United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

MR R CHAUDHARY (Lay Representative)

For the Respondent

MR M SHERIDAN (of Counsel) Instructed by: Messrs Archon Martin House 5 Martin Lane London EC4R 0DP

SUMMARY

Practice and Procedure

Employment Tribunal not wrong to dismiss application on basis of settlement which did not comply with terms of RRA s.72(4A) and SDA and 77(4A).


 


HIS HONOUR JUDGE JR REID QC

Preliminary Point

1. What we have been asked to deal with is the question as to whether Lord Davies should disqualify himself as a member of the panel. The basis upon which that application is made is fourfold.
2. Firstly, that he has connections through the Labour Party and through his membership of the House of Lords with Lord Triesman, as he now is who was formerly an official of the AUT and also General Secretary of the Labour Party, as I understand it. Secondly, that on a previous occasion he was perceived by amongst others Mrs Deman, to be hostile in the course of a hearing, not a hearing of this appeal, to Mr Deman. Thirdly, that he has connections with the Labour Party; and fourthly that he has connections through a fellow member of the House of Lords, with Lady Blackstone who over the last year or so since, if my memory serves, since leaving front bench politics, has become the Vice-Chancellor of Greenwich University.
3. The question which we have to ask ourselves is whether any reasonable person viewing the matter objectively would think that there is any possibility, a real possibility as opposed to a purely fanciful one, of bias. Mr Chaudhary, to whom we are grateful for putting his points in a sensible and reasoned manner, suggests that there would be such a perception. We regret to say that we disagree with him in this particular instance. The Claimant in this particular case is not Mr Deman, it is Mrs Deman. It does not seem to us the fact that in another case there has been what has been perceived to be something of a run-in between the Claimant's husband and a member of the Tribunal could lead to a reasonable person having a perception of possible bias. So far as the connection with Lord Triesman is concerned, he is not a party in any way to this particular application. I think the nearest that can be said he gets to it, is that the Second Respondent is a member of the union of which Lord Triesman was at one time an officer.
4. So far as Lady Blackstone is concerned, the fact that both Lord Davies and Lady Blackstone have reached the eminence of the House of Lords and therefore, assuming they both turn up and do their job, will have had some occasional meetings with each other, does not seem to us, to be of any assistance to Mr Chaudhary. Here we have a case about a comparatively small sum of money - at the present time - relating to events a number of years before Lady Blackstone had any connection with the university.
5. Looking at the matter overall, it does not seem to us that the fact that Lord Davies is a well known supporter of the Labour party can possible be a relevant consideration.
6. Taking each of those matters separately and taking all four together we do not think that any reasonable independent observer could think that there was any real, as opposed to fanciful, possibility of bias. It therefore seems to us that the appropriate course is to continue with the existing Panel.
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7. This is an Appeal from a decision of an Employment Tribunal held at London (South) on 3 March 2003. The decision was that the terms of settlement having been agreed between the parties, the Originating Application be dismissed.
8. Against that decision the Applicant, Mrs Mayo-Deman, appeals. The background of the case can be taken extremely shortly. She brought proceedings against the Respondents asserting discrimination on the basis, in very short terms, that she did not get the job which she was interested in. The hearing was coming up after a certain amount of to-ing and fro-ing and very shortly before the hearing, due on Monday 3 March, there were communications between the respective parties, that is to say solicitors on behalf of the Respondents on one hand, and Mrs Mayo-Deman's husband on the other hand. That resulted in an exchange of e-mails which taken at face value might have been thought to have concluded an agreement by which the Respondents would pay Mrs Mayo-Deman £3,000 in full and final settlement of the proceedings and all claims that she has or might have against the Respondents within fourteen days.
9. The terms of agreement were, it is clear, signed both by Mrs Mayo-Deman on the one hand and by solicitors on behalf of the University on the other hand. It is said by Mrs Mayo-Deman that she did not receive a signed copy of the document from the University's solicitors. Be that as it may, the hearing which had been fixed for 3^rd as the full hearing was then reduced in length as a result of communications between the respective parties and the Tribunal, not least because Mr Deman wrote indicating that the matter had been compromised. He wrote that to the solicitor on behalf of the Respondents. I read the letter:

"Dear Mr Carlo

I acknowledge a receipt of your letter 28^th February 2003 on the above matter. Although I thought our offer of settlement was reasonable I have taken further instruction from my wife in the light of your recent letter. She has agreed to settle the matter on the terms you initially offered in your letter of 26^th February 2003. I would be grateful if you could notify the Tribunal and ACAS that we have reached an agreement so that we do not have to go on Monday to the hearing.

