United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A HOSSAIN QC Zaiwalla & Co Solicitors 33 Chancery Lane London WC2A 1ZZ


 


MR JUSTICE BELL: This is a preliminary hearing in respect of two appeals which will be consolidated if they proceed to a full inter partes hearing. The first is a respondent's appeal against a decision dated 23rd February 2000 of the Employment Tribunal sitting at London (North) on 16th to 19th November and 1st December 1999, that the first and second appellants had discriminated against the applicant on grounds of her sex and that the first appellant had broken her contract of employment. The second appeal is an appeal against the decision dated 16th May 2000 of the same Employment Tribunal sitting on 28th April 2000 that the first appellant should pay the applicant some £43,000 and the second appellant should pay the applicant/ respondent some £500 in compensation for sex discrimination.

1. The first appellant is a firm of solicitors with a single principal, the eponymous Mr Zaiwalla but with salaried partners and qualified staff. The second appellant is a senior employee and office manager of the firm.
2. The applicant, Ms J Walia, had passed necessary exams as we understand it as a mature student to become a solicitor and was seeking a traineeship. She was engaged by the first appellant on 22nd November 1998 to work from 14th December 1998 as a paralegal with the possibility of progressing to a traineeship in about January or February 1999. The delay from 22nd November to 14th December 1998 was because she had to give three weeks notice to the Lord Chancellor's Department where she was then working.
3. A Mr White started work as a paralegal with a view to a possible traineeship shortly before Ms Walia. On 14th January 1999 Mr White was awarded a training contract back-dated to 4th January 1999.
4. Ms Walia was not awarded a training contract. Her employment was terminated by letter dated 24th February 1999 which said that she did not measure up to the standard required of the firm's trainees. In March 1999 she returned to work for the Lord Chancellor's Department.
5. The relevant parts of the decision on what Mr Hossain QC for the appellant has succinctly called "liability" were:

"(1) The First Respondent discriminated against the Applicant on the grounds of her sex by failing to expose her to substantial legal work, by failing to give her adequate work in supervision to appraise her suitability for a training contract, by failing to have an Equal Opportunities Policy in place and failing to take reasonable steps to enforce such a policy, by failing to prevent Mr Hodson the Second Respondent from bullying and intimidating the Applicant, by failing to take reasonable steps to prevent male employees from treating the Applicant in demeaning or discriminatory manner, by failing to carry out proper or adequate appraisal of the Applicant's suitability for a training contract and in its notification to the Applicant that she would not be offered a training contract.

(2) The Second Respondent sexually discriminated against and sexually harassed the Applicant by consistently treating the Applicant differently from her male comparator Mr D White and by subjecting the Applicant to intimidatory, hectoring and bullying behaviour with the intention of making her feel vulnerable, nervous and to undermine her. The Applicant was subjected to this behaviour by reason of her sex. The Tribunal found that the Second Respondent discriminated against the Applicant on the grounds of her sex in his part in the decision taken to refuse the Applicant a training contract. The Tribunal also found that the First Respondent was vicariously liable for the actions of the Second Respondent as its employee.

…

(4) In relation to the Applicant's claims in breach of contract the Tribunal found that there were implied terms of the Applicant's contract of employment that a proper adequate and fair method of appraisal would be applied to decide whether or not to offer her a training contract and further that the Applicant would be given substantive legal work to carry out. The Tribunal further found that the Respondent was in breach of that implied term in that no proper adequate or fair method of appraisal was applied to decide whether or not to offer the Applicant a training contract."

