United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SYKES (Legal Representative) Instructed By: Employment Cases Direct Ltd 8 Bloomsbury Square London WC1A 2LP
For the Respondent	MR A BURNS (of Counsel) Legal (Contract) Services London Borough of Southwark South House 30-32 Peckham Road London SE5 8UB


 


JUDGE PETER CLARK:

1. These appeals raise a number of issues concerning Employment Tribunal procedure in the following circumstances.
2. The applicant, Mrs Bennett, who is black, was employed by the London Borough of Southwark (Southwark) as a Care Manager from 13 May 1985 until her dismissal on 22 September 1994. On 17 August 1993 she presented her first Originating Application to the Employment Tribunal complaining of race and sex discrimination. According to that complaint she first raised an internal grievance alleging racism, victimisation and sexism on 20 November 1991. Following her dismissal she presented a second Originating Application on 8 September 1995 complaining of unfair dismissal, race and sex discrimination and victimisation under both heads. On 27 February 1996 she served consolidated further and better particulars of her complaints running to 15 pages. The consolidated complaints were listed for ten days commencing on 1 July 1996 before a tribunal sitting at London (South) under the chairmanship of Mr I.S. Lamb (the Lamb Tribunal).
3. On that occasion she was represented by Mr Errol Harry, a black former employee of Southwark, who had held a lay position as a trade union representative and had represented her during the internal disciplinary process.
4. Ten days was not sufficient time to complete the case and it was adjourned part-heard until 27 January 1997. On that day the applicant was, as the Lamb tribunal accepted, suffering from influenza and a bad back. Mr Harry attended the tribunal as her representative; the applicant did not attend. He applied for a postponement until she recovered her health. That application was opposed by Mr Burns on behalf of Southwark. The tribunal refused the application. Their reasons for doing so, given orally at the time, were that the hearing had been listed for a further eight working days. A one week adjournment, sought by Mr Harry, would result in a further lengthy delay until July 1997. The applicant had given evidence at the hearing in July 1996; Mr Harry was able to cross-examine the remaining witnesses for Southwark without the need for the applicant's personal attendance. The tribunal also took into account the further cost, delay and inconvenience to Southwark of a further adjournment until July 1997.
5. The hearing then continued until lunch-time. Mr Harry began his cross-examination of a witness for Southwark, Mr Aziz. Following the short adjournment Mr Harry repeated his application for an adjournment. He had seen the applicant over the lunch-time break and she was unhappy that the case was proceeding in her absence. He said that if he were a barrister he would not be put in this position. Again the application was opposed by Mr Burns; again the request for a general adjournment was refused by the tribunal for the reasons appearing at paragraph 10 of the Lamb tribunal reasons for their decision promulgated on 20 February 1997 (the Lamb reasons). However, the tribunal did agree to put the matter over until the following morning, having first warned Mr Harry that there was a risk that the tribunal might strike out the applications on the grounds of unreasonable conduct or want of prosecution if the applicant decided to withdraw her co-operation by disinstructing Mr Harry.
6. On the following morning, 28 January 1997, Mr Harry made a third application for a postponement. He made the point that part of the applicant's substantive complaint against Southwark was that she had been dismissed following an internal disciplinary hearing at which she was not present. He then said:

"If I were a white barrister, I would not be treated in this way."

He followed that up by the remark:

"If I were an Oxford educated white barrister with a plummy voice I would not be put in this position."

