United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MISS U BURNHAM (Of Counsel) Instructed by: Fisher Meredith Blue Sky House 405 Kennington Road London SE11 4PT
For the Respondent	MR S HALE (Of Counsel) Instructed by: Messrs Richard Hutchinson & Co Employment Law Solicitors 9 College Street Nottingham NG1 5AQ

HIS HONOUR JUDGE D SEROTA QC

Introduction

1. This is an appeal by the Claimant from a decision of the Employment Tribunal at London South. The Chairman was Mrs J Wade. The decision was sent to the parties on 3 June 2004. During the course of the proceedings the Claimant abandoned claims for discrimination on the grounds of race, wrongful dismissal, breach of contract and failure to pay holiday pay. He continued with his claim for unfair dismissal which was dismissed by the Employment Tribunal.
2. The thrust of the appeal is that the Claimant was treated unfairly by the Employment Tribunal which gave him an unjust "costs warning" which placed such pressure upon him that he felt obliged to abandon the claims we have mentioned.
3. On 11 October 2004 Her Honour Judge Wakefield referred the matter to a preliminary hearing and on 2 December 2004 His Honour Judge Richardson referred the matter to a full hearing.
4. Her Honour Judge Wakefield required the Claimant to lodge an affidavit upon which the Chairman and Members of the Employment Tribunal were to be asked to comment. The Respondent was permitted to serve an affidavit in response. Affidavits were lodged by the Claimant and a friend who accompanied him to the Employment Tribunal, Ms Louise Ezeonyim. Ms Ezeonyim is a solicitor who works for the Disability Law Service. She says she is a public law specialist with no experience of tribunal practice procedure or employment law.
5. Affidavits and comment were received from Respondents and also comments were received from the Chairman and Members of the Employment Tribunal. It has to be said that there is some conflict between the various affidavits and statements. No application has been made for cross-examination.

Factual Background

6. The Claimant describes himself as being of mixed (white and black African) ethnicity. He was employed by the Respondent from 8 February 1993 at 97 Borough High Street. He was manager of the betting shop at that address from January 2000.
7. From approximately December 2002 the Claimant began to complain about his salary. The Employment Tribunal concluded (see paragraph 9:4) that his salary was in the mid-range for his type of shop and that the Respondent's criteria for assessing salaries had been applied correctly in his case.
8. In 2003 the employment relationship began to turn sour. The Claimant was disciplined for closing his shop early. He was given a final written warning on 16 May 2003. The Employment Tribunal considered that he could have been dismissed but the penalty was mitigated because he complained of racial bullying and harassment. He had not previously reported any instances of racial bullying or harassment. The Employment Tribunal concluded that this bullying or harassment was either insignificant or had not in fact occurred.
9. In August 2003 concern was raised by the Respondent about "ambiguous bets". The Employment Tribunal described ambiguous bets at paragraph 9:11 in this way:

"An ambiguous bet is a bet which is written out by a customer in such a way as to have a number of different interpretations. This increases the customer's chance of winning because they can then claim that the winning interpretation is the correct interpretation to place on the ambiguous bet. It places the shop staff in a very difficult position because they wish to be fair to customers whilst guarding against any sort of fraud. Ambiguous bets are well known as a form of fraud in the betting industry and procedures are in place to ensure that they are guarded against."

10. The Respondent's procedures required that payments should not be made on ambiguous bets without reference to the District Manager. Mr Adese was not only accepting ambiguous bets but was also paying out such bets without reference to his District Manager. The Employment Tribunal found that he had, despite instructions to the contrary, paid out some 15 ambiguous bets to a value of some £10,000 in August or September. He was suspended on 30 September 2003. An investigation meeting took place on 8 October 2003. At the meeting, Mr Meacock, a Security Investigator employed by the Respondent, gave the Claimant a dossier of 141 pages which clearly set out the case against him. He was given the opportunity to explain why he had accepted the ambiguous bets but at the end of the meeting had been unable to do so. The Applicant claimed he should have been given the opportunity to examine all of the bets placed and paid out during the period in question. The Employment Tribunal did not agree that it was unfair for the Respondent not to have provided the Claimant with this information because it was unnecessary for the Claimant to prove that by paying out on fifteen ambiguous bets he had only paid out on a small percentage of bets placed. This was accepted by the Respondent. The Respondent's case was that fifteen ambiguous bets paid out was fifteen bets too many. Further, it was not controversial that the customers who placed the ambiguous bets did not also place losing bets (if the customers in question had not been fraudsters one might expect the ambiguous bets to be genuine mistakes and for those customers to have placed losing bets as well. This was not the case.) Disclosure of all betting slips would have not assisted the Claimant in any way, in the view of the Employment Tribunal, as he did not dispute the fact that the ambiguous bets in question were not accompanied by other bets.
11. After the conclusion of the investigation meeting the Claimant was informed that he would need to attend a disciplinary meeting. The meeting was fixed for 13 October 2003 and the Claimant did not attend. It appears that he may have been unwell. However, he never told the Respondent this was the case and indeed told the Respondent he would not be attending. The Employment Tribunal found there had been no unfairness in the Respondent proceeding in his absence. The Claimant was dismissed for gross misconduct on 16 October 2003.

Proceedings in the Employment Tribunal

12. The Claimant presented his Originating Application on 15 January 2004. At that time he was represented by solicitors, Messrs. Fisher Meredith, who have represented him before the EAT. In his Originating Application he raised claims of discrimination on the grounds of race, unfair and wrongful dismissal, claims for breach of contract including unlawful deduction from wages, and claims in respect of holiday pay. We need to note at this stage that part of his claim for discrimination was that the Respondent had failed to increase his salary commensurate with the shop's turnover, whereas white managers did receive pay increases commensurate with turnover.
13. The Respondent made a request for further information and in response the Claimant raised an issue as to other employees who had paid out on ambiguous bets without being disciplined, as he was. He also mentioned that he had prepared and supplied a dossier to the Respondent.
14. On 3 February 2004 the Claimant served a Race Relations Act questionnaire on the Respondent, which responded and provided a fair amount of detailed information. The information supplied included a schedule giving information on managers within the London region as at 16 October 2003 by reference to their employee numbers, region, job title, grade, start date, ethnic code, ethnic description and current salary. The Respondent declined "for reasons of confidentiality" to show the name of the managers and their shops. The Respondent also stated its systems information was unable to backdate and show salary as at 16 October 2003 as well as show information on general disciplinary action, because this was not monitored on its systems. Dismissals only were monitored. Further, information regarding turnover in all London shops was company sensitive information which the Finance Department was unwilling to release. Details were also supplied of all employees from London branches dismissed within the last two years. However, for reasons of confidentiality the report did not identify names or locations. Systems information was not available in relation to employees who had been disciplined but not dismissed.
15. We note that the Claimant had been asked in the Respondent's request for further information to state which White Shop Managers had received pay increases. The Claimant stated as follows:

"The Applicant is reluctant to name the Managers at this stage, since pay information was disclosed to him confidentially. However, he is confident that the pay records and trading account disclosed during the course of these proceedings, will reveal that in comparison with three other shops which were on a lesser turnover than Shop LC1975, the Manager in these shops, who were of White ethnic origin were paid more than the Applicant …"

The Claimant therefore was aware of possible comparators but had chosen not to identify them.