6. So far as the proposed appeal against liability is concerned we have been greatly assisted by amended grounds of appeal on liability drafted by Mr Hossain. Most of Mr Hossain's submissions related to paragraphs 3 to 9.3 of the proposed amended grounds. They are headed "Fair Trial" and read as follows:

"FAIR TRIAL

3. The Appellants were denied a fair trial before the Employment Tribunal in violation of the "equality of arms" principle within Art.6(1) of the European Convention on Human Rights ("the Convention"). The Appellants' case is that the proceedings in the Employment Tribunal were influenced to the detriment of each of the Appellants by:

3.1 Evidence given by two senior officers of the Lord Chancellor's Department ("the LCD"), namely Ms Janet Skeates, Office Manager, for Judicial Appointments, Division 3 & Mr Michael O'Neil, Manager of the Press Office.;

3.2 A copy of a letter dated 8 October 1999 and purportedly written, signed and authorised to be read as evidence in the proceedings by Mr Keith Vaz, MP, then a Minister of the Crown in the LCD.

3.3. The evidence given by the Respondent in her Witness Statement and in cross-examination that she was being supported in the proceedings before the Employment Tribunal by a senior civil servant in the LCD, Mr Garry Hart, the Expert Adviser to the Lord Chancellor.

4. The Lord Chancellor and the LCD are responsible for appointing members of the judiciary including, the Chairman of Employment Tribunals and is not expected to be and should not normally take a partisan stand in hostile litigation between two parties before any Courts or Tribunals.

5. The presence of the evidence adduced by the Respondent referred to in Paragraph 3 above was intended to and had the effect of influencing the decision of the Employment Tribunal.

6. The said evidence placed the Appellants at a substantial disadvantage vis-à-vis the Respondent, in that, the Appellants could not and / or were not in a position during the hearing to adequately comment on or effectively deal with such evidence.

7. The Appellants will say that the above evidence viewed objectively would have been prominent or of such importance in the Employment Tribunal's evaluation of the evidence before it so as to lead it to reject all the evidence on the disputed issues coming from the Appellant's witnesses.

8. Further or alternatively, the presence of the witnesses from the LCD and the evidence from a Government Minister in the case affected the independence and impartiality of the Employment Tribunal or there must be reasonable fears on the part of the Respondents that such evidence affected the independence and impartiality of the Employment Tribunal.

9. After the completion of the proceedings and the decision, the Appellants made enquiries about the evidence referred to in Paragraph 3 above and from fresh evidence now available, it appears as follows:

9.1 That the Respondent did not have authority from Mr Keith Vaz, MP, to use that letter in evidence. Mr Vaz and the Respondent were respectively advised and informed by Mr Garry Hart that the letter should not be used in evidence and in so far as the Respondent gave the impression that she was authorised to use that letter, she had deliberately misled the Employment Tribunal.

9.2. That Mr Garry Hunt had acted as a "pastoral adviser" to the Respondent in the context of this case and had given her support in respect thereof. Mr Garry Hart and the principal in the First Appellant firm, Mr Sarosh Zaiwalla, had earlier been involved in hostile situation which was in the Flatamentos case which was taken over by the First Appellant firm from Messrs Herbert Smith of which Mr Hart was at the relevant time a senior partner and the events in the Court of Appeal in that case was the subject of an investigation by the Lord Chancellor.

9.3 That the witnesses from the LCD came to give evidence of their own volition and were given paid leave for that purpose.

The Appellants will seek permission from the Employment Appeal Tribunal to place this fresh evidence at the time of the hearing of this Appeal."

7. Mr Hossain says that he reflected long and hard before he drafted those grounds, but he eventually formulated them as he did to reflect what he contends is an arguable case of bias according ordinary English law principles and failure to provide a fair trial contrary Article 6(1) of the European Convention on Human Rights and Freedoms. He has referred to what he contends are the guiding principles in this case as succinctly set out in Human Rights the 1998 Act and European Convention by Steven Groz, Jack Beatson QC and the late Peter Duffy QC. The parts of that publication to which Mr Hossain has referred us are principally these. On page 219, Article 6(1) of the Convention itself is quoted, the first sentence of which reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to fair and public hearing within a reasonable time by an independent and impartial tribunal established by law"

Mr Hossain stresses the word "fair" and the words "impartial tribunal". Next Mr Hossain referred us to page 241 and 242 which at paragraph C.6.57 reads as follows:

"Although the case law [that is the case law on impartiality] does not provide a cut and dried answer as to when justice is not seen to be done, the Convention organs have closely scrutinised cases where … (c) members of the tribunal have been appointed by organisations whose interests are in conflict with those of the litigant … (g) the distinction between the functions of the prosecution and the trial court or between the court and the State as party to the proceedings becomes blurred."

