United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R SUKUL (of Counsel) Balham Chambers 82 Balham High Road London SW12 9AG


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about Employment Tribunal proceedings, and bias. We will continue to refer to the parties as Applicant and Respondent as at the Employment Tribunal. It is an appeal by the Applicant in proceedings against the Decision of an Employment Tribunal sitting at London (South) on 28 November 2001, sent to the parties on 11 December 2001, constituted as Ms C E Taylor Chairman, Mr C F Patterson and Mr S Shukla. The Applicant was represented by her husband, a general practitioner in medicine, and the Respondent by a solicitor. The Applicant, in substantive proceedings, had claimed against the Respondent that she was the victim of racial discrimination taking place over a period of time from 1997.
2. The Tribunal had made a number of directions for the conduct of the hearing. The parties had been directed to take certain steps. On 28 November 2001 the Employment Tribunal acceded to a request by the Respondent that the case should go no further. In its Decision the Tribunal expressly referred to Rule 11 (3) but used the term "strike out" in its Reasons at paragraph 12. The Tribunal decided as follows:

12 "…this Originating Application be dismissed pursuant to the powers conferred on us by Rule 11 (3) Employment Tribunal Rules of Procedure 2001."

3. The Applicant applied for a review of the decision but on 8 January 2002 the learned Chairman in a Decision sent to the parties on 21 January 2002 decided that the application should be refused pursuant to Rule 13. She again used the term "strike out".
4. It appears to us that the appropriate procedure which the Tribunal was adopting was under Rule 11 (3) as the Tribunal expressly directed itself, and was not under 15 (2) which is the strike out provision and which carries with it a determination that the conduct in the proceedings has been in some way improper. That is because the Tribunal expressly directed itself on the material which it should consider under Rule 11 (3) and cited the Rule in full.
5. The Notice of Appeal in this case challenges the decision to dismiss the appeal. In essence it is a challenge to the decision by the Employment Tribunal to refuse a postponement of the 3-day hearing fixed for 28 November 2001.
6. The case came before a different division of the EAT, Judge Reid QC presiding with members on 10 July 2002 when it was adjourned so that further directions of the EAT could be complied with. These were that the comments of various interested parties be elicited. This has now been achieved and we have the affidavit of the Applicant's husband, Dr Lennard, sworn on 2 March 2002; the Chairman's comments on those dated 13 March 2002; the comments of the Respondents' solicitors Messrs Capsticks of 31 July 2002; and the Chairman's further comments on the Applicant's statement, dated 23 July 2002. This extensive round of further information was triggered by the Applicant's allegation of actual bias made against the Chairman.
7. The substance of the appeal is found in a 12-page Notice of Appeal, drafted on the Applicant's behalf by Mr Sukul, who has appeared again before us today. The grounds of appeal can be summarised as following.

(1) The Tribunal was wrong when it found the Applicant had no intention of attending the hearing today and attempted to excuse herself.

(2) Certain aspects of the submissions made by the Respondents at the hearing were untrue, leading to the ground as it is drafted as follows. "Such a vista is all but ridiculous".

(3) The Tribunal was unaware of certain matters which, had it been made aware of them, would have reached a different conclusion.

(4) The Tribunal made some errors of fact relating to certain of the documents which had been ordered to be disclosed in the course of directions given by the Employment Tribunal.

(5) The fifth ground is a repetition.

(6) The Employment Tribunal failed to pay attention to the health difficulties facing the Applicant and did not give the Applicant's representative an opportunity to be heard and as it was put "without hearing a word from the Applicant", who of course was absent.

(7) The Employment Tribunal failed to carry out its implied statutory requirement to act fairly and reasonably, described as an "Ultra Vires Argument".

(8) The eighth ground is essentially a list of authorities.

8. These allegations of errors of law and a direct attack on the conduct of the Tribunal arose in the following way. The Tribunal decided that the Originating Application presented on 6 February 2001 should be subject to an Interlocutory Hearing in June. At that hearing certain issues were defined including the following:

(1) Whether the Respondent unlawfully discriminated against the Applicant on the ground of her race.

(2) The manner in which it conducted the investigation into her victimisation.

9. The Tribunal recorded that at that hearing the Applicant set out the background evidence upon which she intended to rely. The Chairman then made various directions to ensure that the case was prepared for a hearing. The Tribunal recorded that there had been a series of applications for a postponement: two made in writing; one received on 19 November and the other shortly after, on 20 November. A further application was made on the morning of the hearing.
10. The basis of the application, made initially by Mr Sukul and then by the Applicant's husband on the day, related first to the inability of the Applicant to secure legal representation and secondly to her medical condition. The Applicant had produced a medical note on the day indicating that she was "suffering from gastroenteritis and is presently too unwell to cope with her hearing scheduled for 28/11/01. I have certified her until Friday 30/11/01". A standard sick note accompanied it.
11. The Tribunal considered the history of compliance and non-compliance with the Directions of the Tribunal. It formed the conclusion that the Applicant had no intention of attending the hearing. The last application for postponement had been refused on 26 November by the Regional Chairman, Mr Meeran, as he then was. The Applicant then "went to the doctor the following day in order to obtain a sick note in an attempt to excuse herself from these proceedings". The Employment Tribunal recorded in detail the submissions made by the Applicant's husband and then by the Respondent's solicitor.
12. Much has been made today by Mr Sukul of these submissions and we attempted to focus those submissions upon what the Tribunal found rather than upon what was submitted by the Respondent.
13. It is apparent that the Employment Tribunal may have overlooked one or two minor matters relating to the service of various documents during the course of the period from June to November 2001. This has become clear because of the comments submitted by the Respondent's solicitors. Nevertheless, the substance of the criticism made by the Employment Tribunal remains unalloyed. That is that the Applicant had failed to carry out the directions of the Tribunal in large part and was therefore at fault.
14. The Respondent made an application to strike out but in fact as we have indicated it was treated as an application under Rule 11 (3) which provides:

11 (3) "If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10 (5) and any written answer furnished to the tribunal pursuant to rule 4 (3)".