16. The Respondent disputed the Claimant's allegations in their entirety.
17. We believe that the hearing date was fixed for 19 May 2004 on or about 17 March 2004. On that occasion directions were given in relation to disclosure which was to take place within fourteen days. The Respondent maintained it complied with its obligations to give disclosure and indeed produced a bundle for the hearing of something just over 400 pages. On 27 April 2004 the Claimant made a request for specific disclosure of documents. Among the documents that it sought were the following:

"2. Please supply information on all managers within the London Region as at 16 October 2003, by reference to any disciplinary action taken (as requested at 6.5.7 of the RRA questionnaire).

Reason for request: Our client asserts that this information is in the Respondent's possession; even though it may not be on the Respondent's system, we submit that this information must be held somewhere. Indeed, the Respondent has been able to provide full back-dated information in connection with the disciplinary action taken against the Applicant. This information is directly relevant to the issues in this case and should be disclosed.

5. Please provide pay scales for managers as at 16 October 2003 commensurate with shop turnover/grades, also for the years 2000, 2001, 2002 and 2003.

10. In or around July 2002, Acting Manager Ian Prior and Jeanette McAllister accepted several ambiguous bets which led to a loss to the Respondent of around £10,000. At this time, the Applicant collated and filed a report with the Security Department. He collated documents (including the ambiguous bets) and sent them to the security department with a brief handwritten explanation of the incident. The Applicant believes that this remains in the Respondent's possession and requests disclosure of the report.

11. Please provide a list of all bets placed on each of the dates in question (between May and September 2003) when it was alleged that the Applicant paid out on ambiguous bets."

18. In a letter dated 30 April 2004 the Claimant's solicitors sought additional disclosure including the following:

"Please provide information on the salaries of all managers in John Casey and John Murphy's areas as at 16.10.03. Whilst your client's computerised systems may not be able to backdate, our client believes that this information is in your client's possession; indeed you have been able to produce specific backdated information in relation to our client."

19. It is perhaps of assistance that we record at this stage, that where an employer fails adequately to answer a questionnaire the Employment Tribunal is entitled in appropriate cases to draw adverse inferences. See Race Relations (Questions and Replies) Order 1977 and s65 (2) (b) of the Act. In relation to issues of disclosure the same principles apply as under the CPR. It is well established that for the purposes of disclosure a party cannot be ordered to create a document but only to disclose existing documents or to disclose what has become of documents no longer in his control. Further, disclosure will now be ordered in accordance with the overriding objective. The notes to the current edition of the White Book suggest that:

"The overriding principle is that disclosure should be restricted to what is necessary in the individual case. (31:0:5)"

By virtue of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, the Tribunal has power to direct written answers to questions put to a party by the Tribunal. See rule 4 of the Rules of Procedure.

20. We have digressed from the chronological narrative in order to set in context further correspondence and disputes relating to disclosure which have played a significant part in the appeal.
21. On 27 April 2003 the Respondent's solicitors Messrs. Richard Hutchinson & Co. wrote to the Claimant's solicitors without prejudice save as to costs. We have not seen this letter but we have been told that it put the Claimant on notice that the Respondent might seek an order for costs, having made an offer to settle which had been rejected, because the Claimant's claims were misconceived. Ms Burnham submitted that the Employment Tribunal was aware of this letter or should have been aware of this letter. The Respondent's solicitor has maintained this letter was unknown to the Employment Tribunal. We feel bound to disagree emphatically with Ms Burnham. There is no evidence at all that the Employment Tribunal was aware of this letter and as it was expressed to be without prejudice save as to costs, it would have been quite inappropriate had this letter been shown to the Employment Tribunal.
22. On 7 May 2004 Messrs Richard Hutchinson & Co. replied to Fisher Meredith's request for specific disclosure dated 27 April 2004. Further documentation and information was supplied but the Respondent resisted making further disclosure or supplying further information in a number of respects. In relation to request no. 2 (information on all managers within the London Region by reference to disciplinary action) the Respondents stated:

"This is an unreasonable request and our clients do not have a system in place so that they can obtain that information from their records. If you would provide details of a comparator our clients will check that individual's file and provide such information as they can bearing also in mind their obligations under the Data Protection Act. So far as we are aware, there is no such comparator."

23. In relation to request no. 5 (pay scales of managers as at 16 October 2003), the Respondent's state:

"We do not have these documents."

24. In relation to item 10 (the report filed by the Claimant with the dossier he had collated about other ambiguous bets) the Respondents say:

"We do not have a Report in our possession."

25. In relation to request no. 11 (the list of bets) the Respondent said as follows:

"A list of bets is only retained for a period of 3 months on the system. Hard copies of all bets are only retained for one month. Of course your request would amount to approximately 4,000 betting slips. In any event we do not have these."

26. In relation to the additional request for information on the salaries of all managers within the area of two named regional managers, the Respondents said:

"Our clients have already produced the pay details of all Managers as at January 2004. This is at pages 277 - 288 of the bundle. We do not have any other documents that we can provide."

27. On 7 May 2004 the Claimant sought an order for disclosure of the documents it had sought in its letter of 27 April 2004 from the Employment Tribunal.
28. On 12 May 2004 the Chairman ordered the Respondent to give disclosure in accordance with the Claimant's application without having heard or sought representations from the Respondent.
29. On 13 May 2004 the Respondent applied for the order for disclosure to be set aside. The Respondent's solicitor maintained that it had made disclosure in accordance with the order of 17 March and had prepared an agreed bundle extending to over 400 pages. A copy of the letter to Messrs Fisher Meredith was included and Richard Hutchinson said:

"We have dealt in entirety with their request in so far as we are able… The case remains listed for hearing commencing19 May and we certainly object to the production at such a late stage of any further documents…In all the circumstances we ask the Tribunal to set aside its order of 12 May."

30. The Respondent did provide additional documents including trading accounts for the Claimant's shop and detailed trading accounts for the whole London region which showed the average for other London shops but not, we believe, the results for individual shops. These documents were supplied shortly before the hearing.
31. The Employment Tribunal, in a letter we have not seen, directed that issues related to disclosure should be raised at the beginning of the hearing.
32. Shortly before the hearing of 19 May the Claimant dispensed with the services of Fisher Meredith and came to be represented by Mr Neil Sloan, a barrister, under the aegis of the Free Representation Unit. A day or two before the hearing Mr Sloan wrote to the Employment Tribunal to seek an adjournment, as the trading accounts we have referred to had only just been received, and the Claimant wanted time to go through them. He also said that other disclosure sought from the Respondent had not been forthcoming. The Chairman refused to adjourn the hearing.
33. When the Claimant attended the hearing he already knew (and we are satisfied that the Employment Tribunal did not) that the Respondent had already threatened to make an application for costs should his claim be unsuccessful.
34. We now need to say something about events at the hearing. As we have already said, we have had notes and comments from the Chairman and lay members of the Employment Tribunal, the affidavits of the Claimant and Ms Ezeonyim, together with a letter from the Respondent's Retail Human Resources Manager, Mrs Morrish, and an affidavit and notes from the solicitor who represented the Respondent at the hearing, Mr Richard Hutchinson. There is some conflict between the evidence of the persons we have mentioned. There has been no application for cross-examination. Further, there is no material from Mr Sloan before us. The Claimant's solicitors invited him to comment on the affidavits of the Claimant and Ms Ezeonyim in a letter written to the FRU. Mr Sloan has clearly fallen out with the FRU and we are uncertain whether Fisher Meredith's letter was sent on to him or received by him. We bear in mind that serious allegations of incompetence are made against him. It is clear from one letter that we have seen (page 148) being a letter he wrote to Fisher Meredith dated 1 November 2004 that he has provided a full response about the Claimant's complaints to the FRU. We have not seen this response.
35. It seems quite clear that the issue of disclosure was raised at the outset of the proceedings.
36. The Claimant and Ms Ezeonyim say that the question of adjournment was raised at the outset of the hearing and maintain they instructed Mr Sloan to apply for an adjournment but he did not do so. The Claimant says this in his affidavit:

"I had instructed NS (Mr Sloan) to request an adjournment on the basis of material non-disclosure. The Respondent had failed to disclose certain documents pertinent to my case, which I had requested under the Race Relations Act questionnaire and the specific disclosure process. I instructed NS that even if the Tribunal refused to adjourn the hearing, he should ask the Tribunal to draw an inference from the Respondent's refusal to disclose or state that I reserved my right to appeal to the EAT. NS failed to carry out my instructions. In fact, the Chair raised the point asking NS whether he wished to renew the application for an adjournment which he had previously made on paper…"

37. Mrs Wade in her notes recorded the following on 19 May:

"The Claimant is requesting an adjournment for disclosure. He has had insufficient time to consider the trading accounts (these had just recently been disclosed) and he had not had full disclosure of certain documents (unclear which). The request was not pursued."

