United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	SIMON DEVONSHIRE (of Counsel) Instructed By: Ms M Thomson Legal Personnel & Recruitment Services London Borough of Brent Chesterfield House 9 Park Lane Wembley Middx HA9 7RW
For the Respondent	MISS SARAH MOOR (of Counsel) Instructed By: Mr G S Bansel Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE DAVID WILCOX:

1. This is an appeal against the decision of the Employment Tribunal sitting at London (North) on 22 to 24 September and 28 October 1998. There was a further appearance on 22 December 1998.
2. The decision of the Tribunal was that the Applicant's claim of racial discrimination was not made out and was dismissed, as was her case of victimisation under the provisions of the Race Relations Act 1976. The Tribunal found, however, that the Applicant's claim of victimisation under the Sex Discrimination Act 1975 was made out. They save their reasons in extended form.
3. The basis of the application was three allegations, namely that on 14 March 1997, in relation to a Mr Hill there was an allegation of racial and sexual conduct; on 17 March 1997, in relation to a Mr Edwards and on 18 March 1997 in respect of a Mr Hill. The complaints are set out in the course of the Tribunal's findings and their Extended Reasons. The complaints were part of the original Originating Application and were added to by permission.
4. The appeal that is before us is a very short appeal and it comes to us with the leave of the Court at the preliminary hearing. The appeal by the Appellants is on the basis that the Tribunal found that there was in fact victimisation under the Sex Discrimination Act on a basis that was not the subject of either pleaded case or the presented case. That appeal was the subject of leave and in the fullness of time the Respondents (the Appellants here) to the appeal firstly, maintained that they would uphold the reasoning of the Tribunal in the Extended Reasons. That was the answer of 5 October 1999, following the preliminary hearing before His Honour Judge Peter Clark, presiding over the Tribunal in June 1999.
5. "We intend to resist, on the grounds upon which the Respondent will rely, other grounds relied upon by the Employment Tribunal making the decision. The grounds of appeal were very clear". Subsequently, in the grounds put in by way of answer to the skeleton case of the Appellants, the Respondent wholly concedes the Appellants' case but seeks to set up a positive case by way of appeal, now seeking to impugn the Tribunal's findings and seeking to persuade this Employment Appeal Tribunal to give a remedy, namely by sending the case back for further hearing by the Tribunal below. We note that this is more than 18 months after the original hearing. It is a very considerable time after the preliminary hearing in June 1999.
6. We make this observation. In relation to the original appeal by the Appellants 42 days were given in which the matter could be appealed. Clearly, the matter was considered and analysed by the Appellants and they drafted their grounds of appeal. The Respondent, too, being represented by legal advisers would have had a similar opportunity to take stock as to what had been found by the Tribunal.
7. It would have been noted, knowing that an appeal was launched and was going to a preliminary hearing, that there might be concern as to whether or not the Respondent could support the reasoning of the Tribunal. The hearing took place. The preliminary hearing does not take place in a vacuum. There is an administrative system set up to ensure fairness to all parties and to ensure that matters are dealt with as quickly as possible so that, at the end of the day, there is some finality to the disputes between parties. To that end there are rules governing the hearing of the Employment Appeal Tribunal, in particular there is rule 6 relating to Respondent's Answer and Notice of Cross-Appeal. Rule 6(3) states:

"(3) A respondent who wishes to cross-appeal may do so by including in his answer a statement of the grounds of his cross-appeal, and in that event an appellant who wishes to resist the cross-appeal shall, within a time to be appointed by the Appeal Tribunal, deliver to the Tribunal a reply in writing setting out the grounds on which he relies."

8. That seems permissive in terms of the rights of the Respondent to the original appeal. We also have the Employment Appeal Tribunal Practice Direction. This deals with the institution of the appeal, appeals out of time, interlocutory applications and the like. It deals with skeleton arguments and so forth. Rule 14 deals with the preliminary hearing and sets out the requirements of a preliminary hearing and the objectives of such a hearing.
9. We then move to the Employment Appeal Tribunal guidance notes which relate to preliminary hearings and directions. We note, of course, that these are matters of guidance, things are not writ in stone. The court at all stages, within the general law and the rules, has a discretion to ensure that justice is done, notwithstanding that is desirable a strict observance of the particular rules. Paragraph 15.4 EAT guideline notes:

"4. Experience shows that cross-appeals are rarely presented. In the normal course of events, a respondent to an appeal, who has been successful in the employment tribunal, will simply wish to persuade the EAT to uphold the decision for the same reasons which led the employment tribunal to reach their conclusions. There are, however, two types of cross-appeal.

(1) The first is where the respondent wishes to challenge part of the decision of the employment tribunal, but only if the appeal is allowed to go to a full hearing. In such a case, the respondent may include the cross-appeal in his answer.