15. The Tribunal therefore considered the Originating Application, the Notice of Appearance and the submissions of both sides. The Tribunal concluded that the Applicant had made no attempt to comply with the directions. She had failed, as the Tribunal put it, "even to prepare and exchange a witness statement". It found that there was no reason why she could not have prepared her own statement.
16. The Tribunal accepted that the Applicant had attempted to seek representation but had not been wholly successful. She was, we are told, represented by the CRE for a certain period but that representation was declined some time we think in September. But the Tribunal then said:

10 "that does not in our view excuse the Applicant from answering the Respondents' correspondence, providing a list of documents or providing a witness statement to be exchanged on the date fixed…We note the apparent convenience with which the Applicant's abdominal pains, dizziness and nausea happen to coincide with the refused applications for a postponement. We might have taken a more sympathetic view had there been any attempt to comply with the Tribunal's directions."

That is a judgment of the Employment Tribunal upon which the Tribunal had, in our view, ample evidence.

17. The Tribunal went on to say this:

11 "It is the serious obligation of all Applicants who present claims to the Tribunal to assist the Tribunal to further the overriding objective which is to deal with the cases justly. This includes ensuring that the case is dealt with expeditiously and fairly. By failing to comply with the directions and by failing to prepare a witness statement the Applicant has failed in her duty to ensure that the case was dealt with expeditiously and fairly. We are obliged to have regard to fairness to both parties, not just the Applicant. The Respondent has prepared for the hearing and has already expended much time and expense in preparation for this hearing which would be increased if an adjournment were granted."

18. That of course is a reference to Regulation 10, which includes the obligation to observe the overriding objective which the Tribunal there referred to. In those circumstances the Tribunal dismissed the Originating Application.
19. In our view the attack on the substance of the Tribunal's decision must be made within the context of the exercise of a discretion by the Tribunal to award or not award a postponement because the essential submission on behalf of the Applicant was that the hearing should be postponed. We are told today, but this was not made available to the Employment Tribunal, that Mr Sukul was unable to represent the Applicant on the first date but was available on and booked for the second and third day. We do not know what the Tribunal's attitude would have been had it been told that.
20. Nevertheless, the principle in Carter v Credit Change Limited [1979] IRLR 361 and Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 indicates a fairly high threshold for Appellants seeking to challenge the exercise of discretion by a Tribunal. If we are wrong about the approach to this case and deal with this as a matter of substance, that is that the Tribunal erred in law in dismissing the appeal, then we would reach the same conclusion, notwithstanding the lower threshold for successful appeals on that ground.
21. We referred Mr Sukul to a judgment of the Employment Appeal Tribunal under Judge Hargrove QC and members on 12 December 1997, Maloney v London Borough of Hammersmith & Fulham and Others, a case which involved similar circumstances although the hearing in that case was before the Employment Tribunal's schedule for a much longer period. Nevertheless, we note that the Tribunal in that case was upheld when it refused to order a postponement of a hearing when the Applicant was suffering from ill health.
22. This case was appealed by the Applicant to the Court of Appeal, which gave a judgment on 15 April 1999 upholding the majority judgment of the EAT, Sir Gavin Laird CBE dissenting at the EAT. It is instructive to note that the Court of Appeal indicated that in such a case alternative routes to solving the problem facing a Tribunal could have been adopted, as they could in this case, we hold. The Applicant clearly had no witness statement prepared but nevertheless the case could have started. The Employment Tribunal could, for example, have considered the evidence of the Respondent. It could have read further documentation relating to the case in the bundles which had been prepared by the Respondent. Since we are told by Mr Sukul today that the Applicant had, in all but name, a witness statement to read out, or at least to be put together by matching various documents, her case could have commenced. It could have started without Mr Sukul and he could have arrived the next day. The Tribunal could, if it had known that he was briefed, have adjourned it for a day. The Respondent's evidence could have been tested. These sorts of measures could have been taken which would have allowed the case to go on.
23. The Maloney case and this case indicated a Tribunal for very proper reasons wishing to see its case management directions for the disposal of a case with a long history being complied with. We see no error in that approach.
24. It seems to us that there was material upon which the Tribunal could exercise the judgment which it did. What remains then is the criticism made on behalf of the Applicant that the Tribunal was actually biased against her.
25. Having read the copious documentation, as directed by the Registrar here and Judge Reid, we consider that these allegations are based upon the conduct of the hearing on the day. This was, as we have indicated, a fairly short hearing, during which the procedures set out in Rule 11 were fully complied with.
26. We see no substance in the allegation of actual or even apparent bias against the Chairman of the Tribunal or, if it is put more generally, against the Tribunal as a whole. The conduct described is consistent with the proper conduct of an Employment Tribunal. No grounds exist for an allegation of actual bias. The criticisms of apparent bias fall well short of the test in Porter v Magill [2002] AC 357, 494E-G paragraphs 102-3 because a reasonable observer would not form the view that the Employment Tribunal regarded the Applicant with disfavour or the Respondent with favour.
27. The appeal is therefore dismissed.