38. Mrs Wade goes on to note that in its Extended Reasons promulgated on 21 July 2004 at paragraph 9:17 the Tribunal said:

"The issue of disclosure of 'other documents' was revisited despite the fact that the Claimant had not pursued a request for an adjournment". [after having raised it at the outset of the hearing]

The Employment Tribunal there had concluded that it was not necessary for the Claimant, in order to be able to prove his case, to have sight of all bets placed and paid out during the period in question.

39. Mr Hutchinson made a note at the time that the application for an adjournment had been withdrawn and Mr Sloan was to draw up a list of additional documents that had not been disclosed and which he wanted. However, no list was ever provided. Mrs Morrish, the Respondent's Retail Human Resources Manager, wrote that a request for adjournment had been made but the Claimant's representative could not indicate which documents had not been disclosed and the request was withdrawn when it was conceded that documents had been disclosed where they existed.
40. We feel obliged to note at this stage that the complaint that documents should have been disclosed which were "vital to the Claimant's case" is far from clear. It was by no means clear that the Claimant was entitled to further disclosure. The Respondent was under no obligation to create documents which did not exist. It had offered to supply documents relative to specific comparators in relation to disciplinary action but the Claimant chose not to identify any specific comparators either in relation to pay or disciplinary action. The supply of information in relation to the turnover and profits of all London shops and the identity of the managers might well have been considered, at this late stage in the proceedings, to be wholly disproportionate in circumstances where the Respondent had offered and was willing to supply information in relation to named comparators. Mr Hale, who appeared on behalf of the Respondent categorised the requests as being "fishing" and there does seem to be some force in that submission.
41. The Claimant was making claims in relation to unfair dismissal as well as discrimination. Mr Sloan agreed with Mr Hutchinson that the Respondent should go first, as it would in cases of unfair dismissal, but not usually in cases of discrimination. It is not uncommon, however, where a Claimant makes claims of unfair dismissal as well as discrimination, for there to be an agreement that the employer should start first. There is nothing unusual or startling about what happened in this case and nothing that we can see would have disadvantaged or prejudiced the Claimant. We cannot accept that Mr Sloan's agreement was as "startling" or unusual as Ms Burnham submitted, so as to put the Tribunal on notice as to his ineptitude.
42. The Respondent's witnesses were called. Mr Sloan did not cross-examine them in relation to the discrimination claim. He is roundly criticised for this by Ms Burnham. The Employment Tribunal also was concerned that he was not putting a case of discrimination to the Respondent's witnesses. In fairness to Mr Sloan, however, the only case he could put would have been based upon the Claimant's witness statement which was wholly unspecific in relation to differential treatment, save in relation to one named manager and the manner in which he had been disciplined. This matter does seem to have been explored.
43. The Claimant maintains that on the second day of the hearing he was worried and concerned about Mr Sloan's "inability to properly conduct my case". He asked him if he wished to withdraw so that he could request an adjournment but Mr Sloan, according to the Claimant, "advised that the Tribunal would not agree to adjourn and the best thing to do was for him to continue to represent me".

10. On the second day, the evidence of Mr Casey and Mr Harris was heard. Again, NS failed to put relevant questions to the witnesses. When NS finished cross-examining the fourth and last witness, the Chair asked us all to leave the room for five minutes.

11. When we returned, the Chair said that she was extremely concerned about my case, in particular, in relation to the race discrimination case, as relevant questions had not been put forward to the Respondent's witnesses. She said that she recognised that it was the Tribunal's role to strike a balance between the parties given the inexperience of my representative, but she could not help NS anymore. The Chairman then said, "NS, you are aware that the Respondent can seek a costs order against your client. I suggest that you speak to your client about continuing with his case, particularly the race discrimination claim". At this stage, NS seemed to panic. He began sweating and it sounded as though he was having difficulty breathing. He asked the Chair if he could have a short recess to take instructions from his solicitor. The Chair then pointed out to NS that he did not have an instructing solicitor, as he was a volunteer from the Free Representation Unit."

44. One of the lay members, Mrs Macer recorded (and Mrs Wade agrees) that she said something along these lines:

"The Chairman said that the Employment Tribunal was concerned over the evidence heard and looked at how an Employment Tribunal makes a decision. They looked at the documents and witnesses. Our concern looking at some of the points raised by the Claimant is that questions were not asked of the witnesses. There is a risk that the Respondents may make an application at the end of the hearing for costs. The Chairman said she would like his representative to discuss with Mr Adese whether some of the allegations is (sic) made are likely to succeed. She said she hadn't seen his witness statement and this was just an observation at this stage."

45. This exchange took place at approximately 11.45 am. Mrs Wade makes clear that she did not say that the opinion of the Tribunal was that the Claimant's case was "misconceived, unreasonable etc". The concerns of the Employment Tribunal were expressed because nothing of the race discrimination case was put in cross-examination to the Respondent's witnesses. Further, neither the IT1 nor the statement of the Appellant disclosed any detail of his race discrimination allegations. Mrs Wade commented that:

"Contrary to what the Appellant says in paragraph 2 of his affidavit the Chairman is not aware of any documents which established a prima facie case of race discrimination."

46. Mrs Wade explained:

"The objective of the Tribunal in raising its concerns was to alert the Appellant to a possible risk which he was facing. We considered that it was in the interests of justice, and to his benefit, for him to be explicitly told of our concerns when they arose."

47. Mrs Wade in her letter of 22 December 2004 says this:

"The "cost warning" was given at about 11.45am after the Tribunal had taken a short break and before Mr Casey, witness for the Respondent gave his evidence. At 12.10pm Mr Adese was sworn and he read out some of his statement before lunch, his representative finish (sic) reading his statement for him as Mr Adese was very upset. The Tribunal then took a lunch break from 1.00 until 2.10. After lunch the Claimant's representative read out a statement agreed by his client. This statement was read out before the Claimant was cross-examined."

Some remark was made by the Employment Tribunal before the mid-day adjournment encouraging Mr Sloan to take instructions from the Claimant over the adjournment.

