United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S SASSOON (Husband)
For the Respondent	MISS M MONDAY (of Counsel) Plumstead Community Law Centre 105 Plumstead High Street London SE18 1SB


 


MR JUSTICE CHARLES:

1. We have before use today a notice of appeal dated 24 April 2001. The Appellant is Mrs Sassoon and I shall refer to the Respondent as the Plumstead Community Law Centre but there are other Respondents to these proceedings. The Notice of Appeal is against a refusal by the Chairman of an Employment Tribunal sitting at London (South) to adjourn a hearing which is due to take place tomorrow for directions in two applications which have been made by Mrs Sassoon.
2. The first application was made by an Originating Application which was dated 2 October 2000. Box 1 of that is in the following terms: "Treatment of me contrary to Sex Discrimination Act 1975 (SDA), Victimisation, Human Rights Act 1998 (HRA), Race Relations Act 1976 (RRA), Health and Safety Act at Work 1974 (HASAWA), etc. (please see the attached)". The attached is attached to box 11 which is a statement of case that is closely typed running into some four pages.
3. The Respondent named in that application is "Plumstead Community Law", that is in box 5, in the box below that there is then an address and then below that is the following: "incl Claudia Slee, Krishen Jalli, Gurdial Shergill, Monika Pirani - Grievance Panel; PCLC Limited and Mark James via his employers.' A notice of appearance was put in to that application the opening sentence of which starts: "The Respondent is a Community Law Centre -------".
4. There then followed correspondence from the Applicant, through her husband who is representing her today, that the notice of appearance was not one on behalf of the people named in the box under the address in box 5 of the Originating Application. Even looking at the names it is clear that the nature of the claims against them relate to their participation in the Community Law Centre. What the Chairman of the Employment Tribunal then did, and on the face of it, we would say sensibly did, was to indicate that the notice of appearance should be treated as a notice of appearance put in on behalf of all the Respondents and the matter should simply proceed from there. Directions were then given in that application and an appeal was made against those directions and that appeal at the moment stands stayed.
5. The other application issued by Mrs Sassoon is dated 11 February 2001. Box 1 of that describes her claims as: "unfair/constructive dismissal following victimisation for pursuing a statutory right, etc." The named Respondents are: "Mr K Heer, PCLC Limited MC Chairman and other Directors i.e. PCLC Limited Management Committee Directors and Plumstead Community Law Centre, PCLC Limited" and then an address is given. Again there is a typed statement of case referred to in box 1 and annexed to box 11 which this time runs to some five pages. The Notice of Appearance states that: "it is filed on behalf of all named Respondents detailed in box 5 of the Originating Application".
6. It is in respect of both those applications that a directions hearing has been set for tomorrow.
7. There was an appeal which was due to be heard yesterday, which was the subject of a notice of appeal dated 19 April. I should record that I adjourned that appeal on what appears to be a misapprehension of the position. What I was informed over the telephone was that the parties were agreed that the appeal should be adjourned and that was the reason why I adjourned it knowing nothing about the case.
8. When this matter came on, Mrs Sassoon was represented by her husband and at one stage during the hearing we were going to deal with that appeal and also, the other appeal which stands stayed and therefore the underlying issues raised on behalf of Mrs Sassoon in those appeals. Mr Sassoon had indicated before the hearing begun that he was not well, and indeed we saw a doctor's certificate. As the hearing progressed, he indicated that he felt he was not able to do justice to his wife's arguments on the main appeals and as a result of that, we indicated that we would confine our attention to the notice of appeal dated 24 April 2001 and the application for costs that is made in respect of that appeal should it be dismissed. Clearly that appeal has to be dealt with today because if it is not, the hearing for directions would simply continue tomorrow.
9. We have had the benefit of some oral submissions on, and also the benefit of written submissions from both sides on, the arguments underlying the main appeals. The issues that arise in them in general terms can be classified under two heading:

1) Mrs Sassoon through her husband says that the decision of the Chairman to treat the notice of appearance as we understand at the moment in the first application only as a notice of appearance on behalf of all the people named in box 5 under the address was an error. He says that the rules require that each individual Respondent should put in an individual notice of appearance which should be signed and should indicate proper representation and, he said that those rules were not complied with. He then says as we understand it, that the Chairman has inappropriately exercised his discretion because the Respondents are experts in the field of employment law and therefore if they do not comply with the rules by dotting every 'I' and crossing every 'T', they should effectively not be allowed to defend with the consequence that Mrs Sassoon should succeed in her claim which he points out, and we accept for present purposes, is a claim that she believes has merit.