I am looking forward to hearing from you.

Yours sincerely…"

10. There were two manuscript "PS's" to that. The first read:

"My wife instructs me that this offer is valid only today by 4.00pm. If she has to go to the Tribunal on Monday she would not agree to the terms of the agreement. Please let me know ASAP."

And the second:

"PS – enclosed form of sign copy of agreement. I expect your Counsel to be truthful about the terms of settlement to the Tribunal. Please provide me with a copy of your letter to Tribunal."

11. On the Monday Mrs Mayo-Deman did not attend the Tribunal. The Tribunal having been informed of the settlement had duly reduced the hearing time to one hour. Counsel attended on behalf of the Respondent, a Mr Graham attended being a lay advocate, saying, that he was representing Mrs Mayo-Deman. He was clearly not aware of the terms of the communications of the previous Friday but in any event according to the Tribunal, I quote from paragraph 16:

"16 Mr Graham stated, having read the correspondence he could see that 'surrender' had been signed. The Chairman pointed out there were circumstances where signed terms of agreement would not necessarily be valid but the Tribunal had heard no evidence. Mr Graham then stated that he had no argument with the Tribunal's verdict and that he fully accepted on the evidence the matter had been withdrawn. Mr Graham then went on to say it was not the picture that he had got from Mr Deman in answer to the question from the Chairman he said that he had not spoken to Mrs Deman, and he agreed that Mrs Deman had signed the terms of agreement. Finally Mr Graham said both sides wanted an adjournment to settle the matter by ACAS but the Court would not grant an adjournment, so a quick solution had been forced."

12. It is said that Mr Graham has a very different recollection of what is set out in the extended reasons but we have not heard oral evidence from anybody in relation to that and we do not take the view that it is necessary to make any decision about the point. It is perhaps just worth recording the artillery on the two sides so to speak.
13. On the one hand, we have Mr Graham's account in an affidavit some nine months after the event; against that we have the Extended Reasons which themselves for various reasons were not sent to the parties until seven months after the event. We have the Chairman's contemporaneous notes, and one of the member's notes as related to the EAT (because originally there was an application in this appeal on the basis of bias). Beyond that we have solicitors' notes and Counsel's notes. Those are all in agreement and conflict with Mr Graham's view, but as I say we do not have to make any decision as to which of the two versions is correct.
14. When the matter came to the Employment Appeal Tribunal originally the Notice of Appeal made wide ranging allegations of a variety of sorts including allegations of bias. However, at a preliminary hearing before HHJ Wakefield and two members, the Appeal was allowed to go to a full hearing on the basis only of a Substituted Notice of Appeal and I quote from the Order made by the learned Judge on that occasion:

"3 There be leave to file and serve a substituted the Notice of Appeal on 1) whether the Employment Tribunal was wrong to dismiss the application in that the terms of settlement did not comply with s77(4a) of the Sex Discrimination Act and s72(4A0 of the Race Relations Act and 2) whether the Employment Tribunal was wrong no to fully acknowledge Mr Graham as the proper representative of the Appellant, such Notice of Appeal to be served within 21 days of the seal date of this Order."

15. Those two Grounds were faithfully reproduced in the amended Grounds of Appeal which then went on and I quote from paragraph 4:

"4

(b) Tribunal erred in law Failure in not fully acknowledging Mr Graham as proper representative of the Appellant at the hearing in breach Article 6 and/or due to general & specific bias."

And then at the end of the note of the Amended Notice of Appeal

"For the above reasons the Tribunal erred in law and/or misdirected itself and/or reached adverse or bias result in dismissing application and not recognising Mr Graham as representative."