48. We refer to the Claimant's affidavit. We feel bound to point out that it contains a significant amount of what might be described as submissions, which should more appropriately have been confined to Ms Burnham's skeleton argument.
49. The Claimant complains that Mr Sloan "just let me read out my statement without stopping to refer to documents". He maintains that Ms Ezeonyim was telling him he should interrupt and ask questions and refer to documents but Mr Sloan declined to do so. The Claimant then said he began referring to relevant documents himself but found this tremendously stressful and broke down several times whilst giving evidence. Having read his statement Mr Sloan did not ask further questions in chief. It is right to say that the suggestion that the Claimant broke down on several occasions is not recorded in terms by members of the Employment Tribunal or recalled by the Respondent's witnesses or solicitor although Mr Hutchinson records that the Claimant was in a distressed state and found great difficulty in reading out his witness statement. The Chairman noted that, contrary to what is in his affidavit, the Claimant did not complete reading his witness statement because Mr Sloan finished reading it for him as the Claimant was very upset.
50. We now turn to deal with what took place after the adjournment. The Claimant deals with this at paragraphs 13 – 17 of his affidavit:

13. About 20 minutes later we broke for lunch. Before we left the room, the Chair repeated her costs warning and she reminded NS to, "Please discuss the case with Mr Adese". Her tone was stern and serious. She said that she was not prejudging the situation and whilst she was not inviting the Respondent to make a costs application, the Respondent's representative was well aware of the options available to him.

14. As soon as we left the room, the Respondent's representative took NS aside. I heard him tell NS that he would strenuously resist any application to adjourn on the basis that I was not fit to continue. He then saw that I had overheard and led NS away out of earshot.

15. NS then came to speak to me and Louise. He said, "Now, I do not know what you are thinking but 1 want you to withdraw your race claim and all of the other claims except for the unfair dismissal." He said that the Respondent's representative had told him that if I withdrew the entire case, then they would not pursue me for costs. Louise asked NS why I had to withdraw the case, to which he replied, "The Respondent's representative wants you to and the Chairman wants you to". He told me that if I withdrew the race discrimination part, then no costs order would be made against me and I would have a far better chance of winning the unfair dismissal claim. I was adamant that I did not want to withdraw. NS could give me no good reason why I should withdraw other than that the Respondent and Chair said I should. I felt extremely pressurised. NS seemed to be panicking. He became agitated and raised his voice saying, "You MUST withdraw!" Louise told him not to shout, but to explain his reasons and set out the pros and cons for me. He did not do so. It took the best part of an hour for Louise to finally persuade me that it would be better if I withdrew. The sole reason for this is that I did not want to risk a costs order being made against me. I was heartbroken to have to do this.

16. NS said he did not know what he would say to the Tribunal, so Louise and I drafted a statement for NS to read out. In this statement, I said that in light of the costs warning received from the Tribunal I had decided to withdraw all but the unfair dismissal part of my claim. I also stated that I felt my case had been hampered by non-disclosure of documents by the Respondent. I made it clear in that statement that the only reason for the withdrawal of the claims was the costs warning.

17. When we returned to the Tribunal room, the Chair immediately asked NS whether he had discussed with me "the concerns raised this morning". NS said that he had and read out the statement. He then handed a copy of the statement to the Chair. When the Chair heard and read the statement, she said, "I want you to say 'in the light of concerns expressed by the Chair" not 'cost warning' ". Louise wrote a note to NS to say "NO IT WAS THE COSTS WARNING", but NS wrote back to say "IT DOESN'T MATTER".

The Claimant's account is supported by Ms Ezeonyim.

51. Ms Ezeonyim had the following to say:

24. Colin and I then left NS in the Applicant's waiting room to think about his advice. The pressure was immense; I telephoned all of the employment lawyers that I knew to try and get some advice as to what to do. I could not get through to anybody. I did not know what to do. I felt that NS had placed me in an intractable position. I have had no professional experience of employment law whatsoever and was in no position to assess the merits of the case. It is true that I believed that NS was extremely incompetent but I was still unable to form my own professional judgement as to the strength or weakness of Colin's case. Being entirely unfamiliar with tribunal procedure, I did not understand either the way in which the costs direction was exercised. In the civil area of law which I practice, the CPR costs rules apply. To this extent, I was extremely worried that a costs order would be made and that Colin may end up with a debt that I knew he simply could not pay. I attended the hearing as a friend, not as a legal advisor. Despite my misgivings about NS's competence, in the end it was my worries about the financial implications for Colin that led me to encourage him to heed NS's advice. I have to say that even at this stage, I was very uncomfortable with the decision that Colin now felt compelled to take.

25. We returned to the waiting room and I told NS that Colin had decided to withdraw all but the unfair dismissal claim. NS then handed me a handwritten letter addressed to Colin which said, "Following the events of today and the comments by the Tribunal, I write to advise you that you should withdraw your race discrimination, breach of contract/unlawful deduction of wages and holiday pay claim. Mr Hutchinson has indicated to me that if you withdraw your whole claim, then he will not seek costs against you. Under all the circumstances, you must consider this offer carefully. I will still continue to assist in your claim if you so desire."

Mr Sloan's letter is at page 146 of the bundle.

52. Mr Sloan had agreed with Mr Hutchinson that should the Claimant withdraw his claims for discrimination on the grounds of race, breach of contract, unlawful deduction of wages and his claim for holiday pay, Mr Hutchinson would not seek an order for costs against him. The outcome was that Ms Ezeonyim drafted what we consider to be a carefully crafted note which is at page 147 of the bundle:

"The Applicant has now considered his case carefully in the light of the warning which he received from the Tribunal today.

Although Mr Adese strongly feels that he was racially discriminated against on the grounds of his race. He has now decided to withdraw this claim together with the breach of contract/ unlawful deduction of wages.

The Applicant considers that he is handicapped to prove these matters in law. He is of limited means and on unemployment benefit and cannot risk any penalty in relation to costs.

Also, if the documents requested under the Race Relations Act questionnaire had been disclosed i.e. disciplinary records of the managers in Mr Murphy and Mr Casey's areas had been disclosed together with their salary scales / grade of their shops then it may have helped him prove his case.

It is for the above reasons he has decided to withdraw the race discrimination / breach of contract / unlawful deduction."

53. The Chairman has commented at page 135 as follows:

"The withdrawal of the race discrimination and other complaints

I note from the Affidavits that it was Ms Ezeonyim who finally persuaded the Appellant to withdraw the majority of his complaints. At paragraph 21 of his Affidavit the Appellant comments that we did not record the "costs warning" in our Decision. The Claimant said in a prepared statement that he was withdrawing claims through his own volition and following advice and that is recorded in paragraph 4 of the Decision.

As is recorded in paragraph 17 of the Affidavit and paragraph 28 of Ms Ezeonyim's, not only did Mr Adese read out his short statement giving his decision to withdraw the majority of his claim, but also a discussion took place. The Tribunal does not recall that what was said was equivocal."

54. The notes made by the Chairman at 140 are in the following terms:

"The 'cost warning' was given at about 11.45 am after the Tribunal had taken a short break and before Mr Casey, witness for the Respondent gave his evidence. At 12.10pm Mr Adese was sworn and he read out some of his statement before lunch, his representative finish (sic) reading his statement for him as Mr Adese was very upset. The Tribunal then took a lunch break from 1.00 until 2.10. After lunch the Claimant's representative read out a statement agreed by his client. This statement was read out before the Claimant was cross-examined."

Mrs Wade recalls that the note was read out and handed to the Tribunal and placed upon the Tribunal file. It must have been retrieved by the Claimant because the original can no longer be found on the Tribunal's files while the Claimant, according to Ms Burnham, had the original which he was able to hand to his solicitors. Mrs Wade then recorded this after having noted the terms of the note read out by Mr Sloan:

"The ET has checked: this does not mean that Mr Adese has felt compelled to withdraw but has chosen to do so on advice from his legal team."