Next Mr Hossain referred us to page 244 where at paragraph C.6.63 the publication reads:

"In many cases the specific guarantees in Article 6 will not be applicable and an applicant's complaints will have to be examined under the general fair hearing rule."

The publication then quotes from Nielsen v Denmark [1988] 11 EHRR 175, paragraph 52 as follows:

"The question whether the trial conforms to the standard laid down by paragraph 1 will be decided on the basis of a consideration of the trial as a whole and not on the basis of an isolated consideration of one particular incident. Admittedly one particular incident or one particular aspect may have been so prominent or may have been of such importance as to be decisive for general evaluation of the trial as a whole. Nevertheless even in this contingency it is on the basis of an evaluation of the trial in its entirety that the answer must be given to the question whether there has been a fair trial."

Finally Mr Hossain referred us to paragraph C.6.65 on page to 245 of the publication, the material parts of which for the purposes of his argument read as follows:

"The Convention organs have moreover relied on the general right to a fair hearing to articulate several more concrete rights. … (b) the right to equality of arms which affords a party a reasonable opportunity of presenting his or her case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his or her opponents."

8. Mr Hossain contends that in this case there were witnesses called who were employed at reasonably senior levels in the Lord Chancellor's Department. They were Miss Skeates and Mr O'Neil, the fact of whose evidence is referred to at paragraph 8 of the decision. Moreover Mr Hossain points out that in support of the applicant's case a letter was put before the tribunal, dated 8th October 1999, from and signed by Mr Keith Vaz MP, who at the time was a Lord Chancellor's Department Minister. It is addressed to the applicant's solicitors and in part indicates Mr Vaz's view of the applicant. It has a note written on it "Letter not sent on advice of Gary Hart, Jo Walia aware". Mr Garry Hart is the special advisor to the Lord Chancellor himself. We are told that there was some cross-examination before the tribunal of Ms Walia in relation to that note and that she explained it, at least in part, by saying that she was being supported in the proceedings before the Employment Tribunal by Mr Garry Hart. Although the tribunal decision does not refer to Mr Vaz or Mr Hart, or Miss Skeates' or Mr O'Neil's evidence in justifying even in part the decision which the tribunal reached, Mr Hossain says that their entry into the application really was an indication that the Lord Chancellor's Department was on Ms Walia's side. Even getting Miss Skeates and Mr O'Neil to come to the hearing in the sense of paying their expenses on the days they attended, must have given the tribunal the impression that the Lord Chancellor's Department itself was supporting Ms Walia in her application. It is not fair therefore, Mr Hossain says, just to look at those witnesses as one might look at witnesses from any previous or present employer speaking about the value of an applicant's work. Moreover, the appellants, it is said, were put at a disadvantage in that they could not check whether or not Mr Hart was supporting Ms Walia's application. They have since made checks and it appears, it is said, that Mr Hart's stand is that he was in no way supporting the application although as a senior colleague he had given Ms Walia some advice about her career generally. That appears from correspondence which has been put in front of us.
9. The points which are made in support of this first ground of appeal under "Fair Trial" are serious points. Very clearly put, and in a well measured way, so by Mr Hossain. But the fact is that however serious they may be, if we do not consider that they are realistically arguable, we must not shrink from saying so today. We have all three come to the conclusion that the points of appeal which we have so far described do not stand any real chance of success if argued at a full inter partes hearing before the Employment Appeal Tribunal. Whether the matter is looked at from the ordinary English common law point of view in judging whether there is any real risk or possibility of bias from the aspect of the reasonable person personified by this Appeal Tribunal, see the case of Locabail (UK) Ltd v Bayfield Properties Ltd and another [2000] QB 451 from 475D in particular, or whether the matter is looked at from the aspect of the European Convention in the particular respects which Mr Hossain has drawn to our attention and we have outlined, we do not consider that it can realistically be argued that the proceedings were unfair or in breach of Article 6(1) in the respects alleged. There is no good