7. The Lamb tribunal adjourned to consider that application. It is plain from the Lamb reasons, paragraph 14, that each member of the tribunal, the Chairman and Members, Messrs Hardwick and Ramakrishnan, were genuinely outraged by the clear suggestion that they, the Members of the tribunal charged to hear a complaint of race discrimination, were themselves guilty of treating a black representative less favourably than they would treat a white barrister.
8. They reached the conclusion that they could not, in these circumstances and in all conscience, fairly determine the applicant's complaints in the light of her representative's accusation of racism. They returned and said so. Conscious of the very limited circumstances in which it is proper for a tribunal to discontinue a hearing on the grounds of bias or apparent bias, having reminded themselves of cases including Peter Simper & Co v Cooke (No.2) [1986] IRLR 19 (reasons, paragraph 18), they nevertheless decided to terminate the proceedings, leaving over to another tribunal possible applications by Southwark for a strike out order and an order for costs.
9. The matter was referred to the Regional Chairman, who directed that the matter be listed before a fresh tribunal chaired by Mr John Warren (the Warren tribunal) to decide whether or not the complaints should be struck out under the provisions of rule 13(2)(e) of the Employment Tribunal Rules of Procedure. Rule 13(2)(e) provides, subject to the provisions for notice under rule 13(3), that a tribunal may, at any stage of the proceedings, order to be struck out any Originating Application on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant has been scandalous, frivolous or vexatious.
10. The necessary notice, complying with rule 13(3) was sent to the parties on 27 February 1997 and the hearing before the Warren tribunal took place on 30 May 1997. By a decision with extended reasons promulgated on 7 July 1997 (the Warren decision) that tribunal ordered that the applicant's complaints be struck out under rule 13(2)(e) on the grounds that the applicant's representative's conduct before the Lamb tribunal was scandalous. They further ordered the applicant to pay the respondent's costs, limited to the costs of that day, 30 May 1997, in the sum of £490.45, having taken into account the applicant's means, under the powers contained in rule 12. They found that the applicant's conduct in connection with the conduct of the application was unreasonable.
11. The applicant then appealed to the Employment Appeal Tribunal against the Warren decision by a Notice dated 14 August 1997 (EAT/1273/97). There had then been no appeal in time by either party against the Lamb decision.
12. The appeal against the Warren decision was out of time and by an Order dated 2 October 1997 the Registrar refused to extend time for appealing. Against that order the applicant appealed to the then President, Morison J.
13. That appeal was heard on 12 May 1999, and for the reasons which he then gave Morison J ordered first, that time be extended for the applicant's appeal against the Warren decision and secondly permitted both parties to challenge the Lamb decision on appeal. Hence the second appeal by the applicant and cross-appeal by Southwark against the Lamb decision (EAT/878/99).
14. Both appeals were listed for ex-parte preliminary hearing before a division on which I sat on 7 February 2000. On that occasion, with the assistance of Mr Sykes, then as now appearing on behalf of the applicant, we permitted both appeals to proceed to this full inter-partes hearing, identifying specific issues to be determined in each appeal. Southwark's cross-appeal against the Lamb decision is contained in their Answer to that appeal dated 13 April 2000. By that cross-appeal Southwark contend, if the Lamb decision is not upheld on appeal, that the Lamb tribunal ought to have ordered that the applications be struck out under rule 13(2)(e) on the grounds that the proceedings before the Lamb tribunal were conducted scandalously, frivolously or vexatiously on behalf of the applicant.
15. Having read and heard counsel's submissions on the specific issues in the appeals identified at the preliminary hearing and on the cross-appeal the real questions before us may be reformulated in this way:

(1) was the Lamb tribunal entitled to discontinue the proceedings, without notice to the parties, in the circumstances which arose in this case?

(2) if not, should the applicant's appeal against the Lamb decision be allowed and if so, should the cross-appeal by Southwark be allowed, and if so, ought we, exercising our powers under section 35(1)(a) of the Employment Tribunals Act 1996, to affirm the decisions reached by the Warren tribunal?