2) Bias.

10. We have not gone into the full detail of those arguments but in the exchanges we have had with Mr Sassoon, we have made it clear and we confirm that we have considerable difficulty in accepting his arguments. We of course accept that rules are there and they provide a structure which should be followed, however, the provisions of those rules are not mandatory they are directory. They are designed to enable parties to join issue in a fair and clear way so that the merits of a case can be determined. That applies generally to rules in all divisions of the courts. The comment applies in particular to Employment Tribunals which operate with a degree of informality which is not present in other courts. If one stands back and looks at the origination application and the notice of appearance, Mr Sassoon did not point us to, and we have not been able to find, any issue of unfairness resulting from the Chairman's decision that the notice of appearance put in on behalf of the Community Law Centre should stand as the notice of appearance on behalf of all the individuals.
11. Issues as to detail concerning a particular individual can be covered by directions that are given and, for example, particulars.
12. What lies at the heart of Mrs Sassoon's case is, as I have said earlier, the assertion that "rules are rules" and therefore she should effectively win by procedural default. That is the first element of the appeals.
13. Further as to that element in respect of:

(i) the first set of proceedings, the original Notice of Appearance says that the Respondent is the Community Law Centre and is signed "PCLC" and is therefore a notice of appearance for that centre which as it says is a company limited by guarantee,

(ii) the second set of proceedings the Notice of Appearance is stated to be on behalf of all the named Respondents

and therefore in both sets of proceedings there are Respondents who have put in a Notice of Appearance against whom in any event, the claims would be proceeding and against whom in any event issues of fact would rise which would have to be determined between the parties and as to which directions would be appropriate.

14. The existence of these live issues of fact against those Respondents gives rise to the possibility that a position could be reached that having heard the merits of the case, the Employment Tribunal reached a conclusion which would not warrant decisions being made against the individual Respondents. That is another factor which it was clearly open to the Chairman to take into account in exercising his discretion to take the course he did, which is one that effectively pursues the aim of getting the merits of these disputes heard and determined.
15. The other general line of argument is based on allegations of bias (and/or impropriety) on behalf of the Regional Chairman and a Chairman of the Employment Tribunal. Again in very broad terms and recognising that we have not heard full submissions on them, the matters upon which the allegations of bias (and/or impropriety) are based are effectively:

a) that the decisions that have been made and appealed are plainly wrong,

b) an allegation that discretion appears always to have been exercised in one direction, and

c) a refusal to give reasons.

Again, looked at on a preliminary basis we have difficulty in seeing how those arguments could succeed.