55. The Claimant and Ms Ezeonyim assert that Mr Sloan was totally and obviously incompetent. He is referred to in paragraph 19 of the Claimant's affidavit as being "grossly incompetent". In his skeleton argument , Mr Hale, who was not present at the Tribunal, was minded to accept that it was common ground that Mr Sloan had conducted the case less than competently. This does not appear to have been the view of Mr Hutchinson and Mrs Morrish who were present. The Chairman in her note at page 134 states:

"Mr Sloan, FRU representative

The Tribunal did not notice any signs of panic or inability to use his judgment."

56. The Claimant and Ms Ezeonyim make the following criticisms of Mr Sloan (a) he appeared to be suffering from stage fright and could not address the Tribunal; (b) he could not explain the Claimant's case; (c) he could not explain which documents were not disclosed and why they were relevant; (d) he permitted the Respondent to go first and call witnesses first (as we have already said this is not an infrequent practice when claims are made both of unfair dismissal and discrimination); (e) he failed to make proper closing submissions and handed in written submissions although the case had changed since he prepared his written submissions; (f) he was led by the Respondent's solicitor.
57. We should recall what the Claimant says at paragraph 19 of his affidavit:

"Not only was he grossly incompetent in all matters but was also clearly led by the Respondent's representative. NS's performance was so poor that we suffered derision from the Respondent's representative throughout. NS's ineptitude was clear to the Tribunal. I kept hoping that his performance would improve, but it did not. Following the hearing, NS was very apologetic and asked me not to make a complaint or sue him for negligence. He said he would assist with my appeal, should I lose. I lodged a formal complaint with the Free Representation Unit regarding his conduct which is still being investigated."

58. We should recall what Mrs Morrish, the Retail Human Resources Manager of the Respondent, had to say:

"The Chairman acted with utmost patience and understanding as to Mr Adese's representative's lack of tribunal experience which was not helped by Mr Adese and his friend constantly speaking to him and passing him notes thereby interrupting his concentration. The Chairman attempted to help him by reminding him of the need to ask questions relating to the discrimination element of the claim."

She denied that Mr Sloan suffered derision from Mr Hutchinson. She maintained that everybody acted entirely professionally towards him. It was obvious that he was inexperienced but the Chairman and panel and all parties in attendance were entirely sympathetic to his lack of experience and the case he was attempting to conduct.

59. Mr Hutchinson agreed that Mr Sloan was nervous but:

"He was perfectly capable of putting a large number of questions to my client's witnesses. However, his cross-examination did relate mainly to the issues of unfair dismissal and the Chairman was clearly concerned about the manner in which the case was being run by the Appellant and his adviser."

Mr Hutchinson later refers to Mr Sloan as being "inexperienced".

60. During the hearing we enquired of Ms Burnham whether proceedings had been taken against Mr Sloan for negligence and we were told that no proceedings had been commenced.
61. We feel bound to point out that the EAT has great difficulty when it is asked to chose between rival accounts, where evidence has not been subject to cross-examination. We have in mind what Rimer J. said in Shodeke v Hill UKEAT/0394/00 judgment delivered 6 May 2004. He had this to say at paragraph 14:

"To the extent, therefore, that the evidence and written representations advance different assertions as to what happened before the tribunal, we have nothing more than the competing assertions on paper. We are nevertheless (in effect) asked by Mr Panton to prefer Ms Shodeke's account, and to reject the opposing accounts. Mr Panton did not explain by reference to what principle of judgment we are expected to do that. Usually, of course, in the absence of cross-examination (leaving aside those rare cases in which one side's account is so manifestly incredible that it can safely be disregarded), a court or tribunal faced with conflicting factual accounts on paper is not in any position to make findings as to which of the accounts is to be preferred."

The EAT on that occasion declined to rule upon disputed issues. Rimer J. said in paragraph 82:

"It appears to us in that, in those circumstances, we cannot simply choose between the rival accounts and make findings of fact about the disputed matters. That means, we consider, that Ms Shodeke's appeal on the present ground must fail, since the burden is on her to satisfy us that her complaints are justified whereas we hold that she has simply not proved them to the required standard."

62. We now turn to consider the grounds of appeal. Ms Burnham firstly submits that the Employment Tribunal should have at the outset of the case resolved the issue as to disclosure because the need was "evident" from the documents before the Employment Tribunal. Having regard to the overriding objective to ensure fairness and equality to process the Employment Tribunal should have taken it upon itself to resolve the issue. We would observe, of course, that the issue had been raised and Mr Sloan had chosen not to pursue the issue of disclosure. It is by no means clear, as we have already noted, that the Claimant was bound to obtain further documents (or information). The issue of disclosure was not raised until the time when the Claimant chose to withdraw his claims. It seems to us that it cannot be right for the Employment Tribunal to argue one side's case and make orders that have not been sought or encourage of its own motion a party to make an application it has chosen not to make. There may be exceptional circumstances where a Tribunal might be justified in adopting such a course but such matters are in any event matters of case management.
63. It is then said that the Employment Tribunal failed to ensure that the Claimant had a fair hearing and that it should not have given a costs warning which in the circumstances was both improper and unfair and put undue pressure on the Claimant. The Employment Tribunal should have realised that Mr Sloan was incompetent. He was nervous, could not explain the case, and was unable to explain what documents were necessary. He had failed to seek an order for disclosure and had failed to resist the Respondent's application to go first. Mr Sloan had failed to put questions in cross-examination to the Respondent's witnesses in relation to his discrimination claim. The Employment Tribunal, it is said, should have resolved the outstanding issues relating to disclosure because Mr Sloan had not before taking the "precipitant" step of issuing a costs warning. See Notice of Appeal paragraph 22(d). Ms Burnham was in effect saying that the Employment Tribunal should have said nothing at all about the risk of the Claimant being subject to an application by the Respondent that he pay the costs. Ms Burnham put the matter in this way at paragraph 17(b) of her skeleton argument:

"Mr Hutchinson's account of the Appellant's representative's approach more than adequately demonstrates that representative's inability to represent the Appellant competently. Mr Hutchinson accepts that the Tribunal was concerned about the way that the case was being conducted and twice invited the representative to explain why no questions had been put regarding the claim in race discrimination. (See paras. 13-15 of affidavit) It is submitted that the Tribunal ought to have noted and acted upon the fact that the Appellant was significantly hampered in his ability to pursue his race discrimination complaint in the absence of information about the treatment of potential comparators which had in fact been the subject of the request for specific disclosure. (See paragraph 9 above). In addition, the Appellant's representative had failed to put such questions as could have been put in relation to comparators notwithstanding the non-disclosure. In the circumstances it was the tribunal's duty, in the interests of fairness, to resolve the disclosure issue and/or to put questions relevant to the Appellant's comparators to the Respondent witnesses if it believed that the Appellant's representative was culpably failing to do so."

64. The Employment Tribunal, it is said, before issuing a costs warning should have tested and considered the evidence relating to abuse and deduction from wages. We note in passing that the Respondent's witnesses had already given evidence and the Claimant's witness statement, which constituted his evidence in chief, as well as his Originating Application only made a vague and generalised allegation.
65. Ms Burnham submitted that as Mr Sloan was so obviously incompetent the Employment Tribunal should have treated the Claimant as having been a litigant in person and unrepresented.
66. We asked Ms Burnham what the Employment Tribunal should properly have done at the time when the costs warning was given, if it were not to give that warning. She submitted that Mr Sloan should have been invited to discuss with the Claimant how he proposed to advance his complaint about discrimination, and that it should have realised that Mr Sloan was incompetent and failed to meet acceptable standards. Ms Burnham was driven to concede that having regard to the evidence as it was (including the Claimant's witness statement) and having regard to the fact that there had been no cross-examination of the Respondent's witnesses on the issue of discrimination, the Claimant's case in relation to that issue was bound to fail, and he would have been at risk as to an application for costs.
67. It was then submitted on behalf of the Claimant that the note drafted by Ms Ezeonyim was equivocal and should not have been accepted by the tribunal before:

(a)    Considering making a further order for disclosure or adjourning. The Employment Tribunal should at that stage have ordered disclosure to include the turnover of each individual shop. We note that turnover of individual shops is not referred to in the note read out to the Employment Tribunal which we have at page 147.