16. Mr Chowdhary who has appeared as a Lay Representative on behalf of Mrs Deman today and who I may respectfully say so, has said everything that could properly be said in a moderate and effective manner disclaimed any reliance on bias. He ran essentially a number of points. The first was that the Amended Notice of Appeal did not accept that there had been a concluded agreement, and he said that as was clear from the letter that I have read, that the consent of the Respondent through their solicitors had to have been received by 4o'clock, that no signed copy had been received by that time, and therefore there was never any agreement, and that when the first Grounds of the Amended Notice of Appeal referred to the terms of the settlement it was not accepting that there had ever been any settlement.
17. He then went on to say that if there had been a settlement the Employment Tribunal was obliged to ensure that it complied with the provisions of s.77 of the Sex Discrimination Act and s.72 of the Race Relations Act and that it had erred in law in dismissing the application on the basis of the settlement having already been reached when the settlement did not itself comply with the statutory provisions and therefore was not binding on the parties. He pointed out that the overriding objective of the rules these days is to ensure that parties are put on a similar footing and the parties have a fair hearing. He referred in passing (mercifully briefly, if I may say so), to Article 6. He pointed out that the Judge had vetted the application at the Preliminary Hearing and he also made reference to the Lawal and Breeze Benton cases among others.
18. So far as those arguments are concerned, it is common ground that as to this first one that the terms of the settlement did not comply with s.77 of the Sex Discrimination Act and s.72 of the Race Relations Act. That however, does not in our view prevent a tribunal dismissing a claim on the basis that the parties have reached agreement even though that settlement does not comply with the terms of the Act or either of the Acts involved. The Tribunal had seen the terms and were, it is clear, content to allow the Application to be dismissed on that basis. It is to be noted that Mrs Mayo-Deman had not thought it necessary or appropriate herself to attend, nor did her husband, who had up to that point been making the running as her representative. In those circumstances it might well have been that the Tribunal would in any event have dismissed the application. But the Tribunal clearly looked carefully at the Application, looked carefully at the proposed settlement, bore in mind that there were circumstances where signed terms of agreement would not necessarily be valid and thought it was appropriate in those circumstances to allow the claim to be dismissed, as they say terms of settlement having been agreed between the parties.
19. In our Judgment there is nothing in law which requires an Employment Tribunal to ensure that the terms agreed are binding within either the Sex Discrimination Act or the Race Relations Act before it permits a claim to be dismissed when the parties have reached what is otherwise a contractual agreement. It seems to us therefore that on the basis that there was a settlement, albeit not complying with the two Acts, the Tribunal were entitled to reach the conclusion that they did and there was no error in law in their doing so.
20. As to the assertion that it is open on the grounds of appeal to allege that there never was in fact any terms of settlement, that seems to us to be a bad point. It is clear that the grounds on which the Appellant was allowed to go for full hearing were very limited. It seems to us equally clear that the words used in the Order of HHJ Wakefield and in the Amended Grounds of Appeal are crystal clear. They start from the premise that there was indeed a settlement. The terms of settlement had in fact been agreed. It is not in our Judgment open on this Appeal to the Appellant to assert that there had been no concluded agreement, binding or not, on the Friday and that the offer had been withdrawn at 4o'clock.
21. It was suggested that this was in some way unfair to the Appellant. In our judgment that is not the position. It was plain from the Skeleton Argument which was put in by the Respondents as long ago as 1 December of last year that they did not regard this as a point which was being raised. Since then this Appeal has been adjourned, I think on two occasions. No indication was given that this point was to be raised. It is clear also that there was no intention by the Employment Appeal Tribunal at the Preliminary Hearing to allow this point to be raised. Whilst the Employment Appeals Tribunal will always be careful to ensure that an unrepresented Applicant or Appellant is not disadvantaged, that does not mean that an Appellant is going to be allowed either to fly in the face of its clear grounds of appeal or to disadvantage its opponents by seeking to take points which are not open to it and in respect of which no permission to proceed has been given. It follows therefore that so far as that substantive ground is concerned it is not open, and in so far as the Appeal is intended to be based on that ground it fails.
22. There remains the point that it was said that the Tribunal erred in law in not fully acknowledging Mr Graham as the proper representative of the Appellant at the hearing. So far as that is concerned, it is true that the decision refers to the non-appearance on behalf of the Claimant but on the other hand it is perfectly clear from the body of the reasons that Mr Graham presented himself as an advocate representing the Applicant, that he was listened to at considerable length and that there was a considerable exchange between him and the Chairman of the Tribunal. It does not seem to us that it can sensibly be said that the Tribunal did not fully acknowledge Mr Graham as the proper representative of the Appellant or indeed or even if there were some substance in the suggestion that any injustice was thereby done. He was the only person who turned up before the Tribunal to represent the interests of Mrs Deman. He was listened to carefully, and his views were taken into account.
23. In our Judgment there is nothing whatever in this point. It follows that since there is nothing in any of the points taken on the Appeal, the Appeal should be dismissed.