed in this case and therefore the Chairman's assertion, both in his letter of 1 March 1999 and in his notes must be accepted.
22. We think that there are a number of answers to that submission. First as a result of my direction given on the 13 May 1999, both parties have exchanged statements setting out their recollection of events on the last day of the hearing. It is clear from Mr Ward's statements that he did not accept the Chairman's account that Counsel agreed to the matter continuing before a Tribunal of two. Further on the 26 January 2000, the Appellant's solicitor's wrote to the Employment Tribunal asking for the Chairman's comments on Mr Ward's statements but no reply has been received by the date of this hearing, 17 February. Secondly, the direction in the Dexine Rubber case appears to have proceeded on the footing that the Chairman based his recollection on his contemporaneous notes taken during the hearing. In this case we have a difficulty. It seems to us that the account given by the Chairman in his letter of the 1 March and the relevant entry in his transcribed notes are inconsistent with each other and with the accounts given by both parties. SeeAberdeen Steak Houses Group Plc –v- Ibrahim (1988) ICR550. In the letter of 1 March, the Chairman states that after a discussion with Counsel, Counsel agreed to the matter continuing before a Tribunal of two. The member who admitted being asleep withdrew and did not remain until the close of the hearing. That account was initially supported by the Respondent's solicitor's letter of 11 May 1999. However, it is clear from the contemporaneous notes produced both by Mr Ward and Mr Hatton, that Ms Roth continued to sit on the Panel until after the completion of Mr Mills evidence. In his typed notes dated 16 September 1999, the Chairman records having noted that the matter would be discussed with the Regional Chairman, "Later the member withdrew and the parties consented to the Tribunal continuing as a Tribunal of two." A number of points arise on that note. The first is that the quote "Later" can only refer to the withdrawal of Ms Roth after the evidence was completed, rather than at that stage of the proceedings. Secondly, it is clear that that note does not flow sequentially within the context of the final page of the notes. It is not clear to us how that sentence came to be inserted into the typed version of the notes, bearing in mind the Chairman's certificate. Thirdly, it is inconsistent with the Chairman's letter of 1 March 1999, where he stated that Ms Roth withdrew and then the hearing continued to its close. Fourthly, it is common ground between the parties, on the basis of their statements, that at the close of the hearing Ms Roth announced her intention to withdraw, and at that stage neither Counsel was asked for nor gave his express consent to the case being determined by a two member panel. In these circumstances we find ourselves unable to accept without more, the Chairman's account that both Counsel agreed to the case continuing with only two members, if it is to inferred from his note that such consent was expressly given. If he sought to convey that implied consent was given, we turn to Mr Beglan's alternative submission that although no express consent was given by or on behalf of the parties, such consent can be implied in all the circumstances. It is correct to say that, according to Mr Hatton's contemporaneous note, which we accept, the Chairman said, when the challenge was first made to Ms Roth, by Mr Moore,

"On the basis of both Counsel consenting we'll carry on with just 2 especially as Mr Ward is nearly at the end, I'll need to discuss the matter as advised by Regional Chairman and discuss it with Ms Roth as soon as possible, tomorrow"

23. Mr Beglan submits that it was implicit in that observation that the Chairman was asking both Counsel for such consent and since neither dissented they impliedly gave it. That in our judgment will not do. At that stage there was no question of Ms Roth immediately standing down and the hearing proceeding with two members. That simply did not happen, contrary to the Chairman's letter of 1 March 1999. Neither Counsel consented to the panel continuing with only two members, indeed, Mr Ward on his own and the Respondent's account had indicated that he wanted Ms Roth to stay on the panel. She did remain until the end of the hearing. At the end of the hearing Ms Roth simply announced that she would withdraw from the decision making on the case. It was at this point, it seems to us, that it was critical for the Chairman to take control of the proceedings. He had to decide: -

1. whether Ms Roth ought to be discharged and if so

2. whether the whole Tribunal should discharge itself and order a re-hearing

3. whether the parties would consent to the case being determined by two members only

24. He does not appear to have addressed those questions, with Counsel, but simply proceeded to announce that he and Mr Buckley would consider the case on 16 October. Meanwhile written submissions were to be provided by Counsel. It may be that the Chairman assumed that he had the consent of both parties to that course, but, in our judgment he did not. We are not prepared to imply consent simply from the fact that the consent of Counsel was mentioned in passing at the earlier stage on the proceedings, after which all three members continued to sit. In those unsatisfactory circumstances we think it was incumbent on the Chairman, who has control of the proceedings, to either ask Counsel in turn at the close of the hearing whether they consented to two members deciding the case, or to carry out his earlier expressed intention to discuss the matter with the Regional Chairman the following day and then to cause a letter to be written to the parties, after the hearing had been terminated, asking in terms whether they consented to the determination being made by just two members. In either event an unequivocal affirmative reply was needed. It was not received. It follows that, with considerable reluctance, given that this case is now four years old and that a further four day hearing with the expense and effect on witness reliability which that will involve, we are driven to conclude that consent was not given by both parties to the case being determined by two members only. The appeal must, in these circumstances, be allowed and the case remittent to a fresh Employment Tribunal for re-hearing. We direct that a copy of this judgment be sent to the Regional Chairman, Mrs Mason as soon as it is perfected, with a request that the new hearing be arranged as soon as is reasonably practicable.