(b)   It should have carried out a full investigation into disclosure. The Employment Tribunal would then have discovered that the Claimant wanted an application for disclosure to be made.

(c)   The Employment Tribunal should then have invited the Claimant to make a further application for disclosure. In submissions Ms Burnham went further and submitted that the Employment Tribunal should simply have ordered disclosure as soon as the note at page 147 was read out.

(d)   The Employment Tribunal should have asked the Claimant personally for a statement of circumstances relating to his decision to withdraw the claims. Ms Burnham told us that she based this particular submission upon the decision of the Court of Appeal in Ako v Rothschild Asset Management [2002] IRLR 348 which we will come to in due course.

68. We put it to Ms Burnham that, if at the end of the date the Employment Tribunal had not acted as it had, and had an application for costs have been made against the Claimant, would he not have complained he had not been warned? Ms Burnham's response was that this was speculative. Dr Mohanty JP put it to her that it was surely better to warn the Claimant in those circumstances than not, but Ms Burnham submitted that the warning was inappropriate.
69. Ms Burnham went on to criticise the Chairman for saying that neither in his Originating Application nor in his witness statement had the Claimant disclosed details of his discrimination complaint. If the Chairman had meant that no complaint of discrimination was raised, that of course would be wrong. However, in our opinion, it is clear that the Chairman was referring to the fact that a bare allegation had been made without any details. No comparators were identified in relation to these claims and no documents had been sought in relation to specific comparators.
70. Ms Burnham suggested that the issue of the costs warning flawed the entire decision and accordingly there should be a new hearing of all complaints including those relating to unfair dismissal that had been considered and rejected by the Employment Tribunal.

The Respondent's Submissions

71. In short, Mr Hale submitted that the Employment Tribunal got it right.
72. So far as disclosure was concerned, the Respondent had disclosed what documents it had and offered to provide documents relating to named comparators so there was no basis for any further order. It had disclosed a substantial bundle of documents in excess of 400 pages together with trading accounts of its shops and explanations as to why other documents were not available. He pointed out that the issue of disclosure was raised at the outset of the proceedings and the Claimant chose not to pursue it. Thereafter the Employment Tribunal was concerned with the merits of the substance of the case. He submitted it was difficult to see how it could be said the Employment Tribunal could consider the merits and details of a potential application for disclosure that was never made. He was unable to accept that the Employment Tribunal in the circumstances should have investigated the question of disclosure. If the issue had been raised, the Respondent would have submitted that it was raised very late and any further order would lead to an adjournment. The Respondent, it was submitted, would have said it had made reasonable and proper disclosure and had offered to provide documentation relating to a comparator in relation to the issues of alleged disparity in disciplinary matters. The offer was never taken up. The Claimant had also chosen not to seek disclosure relating to the pay of named comparators.
73. Mr Hale then focussed at the point in time when the warning was given. He asked forensically whether at that point in time there was a reasonable risk that an application for costs would be made against the Claimant. He submitted that the answer must be "yes". He drew attention to the concession made by Ms Burnham that looking at the evidence as it was and having regard to the fact that Mr Sloan had not cross-examined in relation to allegations of discrimination in particular, had the case gone on the Claimant would have undoubtedly failed in his discrimination claim and would obviously have been at risk as to costs. This could not have come at a great surprise to the Claimant who knew that the Respondent had already threatened in the letter the Employment Tribunal never saw, to seek an order for costs against him. He also said it was relevant to consider what would have been the position if a warning had not been given. The Claimant would have ploughed on for another day or two days and lost and found himself liable for costs.
74. The appeal was not about the incompetence of Counsel. If the Claimant had a complaint about Mr Sloan he should take it up with Mr Sloan. He pointed to great practical difficulties that would arise if an Employment Tribunal had to assess in every case how an advocate was performing in order to decide whether to intervene actively in the case.

The Law

75. In this case the relevant rules as to cost were those to be found in Rule 14 of the Employment Tribunal Rules of Procedure 2001 (the '2002 rules'). An Employment Tribunal was empowered to make a costs order where

"A party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusely, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived."

76. It is to be noted that the threshold for making a costs order was lowered by the 2001 Rules and has since been further lowered by the 2004 Rules. However, employment tribunals still represent a relatively cost free environment.
77. Helpful guidance on the approach of employment tribunals to unrepresented parties is to be found in the decision of the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. In her Originating Application Mrs Mensah had made a number of complaints of discriminatory conduct on racial grounds. She appeared in person. She did not advance evidence or submissions in relation to all those grounds which were not dealt with by the Employment Tribunal. She appealed to the Employment Appeal Tribunal on the grounds that the Employment Tribunal had failed to consider all of her allegations and the Employment Appeal Tribunal allowed the appeal. The Court of Appeal allowed the Respondent's appeal from the decision of the EAT and restored the decision of the Employment Tribunal.
78. It was argued on behalf of the Claimant in the Court of Appeal that the industrial tribunal (as it then was) was bound to act of its own motion, even if the Claimant did not put forward evidence to make good an allegation or argued in support of it. Peter Gibson LJ. Had this to say at paragraph 15:

"There is no like duty in civil actions in the courts, even if the plaintiff is a litigant in person. It is every judge's frequent experience that more points are taken in a plaintiff's pleadings than are pursued at the trial and I cannot believe that a plaintiff who fails at the trial to take and prove a claim made in his pleadings could at the appellate stage successfully contend that the trial judge erred in law if he did not draw that claim to the plaintiff's attention to see if it had been abandoned."

79. He continued at paragraph 17:

"Many litigants in the industrial tribunal appear in person or with lay representatives and despite the wide discretion given to the tribunal by rule 9 (1) it is conceivable that the courts might have recognised a duty such as that implicitly found by the Employment Appeal Tribunal. However a long and consistent line of cases gives no encouragement whatever to the existence of such a duty and consistently with the procedural rules, which apply in the same way to unfair dismissal or redundancy cases and to discrimination cases, there has been no difference of approach between the two types of cases."

80. The Court of Appeal approved the dictum of Arnold J. in Kumchyk v Derby City Council [1978] ICR 1116:

"It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances."

81. The Court of Appeal also approved the judgment of Bristow J. in Derby City Council v Marshall [1979] IRLR 261:

"We think that it is a wrong view of the obligations of an industrial tribunal. They are a tribunal resolving a dispute inter partes. Of course, if one party is totally inarticulate the Tribunal will do what it can to see if that party has got an arguable case, and if it has, to do justice to that case. But the obligation of putting forward the case is upon the party."

82. The Court of Appeal also considered the judgment of the EAT given by Knox J. in Dimtsu v Westminster City Council [1991] IRLR 450. In that case there was an issue as to whether the Claimant's application had been lodged out of time, but no application was made by the Claimant to extend the time. It was argued that the Chairman of the industrial tribunal should in the circumstances have raised the question whether the Claimant wished to apply for an extension of time. Knox J. had this to say:

"First, they consider that this case falls within the general principles recognized in Kumchyk v Derby County Council, supra, that a point not taken in the industrial tribunal cannot be taken in the Employment Appeal Tribunal even though the failure to take it below was due to lack of skill or experience of the advocate and that the omission could have been made good had the industrial tribunal chosen to suggest it for consideration."