The first question

16. It is common ground that a tribunal has power to order the discontinuance of proceedings and direct that the case be heard by a differently constituted tribunal by a combination of rule 13(1), power to regulate its own procedure and rule 16, power to give directions. However, it is a power which should be sparingly exercised and only for good reason. Charman v Palmer Scaffolding Ltd [1979] ICR 335. It should not be exercised simply because one party complains that the tribunal has prematurely formed an adverse view of that party's case. Peter Simper (No.2) [1986] IRLR 19, or lacks confidence in the fairness of the tribunal. Automobile Proprietary Ltd v Healy [1979] ICR 809.
17. The immediate cause of the Lamb tribunal ordering discontinuance in this case was Mr Harry's accusation of racial bias against them; that a white barrister applying for an adjournment on the grounds of his client's illness would receive different, more favourable treatment.
18. Mr Sykes submits that in these circumstances, given that Mr Harry made no application for the Lamb tribunal to recuse themselves, it cannot be appropriate for that tribunal to order discontinuance.
19. However Mr Burns argues that this case is different from the earlier cases. There, it was suggested that the tribunal gave the appearance of bias, a charge which the tribunal in each case refuted. Bias may arise in one of three ways; actual bias, bias giving rise to automatic disqualification and cases where there is a real danger or possibility of bias. In the present case it was the Lamb tribunal itself which accepted that as a result of Mr Harry's complaint of racial bias there would be actual bias if that tribunal continued to hear the case. We would observe that, as in the earlier cases, the Lamb tribunal did not accept that they had given the appearance of bias, rather that there was a danger of bias in the future. It is a fundamental right of every party to have a fair hearing by an independent and impartial tribunal, now guaranteed through the inclusion of Article 6 of the European Convention on Human Rights into domestic law by the Human Rights Act 1998. Accordingly, once the tribunal Members themselves had given a collective declaration that they could not continue to hear the case impartially they had no alternative but to order discontinuance and a rehearing before a different tribunal then and there, whatever the parties may have had to say.
20. The position which arose in this case is unique in our experience and one on which there is no direct learning, according to the researches of counsel and ourselves. However, drawing on the decided cases and first principles we are satisfied that the Lamb tribunal was wrong to order discontinuance for the following reasons.
21. First, the interests of both parties. This was already an old case. On the second day of the Lamb tribunal hearing the tribunal had ruled that it would be just and equitable for the tribunal to consider the applicant's complaints going back to 1990. Secondly, the tribunal was then 12 days into a hearing anticipated to take 18 days. Discontinuance followed by a fresh hearing would result in substantial wasted costs and working time for the legally represented, publicly funded respondent and added stress and anxiety for the applicant. Thirdly, the context in which the Lamb tribunal came to order discontinuance is important. They had retired to consider Mr Harry's third application for an adjournment on the grounds of the applicant's inability to attend due to illness. When they returned, without canvassing the views of either representative and in the absence of Mrs Bennett, they simply declared that they felt unable to continue to hear the matter impartially and with equanimity and aborted the hearing.
22. On that aspect we are reminded by Mr Sykes of the approach of the EAT, Browne-Wilkinson J presiding, in Peter Simper (No.1) [1984] ICR 6, 11A. In that case the respondent made an ex-parte application to the Chairman of a full tribunal panel hearing the applicant's complaint of unfair dismissal for a rehearing before a differently constituted tribunal on the grounds of apparent bias on the part of the Chairman. Without consulting his lay colleagues or seeking the views of the applicant's side, he granted that application. On appeal the EAT held that, whilst having power to order discontinuance, the Chairman was wrong to do so, first without consulting the other members of the panel and secondly, as a matter of natural justice, without giving the other party an opportunity to be heard on it. The same tribunal was directed to continue the hearing.
23. In the present case the decision to discontinue was a decision of the full tribunal, but it was reached without giving either party an opportunity to comment. That, in our judgment, cannot be right subject to Mr Burns' point that here, unlike the earlier cases, the tribunal accepted that there was a real danger of bias if they were to continue hearing the case as a result of Mr Harry's remarks.
24. We think that the answer to Mr Burns' point is that the tribunal reacted prematurely. We accept that they were genuinely outraged by Mr Harry's accusation of racial bias. It is a serious matter to accuse a judicial body, charged with the difficult and sensitive task of adjudicating on a complaint of racial discrimination, of itself practising racial discrimination in its conduct of the proceedings and to do so in circumstances which were wholly unwarranted. We accept Mr Burns' submission that the history of the hearing before the Lamb tribunal, carefully set out in their reasons, shows that in fact the tribunal bent over backwards to accommodate the applicant and her unqualified representative in a way which a professional advocate, of whatever race or sex, could not expect.
25. However, it is the duty of any judicial body to approach its task with impartiality and equanimity, not to abdicate its responsibility. Where its authority is challenged it must deal with that challenge itself.
26. In the present case we have no doubt that the proper course was for the tribunal to return from its deliberations and inform the parties of its collective view of Mr Harry's remarks. Before discontinuing the proceedings it ought to have required Mr Harry to affirm or withdraw his accusations. If he continued to press his claim of racial bias it would then be for the tribunal, either of its own motion or, more likely, on the basis of an application which was in fact made by the respondent after discontinuance had been ordered and thus not entertained by the Lamb tribunal, to consider using its powers to order a strike out under rule 13(2)(e) (there being no power in the tribunal to punish a party or a representative for contempt) and to give appropriate directions for that purpose. Alternatively, if he withdrew his remarks, it would then have been open to the tribunal to continue the hearing, with or without an adjournment occasioned by the absence of the applicant.
27. It follows, in our judgment, that the Lamb tribunal was wrong to order discontinuance without notice to the parties in this case.