reason in our view to suppose that the tribunal was not impartial even though the members of it are appointed via the Lord Chancellor's Department. The matter did not, in our view, merely by the presence of witnesses from the Lord Chancellor's Department, bring the Lord Chancellor's Department into conflict with the appellants. The Lord Chancellor's Department's position was only as employer of those witnesses. We have a letter in the bundles before us which explains on behalf of the Department that if going to court or to the Employment Tribunal as witnesses for someone who had worked with the Lord Chancellor's Department was considered as part of the general function of the officers concerned, then their expenses were paid and they were allowed to go during working time. That seems to us to be a perfectly satisfactory explanation. Nor do we believe that the appellants were placed at any disadvantage vis-à-vis the applicant, either substantial or at all. There is no reason to believe that the evidence given by the employees of the Lord Chancellor's Department or the references to Mr Vaz's letter or Mr Hart's support in any way figured large in the tribunal's mind, bearing in mind the terms of the decision. We do not believe that it can be fairly said that the evidence of and in relation to officers, or in Mr Vaz's case a Junior Minister of the Department, could have taken on an importance which effected way the tribunal in any sinister.
10. For all those reasons we do not allow the matter to proceed on what, if we gave leave to amend, would be amended grounds 3 to 9, save in this limited respect, that if the amended grounds are redrafted to propose free-standing grounds in respect of the introduction of Mr Vaz's letter, allegedly without his consent, and in respect of the applicant's evidence as to support by Mr Hart, allegedly false, then the matter may proceed to a full hearing on those grounds: not as grounds relating to whether there was a fair trial but as grounds relating to what we understand to be the allegation that Ms Walia in effect deceived the tribunal by purporting to have Mr Vaz's agreement to put in the letter when she did not and in relation to support by Mr Hart. We make it quite clear that in allowing those matters to go ahead we are saying no more than that they merit argument at a full inter partes hearing.
11. The same applies to the remainder of the grounds from paragraph 10 onwards of the proposed amended grounds. We do not propose to go through them. Having listened to Mr Hossain's helpful submissions, we do think they merit argument on an inter partes hearing before the full tribunal. We only make one comment in relation to them. It was not clear to me until I heard Mr Hossain that one of the points which the appellants wish to make is that the tribunal was wrong to concentrate to the extent it did on comparison of treatment of the applicant with treatment of Mr White. Clearly in one respect at least it was fair to do so, namely in respect of the opportunities which they were given to show their mettle, but Mr Hossain makes the point that it was the appellants' case that there were always two trainee places available, and that it was the appellants' case that Ms Walia was not given a place, not because Mr White was preferred to her, but because, it was said, her work was not up to the standard required of a trainee in that firm. Yet, it is said, the tribunal did not make any finding or clear finding as to Ms Walia's ability. We suggest that some attention be given to the drafting of the amended grounds to make that point absolutely clear.
12. Stressing yet again that we are saying no more than that there are matters which merit the consideration of the Employment Appeal Tribunal at a full inter partes hearing, we propose to allow the appeal to go ahead on the question of liability save in respect of what I will summarise as the bias and Article 6(1) point; that is in respect of any possible intervention by the Lord Chancellor's Department. We do not mean to exclude the Article 6(1) arguments in so far as they may come in, in any other respect.
13. So far as the appeal against quantum is concerned, it seems to us that there is something to be said in respect of all the proposed amended grounds. We allow that appeal to go ahead to a full hearing. It may well be, and indeed we hope it is so, that some of the issue of quantum can be compromised before they actually come to a full hearing.
14. We give leave to amend the grounds of appeal in relation to quantum in the form before us. We give leave to amend the grounds of appeal on liability in the form limited in the respect which we have indicated in this judgment and we direct that the appeals be consolidated.

[Further directions, including a direction that there be an interlocutory, inter partes, hearing were then given.]