United Kingdom Employment Appeal Tribunal

APPEARANCES

 

EAT/0315/02/ILB & EAT/1245/02/ILB For the Appellant For the Respondent	MR BRUCE In Person MR D BROWN (Of Counsel)
EAT/0752/02/ILB & EAT/1244/02/ILB For the Appellant For the Respondent	MR D BROWN (Of Counsel) MR BRUCE In Person

JUDGE PETER CLARK

1. We have before us four Ex Parte Preliminary Hearings arising out of this litigation between Mr Bruce and Leeds City Council which has been proceeding in the Leeds Employment Tribunal.

(1) Appeal No 315/02

This is an appeal by Mr Bruce against the decision of a Tribunal sitting at Leeds under the chairmanship of Mrs C Lee promulgated with Extended Reasons on 28 February 2002 awarding costs in the Respondent's favour in the sum of £411.25. Mr Bruce raises arguments in relation to that award summarised in this way, that the Tribunal's decision excluded important events raised at the hearing, the Tribunal erred in law, perversity and errors of principle.

2. Those headings are developed in greater detail in his skeleton argument prepared for the purpose of this hearing. We are satisfied that the matters there raised ought to proceed to a full appeal hearing. There is in addition a free standing allegation in this appeal of actual bias alternatively the appearance of bias, alternatively procedural unfairness by the Tribunal during the hearing before Mrs Lee's Tribunal.
3. For the purpose of that contention it will be necessary for us to direct that each party may lodge Affidavit evidence from up to two witnesses to deal with the matters there raised. Mr Bruce has already filed an Affidavit in these proceedings sworn on 29 April 2002. He has indicated that he may wish also to put in evidence from the helper who assisted him at the hearing before that Tribunal.
4. On the other side, Mr Damien Brown for the Respondent has indicated that his side may wish to put in Affidavit evidence from both the Solicitor and Counsel, not Mr Brown who appeared before Mrs Lee's Tribunal.
5. We make this observation. On Monday 9 December Mr Justice Burton (President) handed down a Practice Direction. Paragraph 11(6)(c) of that Practice Direction notes this warning:

"Unsuccessful pursuit of an allegation of bias or improper conduct, particularly in respect of case management decisions, may put the party raising it at risk of an order for costs."

We have considered whether it is proportionate to permit this ground of appeal to proceed, bearing in mind that this is an appeal against an Order of cost in the sum just over £400.00. We accept Mr Bruce's submission but allegations of misconduct by the Tribunal are always important. We merely underscore the warning which appears in the latest EAT Practice Direction. If it transpires that this is a wholly unmeritorious exercise then he will be at risk of cost.

(2) Appeal No 752/02

6. This is an appeal by the Respondent against the liability decision given by a Tribunal chaired by Mr Colin Grazin promulgated with Extended Reasons on 29 May 2002. By that decision the Tribunal found that the Applicant was unlawfully discriminated against on the grounds of his disability contrary to Sections 4(1) and 5(1) of the Disability Discrimination Act 1995. The enquiry focussed on his non-selection for a post with the Respondent, following interviews with four candidates including the Applicant, for two posts.
7. We have raised with Mr Brown the form of his grounds of appeal as set out in the existing notice. He has indicated six arguments which he wishes to advance in support of the liability appeal. They are first the Tribunal's alleged substitution of its view for that of the Respondent's interviewing panel. Secondly, the Tribunal's wrong approach to the question of justification. Thirdly, a wrong approach to the question of comparators. Fourthly, that at the liability stage the Tribunal decided an issue going to quantum without hearing submissions from the parties. Fifthly, that in reaching their conclusion they conflated discrimination with unfairness contrary to the principles set out by the House of Lords in the case of Zafar v City of Glasgow Council and finally in relation to a finding which it is submitted was made by the Tribunal at the liability stage of subconscious discrimination on the part of the Respondent compared with what is said to be a finding of conscious discrimination at the Remedies stage.
8. We think that those points are arguable but ought to be clearly identified in amended grounds of appeal. In these circumstances we shall direct that the Respondent lodge amended grounds of appeal in this appeal within fourteen days marked for my attention and I will give a direction on paper as to whether or not permission to amend is granted.

(3) Appeal No 1244/02

9. This is a further appeal by the Respondent, this time against the Remedies and Review Decision by the Grazin Tribunal promulgated with Extended Reasons on 17 September 2002. As to this appeal we can take it shortly having considered the grounds of appeal as formulated by Mr Brown. We think that the appeal should proceed on those grounds to a full hearing.

(4) Appeal No 1245/02

10. In this appeal Mr Bruce takes two points. First, he submits that having directed that no reference should be made to his current employer by name during the course of the Remedies Hearing before the Grazin Tribunal, that Tribunal then published the name of the Applicant's current employer in their Remedies Decision reasons. He submits that that is a breach of his right to privacy under Article 8 of the European Conventional Human Rights and consequently amounts to a breach by the Tribunal of the Human Rights Act 1998. We confess that this a novel point that in the overall scheme of this case we are prepared to allow to go forward to a full hearing for argument bilaterally.
11. The second point is that in his witness statement prepared for the purposes of the Remedies Hearing at paragraph 6 he specifically takes the point that although he asked for an apology from the Respondent following the Tribunal's liability decision in his favour promulgated on 29 May 2002 the Respondent failed to respond to that request and he submits as he did below that that is a matter which ought to be taken into account in the quantum of aggravated damages. We pause to observe that the question of aggravated damages in principle and the particular finding made on it, is part of the subject matter of the Respondent's appeal in 1244/02. It seems to us in these circumstances that again Mr Bruce ought to be allowed to take this point in the overall context of the attack on the Grazin Tribunal's Remedies Decision.
12. It follows that each of these appeals will be permitted to proceed to a full hearing. We shall shortly hear the advocates on further directions. But returning to the first appeal we shall direct that the further Affidavit from the Applicant, if so advised, be filed within twenty-one days and that the Affidavit or Affidavits on behalf of the Respondent be filed twenty-one days after receipt of the Applicant's further Affidavit.