16. The fact that a Chairman decides matters against one party and does so consistently is not an indication of bias particularly, when it appears that the decisions do not involve errors of law. The refusal to give reasons as a matter of discretion is one that can easily be explained in this case on the basis that the reasons are obvious on the face of the documents.
17. Again, I stress that we have not gone into the detail of, and heard full submissions on, the allegations of apparent and/or actual bias (and/or impropriety). Their relevance to the issue that is before us is whether or not we think there is a strong prima facie case, or a reasonably arguable case, on them because if that were the case it would found an argument that the directions hearing should not proceed either because (i) it would proceed on an unfair basis, or (ii) there would be a move of venue or personnel and it would therefore be a waste of time.
18. We have dealt with the allegations of bias (and/or impropriety) in the way that we have because we are not satisfied that there is a strong prima facie case and indeed, we are not satisfied at the moment that there is, or that it is likely to be established that there is, a reasonably arguable case on bias (and/or impropriety).
19. It follows that in our judgment there is no error of law that Mr Sassoon has pointed to on behalf of the Chairman in refusing the adjournment of the hearing tomorrow.
20. The background to this refusal is shown in two letters to which we have been referred dated 16 March. One is at page 17 of the bigger bundle before us, the other is at page 93. This correspondence passing between the Employment Tribunal and Mr Sassoon on behalf of his wife, indicates the view of the Employment Tribunal as to the need for directions to be given. We were told on behalf of the Respondent that they have put in their proposed directions in writing. At that stage it was submitted on their behalf that Mrs Sassoon had not but Mr Sassoon corrected that position and has made it clear to us that she too, through him as we understand it, has put in what he is suggesting should happen by way of directions. We also note that, as recorded in one letter of 16 March, the directions hearing was postponed until tomorrow at the request of Mr Sassoon.
21. It follows in our judgment, that the decision of the Employment Tribunal is far from being one that is close to the limits of the exercise of their discretion rather it is one that seems to us to be clearly right. There is a real need in this case for the merits to be dealt with as soon as is practically possible. It seems to us that the decision of the Chairman not to adjourn furthers that aim and even if, on a further hearing, this Tribunal were to be convinced there had been or was bias or apparent bias and therefore the applications were to be heard by somebody different, it is likely that those directions should in any event further a speedy hearing of the case.
22. I have already dealt with the point on the notices of appearance that it seems to us at present, that even if Mrs Sassoon were to succeed on her arguments, should she pursue them by way of appeal that there is and has always been an active Respondent or Respondents in respect of whom directions are appropriate.
23. Accordingly, it seems to us that this appeal must be dismissed.
24. An application for costs has been made on behalf of the Respondent. Costs are dealt with by Rule 34 of our Rules and, in broad terms, to enable us to award cost, we have to find that an appeal has been pursued unreasonably. I am sorry to have to say that we are clear in our minds that this appeal has been pursued unreasonably by Mrs Sassoon through Mr Sassoon. Mr Sassoon has made a number of submissions to us along the lines that he as a layman thinks that rules should be obeyed and complied with, and all he has been seeking to do was to see that the letter of the law was complied with. He says that the Respondents being lawyers should so comply or pay the consequences. He has also made general submissions to the effect that he is wasting his time if courts and tribunals simply ignore the regulations.
25. Mr Sassoon has demonstrated clearly that he is an intelligent man and it seems to us that he fully understands that the points that he has been raising are not ones which raise points that render a fair disposal of these proceedings on the merits unfair or difficult so far as his wife is concerned. We are also quite satisfied that he is aware that the Chairman of the Employment Tribunal had a discretion as to how matters that are the subject of this appeal and the main appeals should be dealt with. We are also satisfied that he is aware that this Tribunal's jurisdiction is limited to correcting errors of law.
26. It seems to us that this appeal was always hopeless and notwithstanding that Mr Sassoon is a layman in our judgment he, and therefore his wife, have proceeded with this appeal in an unreasonable, and we go further and say vexatious manner. It follows that in our judgment the Respondents are entitled to their costs. We shall assess those costs. We have been provided with a schedule that was prepared in relation to the earlier appeal and totals a sum in the order of £700. We think to award that would give an element of double counting and we will award costs in the sum of £500 to the Respondents.
27. We have expressed preliminary views on the other appeals. In our judgment it was necessary for us to do that to consider on the appeal that was before us whether or not it would effectively be a waste of time for the directions hearing to go ahead. Having expressed those preliminary views in the circumstances of this case, and having regard to the way in which the arguments proceeded, we are of the view the if Mrs Sassoon through Mr Sassoon wishes to proceed with those appeals before this Tribunal, they should do so before a freshly constituted Tribunal. We have already expressed preliminary views and, I think they should start on the hearing of those appeals with a clean sheet.
28. It is quite clear to us that any division of this Tribunal would not be influenced by our preliminary views should these matters be put to them fully.
29. We would however, sound the note of caution to Mrs and Mr Sassoon that in the skeleton argument that is before us on one of those appeals there was also an application for costs. If this Tribunal, as separately constituted was to hear those appeals and was to reach the same conclusions as the ones we have expressed on a preliminary basis, at that stage it seems to us, that the Respondents might waive a transcript of this judgment before that Tribunal in support of a further application for costs. We therefore advise Mr and Mrs Sassoon to consider carefully their position before they proceed with those appeals.
30. Finally I comment on two other points made by Mr Sassoon before us, namely:

1) That in his wife's view her claim has merit.

2) His wife would wish, if she could, to reach a settlement.

As to the second, it is plainly the case that if parties can reach agreement and thereby avoid litigation so much the better and our understanding is that ACAS have already been involved in this case. As to the first, we repeat what we said during the hearing that it seems to us that aim of the parties, perhaps might be better directed to having the merits heard if a settlement cannot be reached rather than by diverting attention on arguments based on procedure and regulations. As to those arguments we have indicated that it seems to us that Mr Sassoon has firmly grabbed the wrong end of the stick and has shaken it vigorously during these proceedings.