Knox J. continued:

"We regard it as important that the principles set out in Kumchyk v Derby County Council be upheld, and not eroded by qualifications based on inferences which a chairman of an industrial tribunal might make. In saying this the majority would not wish to cast any doubt on the propriety of the long-established practice whereby chairmen of industrial tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation. But this must be a matter for the judgment of the industrial tribunal in each individual case and should not be erected into an obligation which if not fully complied with leads to a conclusion that an error in law has been committed."

83. Peter Gibson LJ concluded at paragraph 28:

"It is with diffidence that I reach a conclusion different from that reached by the Employment Appeal Tribunal, with the present President presiding, on a point relating to the procedure of industrial tribunals, and my misgivings are greatly increased by the fact that a former President, Mummery LJ, would not have given leave to appeal. But for the reasons which I have given, I have reached the clear conclusion that the Employment Appeal Tribunal was not entitled to find an error of law by the industrial tribunal in this case. I would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for industrial tribunals to clarify with the applicant (particularly if appearing in person or without professional representation) the precise matters raised in the IT1 which are to be pursued and to seek conformation that any others so raised are no longer pursued . But it must be for the judgment of the particular industrial tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove. In X v Z Ltd [1998] ICR 43 at p.54, Waite LJ referred to the rule that the tribunals themselves are the best judges of case management decisions. The Employment Appeal Tribunal has done precisely what Knox J rightly said should not be done, namely to erect what is a matter for the judgment of the industrial tribunal into a duty leading to a conclusion that an error of law has been committed when that duty has not been complied with. There was no such duty and accordingly there was no error of law."

84. Sir Christopher Slade had this to say at paragraph 36:

"I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not as subject to rigid rules of law. In the present case, the Trust was in my judgment reasonably entitled to expect that the tribunal would in its decision be dealing with only those issues which had been covered by the directions of 29 June 1994 and Mrs Mensah's oral submissions and evidence."

85. Ms Burnham submitted that we should not follow the dicta in Kumchyk v Derby City Council and Dimtsu v Westminster City Council which we have just referred to. She referred to these as being "old decisions" and there was now a duty to act fairly by reason of the overriding objective. We do not consider that we are justified in declining to follow these judgments so recently approved by the Court of Appeal. There is nothing, in our opinion, in the overriding objective that requires employment tribunals to take points on behalf of unrepresented claimants, let alone those who are represented. Even before the advent of the overriding objective, employment tribunals were required to act fairly.
86. We now turn to consider the decision in Ako v Rothschild Asset Management [2002] IRLR 348 upon which Ms Burnham relied. The Claimant presented a complaint to an employment tribunal alleging unfair dismissal and discrimination on the grounds of race against the Respondent. Shortly thereafter she had an interview with an officer of the Commission for Racial Equality from which it emerged that one of the departments in which she had been employed may have been transferred to another company. Following advice she sought to withdraw her Originating Application and submit a new one naming the other company as an additional Respondent. She asked the employment tribunal to permit her to withdraw her claim against the Respondent and the Chairman signed a decision stating "The application is dismissed on withdrawal by the Applicant". Shortly thereafter she presented the fresh application repeating the same allegations against the Respondent and making allegations against the other company. The Respondent resisted the application on the ground she was barred by the principles of estoppel and res judicata. The employment tribunal found that her claim against the Respondent had already been disposed of judicially and that cause of action estoppel prevented the claim from being pursued. The EAT allowed the Claimant's appeal against that decision. The Court of Appeal dismissed the Respondent's appeal. The Court of Appeal made clear that cause of action estoppel as applied in the ordinary courts did not apply to employment tribunal cases where it was clear on examination of the surrounding circumstances that the withdrawal of the application was in substance a discontinuance of the proceedings. The position was complicated because proceedings in an employment tribunal could only be disposed of by order. Mummery LJ stated at paragraph 30:

"Unless and until the Regulations of the employment tribunals are amended to deal with this point, it would be advisable for employment tribunals, on being notified of the withdrawal of an originating application, to ask the applicant for a statement of the circumstances of the decision to withdraw before deciding whether to make an order dismissing the proceedings."

87. We cannot read this decision as lending any support for the submission that when a party wishes to withdraw some or all of his or her claims the employment tribunal is required to undertake an exhaustive investigation as to the merits of the course adopted, still less, when the Claimant is represented does it require the employment tribunal to make enquiries personally of the Claimant as opposed to his legal representative.
88. The third case to which we need refer is the more recent decision of the Court of Appeal in Gee v Shell UK Limited [2003] IRLR 82. In that case the Court of Appeal were satisfied that there had been a miscarriage of justice because the employment tribunal had issued a costs warning (in much stronger terms than that in the present case) in circumstances where it was unjustified and where it had placed the unrepresented Claimant under improper pressure. Scott Baker LJ had this to say at paragraph 21:

"In my judgment, a tribunal must be particularly careful not to place undue pressure on a litigant in person. A party who is legally represented has the opportunity for his representative to put any remarks by the tribunal in context. For example, the legal representative can explain the circumstances in which a tribunal is entitled to and may make a costs order. A tribunal should only make costs warnings such as were made in the present case where there is a real risk that an order for costs will be made against an unsuccessful Claimant at the end of the hearing."

89. The Court of Appeal considered it was unfair to have issued a costs warning in that case because it was unjustified. The Claimant had a perfectly respectable argument. Scott Baker LJ continued at paragraph 26:

"Against this background the 'costs warning' was unfair. It left Mrs Gee in no doubt (and in my judgment would have left any reasonable litigant in person standing in her shoes in no doubt) that if she continued and lost she was at a real risk of a substantial order for costs being made against her and that it might well be enforced against her house. Both she and her husband were unemployed. She simply could not afford to take the risk. There is no doubt that it was this that caused her to withdraw her claim and in my judgment the Employment Appeal Tribunal was correct in concluding that the pressure was unfair and accordingly that the employment tribunal acted unlawfully."

90. Sedley LJ put the matter in this way at paragraph 34:

"While plainly there cannot be one rule or legal principle for litigants in person and another for those who are represented (see Divine-Bortey v London Borough of Brent [1998] ICR 886; [1998] IRLR 525, 529 per Simon Brown LJ), it does not follow that an employment tribunal is entitled to treat every party as if it had the strength of advice and representation which, for example, Shell (UK) Ltd enjoyed in this case. Inexperienced lawyers may not be a match for experienced ones; lay representatives may not be a match for lawyers; some lawyers may not be a match for a clever litigant in person or an experienced lay representative. The tribunal's job, precisely because it cannot guarantee equality of arms, is to ensure equality of access to its processes for sometimes disparately powerful parties. This involves making a careful appraisal, case by case, of the parties and their respective capabilities. It must also, however, involve ultimate equality of treatment, so that whoever presses on with a doomed case after due warning faces the same risk on costs."

