United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT In Person
For the Respondent	MISS M TETHER (Of Counsel) Beachcroft Wansbroughs 7 Park Square East Leeds LS1 2LW


 


JUDGE PETER CLARK

1. In order to understand the background to this appeal it is first necessary to set out, in summary, the relevant procedural chronology.
2. On 9 November 1998 the Appellant, Dr Zalzala, presented an Originating Application (case No 2802369/98) to the Sheffield Employment Tribunal complaining of racial discrimination on the part of his then employer, the Respondent University of Sheffield (The University) (the first complaint).
3. The case was listed for substantive hearing before the Sheffield Employment Tribunal for 10 days, beginning on 1 June 1999. The Appellant did not attend on that first day and the claim was dismissed. He applied for a review, which application was heard by an Employment Tribunal chaired by Mr R LL Williams on 17 June 1999. By a decision with extended reasons dated 7 July 1999 the application was allowed and the earlier decision revoked. However, the Appellant was ordered to pay the Respondent's costs, estimated at £2,041.56, to be assessed. An appeal against that costs order (EAT/976/99) was dismissed by a division presided over by Mr Recorder Burke QC on 21 November 2000.
4. Meanwhile, on 7 December 1999 the Appellant presented a second complaint (No 2407955/99) naming the University as 1^st Respondent; South Yorkshire Police as 2^nd Respondent and Mr Williams and the 2 lay members who sat with him at Sheffield on 17 June as 3^rd Respondent (the second complaint).
5. On 17 December 1999 the Sheffield Regional Chairman, Mr Sneath, directed that the second complaint be transferred to Manchester.
6. On 10 January 2000 Mr Sneath directed that both the 1^st and 2^nd complaints be combined and that they be dealt with in Manchester.
7. On 7 February 2000 the Regional Chairman in Manchester, Mr Beaumont, directed that the 2^nd and 3^rd Respondents to the second complaint be dismissed from the proceedings, leaving the University as the sole Respondent to both complaints.
8. The combined cases were scheduled for hearing over 15 days in Manchester, commencing on 4 September 2000.
9. Prior to that date the Appellant applied unsuccessfully for a postponement, that application being refused by Mr Beaumont by letter dated 23 August 2000.
10. The Appellant persisted in his request for a postponement and by letter dated 25 August 2000 the Respondent's solicitors indicated that if he attended the Employment Tribunal on 4 September and was not prepared to proceed, application would be made to strike out his complaints under Rule 13(2)(e) or (f) of the Employment Tribunal Rules of Procedure.
11. On 1 September 2000 the Appellant appealed against the refusal to grant a postponement. That appeal was heard by the vacation judge, Mrs Justice Hallett. She dismissed that appeal.
12. On 4 September the Appellant appeared before an Employment Tribunal sitting at Manchester, under the chairmanship of Mr P J Russell. The Appellant repeated his application for an adjournment, which was refused. When asked to proceed with his case, the Appellant declined to do so. Miss Tether, Counsel for the University, then made the application to strike out, foreshadowed in her solicitors' letter of 25 August. It succeeded, the Employment Tribunal holding that the Appellant's conduct of the proceedings was scandalous and frivolous and/or for want of prosecution. Rule 13(e) & (f).
13. Having announced the strike out decision, the Employment Tribunal was asked for a costs order against the Appellant by the Respondent. That application was adjourned to a date to be fixed, the Respondent being directed to send to the Appellant a skeleton argument setting out the basis of the Respondent's costs application within 14 days of promulgation of the extended reasons for the Tribunal's decision, they being promulgated on 26 September. In the event, following a 7 day extension, the skeleton argument was served 1 day late, due to Counsel being ill. That delay formed the basis of an unsuccessful application by the Appellant to strike out the Respondent's costs application, dismissed by a Tribunal chaired by Mr Doyle, on 8 January 2001, that Tribunal's decision being promulgated on 17 January 2001.
14. The costs hearing was adjourned to 18 April. The Appellant applied for a postponement of that hearing, for medical reasons, which application was finally granted by Mr Doyle by letter dated 20 March 2001.
15. On 24 April 2001 the Employment Tribunal sent out a listing letter, offering dates for the costs hearing of 2-6 and 12 July 2001.
16. On 10 May 2001 Mr Doyle caused 2 letters to be sent to the parties and in particular the Appellant:

(1) a letter dealing with earlier correspondence from the Appellant in particular a letter from him dated 6 May (the first letter)

(2) a letter fixing the adjourned costs hearing for 12 July 2001. That letter was later amended by a further letter dated 1 June.

17. It is those 2 letters which form the focus for this appeal (EAT/0701/01), the present appeal.
18. We should record, because this fact appears in the Appellant's letter to the Employment Appeal Tribunal dated 8 July 2001, seeking an adjournment of today's hearing, that he has 7 further appeals arising out of this litigation, all of which are listed for Preliminary Hearing on 20 July 2001.