The second question

28. It follows from our answer to the first question that the applicant's appeal against the Lamb decision succeeds. In these circumstances, what of Southwark's cross-appeal?
29. Mr Sykes submits that the proper order, having allowed the appeal, is for us to direct that the Lamb tribunal be reconvened now to continue hearing the applicant's complaints. Alternatively, he invites us to direct that the matter be re-heard on its merits before a fresh, third tribunal.
30. We reject the first option on practical grounds. Having declared themselves, rightly or wrongly, to be incapable of fairly adjudicating on the complaints it would be patently absurd for us to direct the Lamb tribunal to do just that.
31. The choice appears to be between directing a rehearing before a third tribunal or upholding Southwark's cross-appeal and proceeding on the basis of a strike-out application under rule 13(2)(e).
32. We have no doubt that given the nature of the remarks made by Mr Harry, set against the background of his repeated applications for an adjournment on the grounds of the applicant's absence, coming on top of his being given adjournments to prepare his case during the first ten days of hearing before the Lamb tribunal (reasons paragraph 4) that the proper course for that tribunal to take was to adjourn the case, giving the applicant notice of the possibility of a strike out under rule 13(3) and an opportunity to be heard on the strike out application. In effect, the equivalent of the Warren tribunal hearing on notice, as that one was.
33. The next question is whether, exercising the powers of an Employment Tribunal under section 35(1)(a) ETA 1996, we should strike out the complaints and make an order for costs against the applicant.
34. Mr Sykes takes principally two points against the strike-out order. First, he submits that the scandalous and vexatious threshold has not been crossed on the facts of this case. Secondly he argues that the applicant herself should not be fixed with the conduct of her representative which occurred in her absence, that absence being for good reason, illness, as the Lamb tribunal found.
35. Dealing first with whether Mr Harry's conduct can properly be described as scandalous, Mr Sykes has referred us to the case of R v Hill [1986] CLR 457, in which an observer in the public gallery shouted that the judge was biased and a racist. He was sentenced to seven days in prison for contempt by the judge. The Court of Appeal dismissed his appeal on the ground that the insult deliberately directed at the judge was of a gross and scandalous kind and was a classic example of contempt, palpably calculated to interfere with the administration of justice.
36. We do not accept the distinction which Mr Sykes seeks to draw between that case and the present, namely that Mr Harry did not raise his voice. In our view Mr Harry, in making an unwarranted charge of racial bias was thereby attempting to interfere with the due administration of justice. Indeed, he effectively succeeded, since the Lamb tribunal then rose to the bait and ordered discontinuance with all the prejudice which that course may cause to the respondent. We find that his conduct was scandalous, as did the Warren tribunal and, coming on top of his repeated applications for an adjournment, was also vexatious.
37. Secondly, ought the applicant herself to be fixed with her representative's conduct in her absence? She plainly gave him express instructions to persist in his applications for an adjournment, as appears from the history set out in the Lamb tribunal's reasons. So far as his remarks of less favourable treatment on racial grounds are concerned, we first accept Mr Burns' submission that the structure of rule 13(2)(e) plainly envisages that a case may be struck out where the conduct of proceedings on behalf of a party is scandalous or vexatious. We think that it is sufficient that the party has instructed the representative to conduct the case on her behalf. However secondly, on the particular facts of this case, we are entitled to take into account the contents of an affidavit sworn by the applicant in these appeal proceedings on 11 March 1998, a time when she was represented not by Mr Harry but by solicitors. We think the flavour is caught by these extracts from paragraphs 8 – 9 of that affidavit:

"I can only sum up that I felt that the tribunal both LAMB and WARREN were abusing their power and authority. They were very bulling (sic) to my representative and very polite to the White Respondent Counsel Mr Burns."

I am fortified that the Chairmen LAMB and WARREN were biased and acted improperly. I do not believe that they are fit and proper persons to be Chairmen presiding in cases involving race and sex Discrimination which requires inter alia 'trust, honesty, integrity and fairly in dispensing with justice' (sic)"

38. It is clear to us from that evidence, which we shall not permit Mr Sykes to "withdraw" as he asked us to do, that the applicant herself wholeheartedly endorsed and ratified the remarks made by Mr Harry to the Lamb tribunal.
39. In these circumstances we have concluded that we should ourselves take the same course as that taken by the Warren tribunal and strike out these complaints under rule 13(2)(e) on the grounds that the proceedings were conducted by or on behalf of the applicant scandalously and/or vexatiously.
40. Having so found, we have no doubt that the applicant acted unreasonably in conducting the proceedings within the meaning of rule 12(1), as the Warren tribunal found, and given her means at the time of that hearing, we uphold the costs order then made in favour of the respondent, limited to one day's costs, being an amount assessed in a sum just below the statutory maximum of £500.
41. Accordingly we shall allow both the appeal and cross-appeal against the Lamb tribunal decision and dismiss the appeal against the Warren tribunal decision, which will stand for the reasons which we have given.