91. We should also refer to the judgment of Simon Brown LJ at paragraph 40:

"The all-important dividing line identified by Maurice Kay J in the EAT below was between on the one hand 'robust, effective and fair case management' and on the other 'inappropriate pressure and unfairness'. As, however, the judge recognised, that line cannot be a sharp one: costs warnings cannot properly be characterised as having applied 'inappropriate pressure' or as being 'unfair' unless no reasonable tribunal would have given them. Given the obvious need for 'robust and effective case management' which might sometimes positively require a costs warning, there must be a wide margin of appreciation (a substantial area of discretionary judgment) open to the tribunal as to when and in what terms the warning should be given. It seems to me that only if it is perfectly plain to the reviewing court (be it the EAT or the Court of Appeal) that the tribunal has overstepped the bounds of propriety will an appeal on this basis succeed. And similarly it seems to me that that hurdle will not be cleared unless the reviewing court is satisfied that the warning was given in circumstances in which there was in reality no possibility of any costs order being made, or at any rate no possibility sufficient to justify the actual warnings given. One cannot, of course, consider only the question whether any costs order might possibly be made. It is necessary also to consider the possible extent of any such order and the terms in which the warning is given. It would be no less wrong to warn a litigant of the risk of a whole costs order being made when in reality only a limited or specified order could possibly become justified. Equally, it would be wrong to give the impression that a costs order was probable if in reality it was at most conceivable."

Conclusions

92. Broadly speaking we prefer the submissions of the Respondent. Insofar as the facts are concerned we would approach the case on the basis that the Claimant has not persuaded us that where his evidence differs from the note and comments of the Employment Tribunal, it should be accepted.
93. One starts with the overriding objective in regulation 10 of the 2001 rules which, of course, is to "enable tribunals to deal with cases justly…(2) dealing with a case justly includes, so far as practical - (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate to the complexity of the issues, and (d) ensuring that it is dealt with expeditiously and fairly."
94. It is clear from the passages we have cited from Mensah that an employment tribunal may give some assistance to unrepresented parties and, perhaps to a lesser extent to parties who are represented. However, it must always be remembered that the employment tribunal is impartial and must not be seen or perceived to be giving assistance to one side rather than the other. We are concerned as to how an employment tribunal can on the one hand be impartial and fair to both parties and at the same time effectively make a case for one of the parties, especially one who is represented.
95. We do not see how an employment tribunal can properly, in the middle of a hearing start to consider making orders for disclosure which have not been sought by a party or by his or her representative, all the more so in cases where there is likely to be significant controversy as to whether the order could or should properly be made. Still less do we see how an employment tribunal can properly start a detailed investigation as to what disclosure might be appropriate if sought, in the light of a history of correspondence and orders the employment tribunal has not been invited to consider. Intervention is essentially a matter for the discretion and good sense of the Employment Tribunal. The interventions or failures to intervene, should only be reviewed when no reasonable tribunal would have intervened, or omitted to intervene, as the case may be.
96. We know of no authority outside the criminal law where a party is effectively entitled to a retrial on the basis of the incompetence of his or her advocate, and no more. A claimant will have a remedy against the incompetent advocate, but that is not a reason why the Respondent should have to face the expense of a new hearing. It may be that there is some authority on the point but we certainly were referred to none by Ms Burnham.
97. We ask ourselves forensically what this particular employment tribunal could or should have done faced with a case on discrimination that was clearly going nowhere. It could not take over the conduct of the Claimant's case and it seems to us having regard to the decision in Gee that it was reasonable for it to have said what it did, rather than simply allow the Claimant's potential liability for costs to escalate. This is the case in our opinion, even if the Chairman made the remarks attributed to her in paragraph 13 of the Claimant's affidavit - something we have not necessarily accepted. We see nothing inappropriate in what was said and we certainly do not consider it amounted to improper pressure. In Gee the Court of Appeal was satisfied that an order for costs would have been inappropriate in the circumstances of the case. In the present case the Claimant had failed to establish any grounds for his claim of discrimination and after he had read out his witness statement and given evidence in chief, his position was no better and probably even worse.
98. Further, we do not regard his statement as to the reasons for withdrawal as being in any way equivocal and the Employment Tribunal were informed by Mr Sloan in the presence of the Claimant and Ms Ezeonyim that Mr Adese did not feel he was compelled to withdraw but had chosen to do so on advice from his legal team.
99. Ako in our opinion is not authority for the proposition that an employment tribunal is bound to investigate fully with the Claimant in person his reasons for seeking to withdraw a claim. The fact that consent of the Employment Tribunal is required for a compromise or withdrawal of the claim does not require detailed examination of the merits of the compromise or anything more than the employment tribunal did in the present case in satisfying itself that the Claimant had agreed to withdraw the claims voluntarily rather than because he felt that he was compelled to do so. We do not see that it would have been appropriate for the Employment Tribunal, despite what it was told by Mr Sloan, to question the Claimant separately and in our opinion such a course would be highly undesirable unless there was some very good reason to suppose, for example, there was a conflict between the Claimant and his legal representative. The Employment Tribunal was bound to accept what it had been told by a legal representative in the Claimant's presence.
100. It is clear that a costs warning must not be seen or perceived to be oppressive. This case is very different on the facts to Gee. The language of the Employment Tribunal was mild and as Ms Burnham has accepted, as at the time of the warning and also at the stage of the withdrawal, the discrimination claim was bound to fail.
101. We should point out that we have particularly examined the circumstances relating to the discrimination claim because Ms Burnham has not sought to persuade us that the position in relation to any of the other claims the Claimant withdrew was different. She has concentrated her submissions on the "merits" of the discrimination claim.
102. We are unable to accept Ms Burnham's submissions based upon the judgment of Sedley LJ at paragraph 34 in Gee to the effect that the Employment Tribunal was bound to investigate in detail the merits of the Claimant's claims and of its own initiative to make orders for disclosure. Sedley LJ spoke of the Employment Tribunal's responsibility being to make "a careful appraisal, case by case of the parties and their respective capabilities". He did not speak of a detailed investigation of the merits of the claims, and even less did he suggest the Tribunal might take the initiative in making orders for disclosure that a party has not sought. Sedley LJ was at pains to point out that there has to be ultimate equality of treatment of all parties

"So that whoever presses on with a doomed case after due warning faces the same risk on cost."

103. A costs warning, in our opinion, can only be characterised as being unfair or having applied "inappropriate pressure" in the words of Simon Brown LJ unless "no reasonable Tribunal would have given them". He stressed, in the passage we have read, the need for there to be a wide margin of appreciation open to the Tribunal as to when and in what terms a warning should be given. In the particular circumstances of this case we consider the Employment Tribunal acted well within its substantial area of discretionary judgment.
104. The extravagance of Ms Burnham's submissions as to what the Employment Tribunal should have done is evidenced by her submission that the Employment Tribunal should have realised it was necessary to consider making an order for disclosure of documents relating to turnover; something that was not even referred to in the document on page 147. The Claimant and Ms Burnham may have confused also a failure to supply information he felt should have been provided pursuant to the Race Relations Act questionnaire and the obligation to make disclosure, which would not apply to documents that did not exist.
105. We consider that the Employment Tribunal may well have been criticised if it had failed to draw to the Claimant's attention the risks he was running in pursuing a case that could not succeed.
106. Looking at this matter objectively we do not consider there was any question of the Employment Tribunal applying improper pressure nor do we consider it can fairly be said that no reasonable Employment Tribunal could have given such a warning on the particular facts of this case, having regard in particular to the language in which the warning was couched, the fact that the Claimant was obviously at risk of an application for costs being made against him and the risk of an order being made was very real, indeed perhaps more so than the Employment Tribunal will have appreciated. The Claimant's claim to have been disadvantaged by a lack of documents which the Employment Tribunal would have ordered if requested is controversial at the very least.
107. We repeat that the order made in this case was well within the margin of appreciation of the Employment Tribunal and accordingly the appeal must stand dismissed.