The Adjournment Application

19. Having commenced the present appeal by a Notice dated 20 June, the case has been listed for hearing today Inter Partes because it includes, as the Employment Appeal Tribunal had understood the position a challenge to Mr Doyle's refusal to adjourn the costs hearing at Manchester fixed for 12 July, that is in 2 days time.
20. The basis of Dr Zalzala's application was, first, that this appeal should be listed for a hearing without the Respondent present and secondly that it should be listed with the 7 other appeals due for Preliminary Hearing on 20 July.
21. We rejected that application. It seemed to us that the real issue in the appeal was whether the Chairman, Mr Doyle, erred in law in refusing to grant a postponement of the hearing in Manchester fixed for 12 July. As to whether that understanding is correct we shall return to later in this judgment. If it be right, it follows that the appeal, in order to be effective must be heard before that date. There is no purpose in holding an Ex Parte hearing, without the Respondent, since if the appeal is allowed to proceed to a full hearing with both parties present, that latter hearing will not be able to take place until after 12 July.
22. In these circumstances we have proceeded to hear the appeal. As to the appeal itself:

(1) in our judgment the first letter of 10 May contains no order or decision against which an appeal lies to this Appeal Tribunal. Our jurisdiction is limited by section 21(1) of the Employment Tribunal Act 1996 to correcting errors of law arising out of decisions or orders of the Employment Tribunal.

(2) the Chairman's refusal to postpone the hearing fixed for 12 July may only be attacked on Wednesbury grounds that is, that he took into account irrelevant factors, failed to take into account relevant factors or otherwise reached a perverse conclusion at law. See Carter v Credit Change Ltd [1979] ICR 908 (CA).

23. In support of this appeal Dr Zalzala takes essentially 3 points. First, he complains that he has been required to disclose his means, "in private" as he puts it, to the Respondent without lodging such details with the Employment Tribunal. We think that is a misunderstanding of the purpose of the order made in this respect by the Doyle Tribunal sitting on 8 January 2001. It is a common feature of the disclosure process that one side is required to provide copies of his documents to the other side in advance of a hearing, so that his opponent is not at a disadvantage by not knowing what the first party has in his possession. It seems to us that that was the purpose of the direction given at paragraph 25 of the Doyle Tribunal's reasons promulgated on 17 January 2001 that the Respondent should have advance notice of what the Applicant's evidence will be as to his means.
24. As to the point which Dr Zalzala takes in relation to paragraph 5 of the decision in that 17 January order, it is correct to say that the Tribunal directed that the written statement of means should be sent to the Respndent's solicitors and not to the Tribunal itself. We think there is nothing suspicious about that. It is simply that the Tribunal did not want to see the documentation until the costs hearing took place.
25. Dr Zalzala has a further concern and that is that he sent a copy of his letter setting out his means to the Tribunal on 19 June. It appears from the Tribunal's date stamp on the copy which we have seen at page 66 of our Court bundle that that letter was received. However, in a later letter from the Chairman dated 6 July it is said that the letter has not been received. We do not accept that is itself sinister, rather that the Tribunal administrative staff had not placed that letter onto to the correct file at the time when the Chairman wrote his letter.
26. Secondly, there is a complaint about the phraseology used by the Chairman in his first letter dated 10 May in relation to how means and the reasonableness in making the order for costs are to be dealt with at the forthcoming hearing. Particular reference was made to paragraphs 25-26 of Mr Recorder Burke's judgment in the Employment Appeal Tribunal decision to which we have earlier referred. We can see nothing inconsistent in what the Chairman says in that letter with that which appears in those paragraphs of the Employment Appeal Tribunal judgment.
27. Thirdly, he complains of bias on the part of this Chairman, Mr Doyle. It is really only this point which can be tied in to any relevant order or direction or decision of the Tribunal contained in either of the letters of 10 May. That is the direction in the second letter that the cost hearing should take place on 12 July. The main complaint appears to be that whereas leeway way was given when it was said that the Respondent's Counsel was ill, and as a result the skeleton argument as to the costs application arrived a day late without any enquiry into any evidence as to Counsel's health on that occasion, when the Appellant applied for an adjournment of the hearing originally fixed for 18 April he was asked to and did provide evidence as to his medical condition and in particular his appointment for an RI Scan.
28. We do not think that that distinction is such as to found any realistic argument as to bias or the appearance of bias on the part of this Chairman and therefore returning to the order and only order which could be appealed in this particular appeal we can see no grounds for interfering with the Chairman's direction that the costs hearing should take place on 12 July.
29. We should add, somewhat to our surprise that during the course of submissions this afternoon, Dr Zalzala said I have no problem with the hearing going ahead on 12 July. If that is to be taken at face value this appeal was pointless. We shall dismiss it.
30. Following our judgment in this case Miss Tether makes application under Rule 34(1) for the costs in the appeal which are calculated by the Respondent in the sum of £2,090. We are quite satisfied that this appeal was wholly unnecessary for the reasons given in our earlier judgment and that prima facie the Respondent is entitled to costs under Rule 34(1).
31. We are not impressed by the Appellant's submission that this case should have been listed for a Preliminary Hearing to avoid his being exposed to the risk of costs. As we have indicated earlier seems to us that the only order against which this appeal could be brought was the order by Mr Doyle directing that the costs hearing in the Employment Tribunal should take place on 12 July. Accordingly this appeal had to be heard in advance of all the other appeals before that date.
32. However, we have taken into account such information as we have as to the Appellant's means, which are contained in a letter dated 17 June 2001 sent to Beachcroft Wansbroughs, the Respondent's solicitors. On the face of it, it appears that his net monthly income is £2,035 and coincidentally his expenditure amounts to precisely the same figure. He will have to make some economies. We bear in mind his means in reducing the costs sought. The figure for costs which we award in this appeal is £500. That sum is payable within 14 days of the promulgation of our order.