(2) The second is where the respondent wishes to challenge a part of the decision, whatever the outcome of the appeal. This latter type of cross-appeal will be treated in the same way as an appeal. Accordingly, the respondent must send to the EAT an answer and cross-appeal, when returning the PHD form. Failure to do so may deprive the respondent of the right to pursue the cross-appeal. This type of cross-appeal will be listed for hearing at the PHD, and the respondent, who will be entitled to appear, will be required to satisfy the EAT that it is reasonably argue that the employment tribunal erred in law in their decision in the respects alleged in the cross-appeal. The EAT may permit the cross-appeal to be argued at a full hearing, or dismiss the whole or part of it at the PHD."

10. Firstly, we look at what the Respondent says in her original answer. The Respondent says "We are going to uphold the grounds relied upon by the Employment Tribunal". It is only late in the day that she admits that there is no factual argument about the Appellants' case and goes on to impugn the Tribunal's findings. She argues that she is entitled to do so. She accepts, however, that if this Tribunal considers this route to be a cross-appeal we should give leave. She says that she is entitled, by way of an answer, to cross appeal. This has the effect of subverting the scheme required of a Respondent where a PHD is listed. The Respondent maintains that her cross appeal may go forth without leave. If the appeal, of course, is what I would call, the mirror image of the Appellant's appeal then she is quite right because the guidance rules clearly envisaged that. But it is not a mirror image. If it is a free-standing appeal then, in our judgment, leave is necessary.
11. Mr Devonshire, on behalf of the Appellants, contends that since, in effect, his appeal is allowed and the basis has been conceded by the Respondent that is an end of the matter. We must look at the reality. We find that looking at the concession made by the Respondent of the appeal and the necessity to impugn the Tribunal's findings that this is a free-standing appeal. If it had been merely a mirror image of the original appeal, then she would have been able to maintain her case on the basis of the answer, namely by upholding the reasoning of the Tribunal. By her concession in the course of the skeleton argument she clearly realises that there is need to ask for a separate remedy on the basis of the case she now seeks to run. We have come to the firm conclusion that this what I would categorise as a free-standing appeal. It comes within paragraph 4.2 of the guidance notes. What then should be our approach to this? Firstly, there must be an application for leave. An application has been made orally before us. We must look at that and we must consider in looking at it how we should exercise our discretion in the matter.
12. We exercise our discretion in this matter, taking into account the comprehensive guidance given in United Arab Emirates v Abdelghafar & Another, a decision of Mummery J in this Tribunal, reported in [1995] ICR 65. There, on page 70 D, he cites Costellow v Somerset County Council, the two poles that the court must seek to reconcile:

"The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. … The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. "

Then, at paragraph E (3) he goes on:

"The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached …"

Later in that paragraph he deals with matters of appeal, the stage of appeal (just below letter F and continues in G):

" … if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings."

And then at (4) H he goes on to say:

"(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default."

Then going on from B to H on page 71, he deals with the application of principles by the Appeal Tribunal. At C on page 72, he characterises the questions that he draws from his earlier passage.

"Thus, the questions which must be addressed by the appeal tribunal, the parties and their representatives on an application for an extension are: (a) what is the explanation for the default? (b) does it provide a good excuse for the default? (c) are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?"

13. The explanation for the delay here seems to be that it was thought by those who advise the Respondent that they could achieve their objective on the back of the appeal in an answer. That clearly is wrong. It clearly is something that would be appreciated to be wrong by legal advisers who would have looked at the strengths of the case at the time that the appeal was notified within 42 days of the original decision, at the time before the hearing of the preliminary hearing, when the preliminary hearing procedure should have been complied with and subsequently within 14 days when the answer was put in. It is clear that the explanation is no excuse here. Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time? We think that a Respondent who seeks to pursue a free-standing cross-appeal who is represented at all stages, would have to demonstrate strong and exceptional circumstances to warrant the granting of an extension of time. We have heard no explanations justifying to take an exceptional step, addressed to us today. It seems that it is assuming that we would automatically exercise our discretion in favour of the Respondent.
14. We have to look to matters such as finality, the amount of time that has elapsed. We have to look at all the matters that were set out by Mummery J. We have done so and we are driven to the conclusion that it would not be right in this case to give leave for the Respondent to pursue the cross-appeal. We therefore go to the main appeal. In the light of the concessions made by the Respondent, it follows that the Appellants must succeed on their appeal and that seems to be the appropriate order for us to make.

APPLICATION FOR COSTS

15. It is very clear to us the mind of those who were representing the Respondent was directed to this question of cross-appeal with a PHD form that has now been produced, and it is clear that they gave an answer that there was no intention to pursue a cross-appeal.
16. In passing I make this observation. Even if they were going to in fact rely upon and develop the arguments in the Extended Reasons of the Tribunal, it might have been helpful to indicate the extent to which that was being done. It is to be remembered, in these cases, that there is a necessity for full, frank disclosure between all parties to the litigation process. That is part of the civil procedure rules, it has always been part of the ethos of the Employment Tribunals. There has been a departure from it. We think that this hearing would have been rendered unnecessary.
17. We are going to order that the Respondent do pay the costs of the Appellants, limited to £500.