United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R C ENGLISH (The Appellant in Person)
For the 1st Respondents	MR S CAMPBELL (Solicitor) Messrs Weightmans LLP Solicitors India Buildings Water Street Liverpool Merseyside L2 OGA

SUMMARY

PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity

An employment tribunal whose decision simply repeated verbatim the closing written submissions of one party and ignored those of the other party, and in doing so did not make a clear distinction between submissions and findings of fact, had failed to comply with the requirements of due process and of Rule 30(6) of the ET Rules of Procedure.


 


THE HONOURABLE MR JUSTICE BEAN

1. The Claimant appeals from a unanimous judgment of an Employment Tribunal sitting at Liverpool dismissing his claim for sex discrimination and victimisation. The issues were whether the Tribunal had discriminated against him by extending his probationary period as a weekend Associate Grade Post Person by a period of three months, and whether he was victimised because he had brought proceedings under the Sex Discrimination Act 1975. Mr English appeared in person, as he did before us on appeal. The Respondents were represented by Mr Campbell, a solicitor in the Liverpool firm of Weightmans. The Tribunal was composed of Mr S Christie, Chairman, and two lay members.
2. The hearing began on 6 February 2007. The one day set aside proved insufficient and the hearing continued on 8 May 2007. By the end of the second day the Tribunal had heard evidence on both sides. The parties were directed to make closing submissions in writing within 14 days and each side did so. Mr Campbell's submissions for the Respondents, dated 21 May 2007, were 13 pages long. The Claimant's document was significantly longer. We have only seen extracts on this appeal but Mr English's closing submissions raised points of significance, both on the law and on the facts, which warranted proper consideration by the Tribunal. The Respondents, indeed, made brief supplementary written submissions answering some of Mr English's points by letter to the Tribunal dated 19 June. Mr English justifiably complained that he was not given an opportunity to reply to this letter; but since its contents were not referred to in the Tribunal's decision that became a matter of little significance.
3. The Tribunal convened on 26 June 2007. (Although the decision document records that there was "no attendance" by the Claimant or for the Respondent on that date, it appears to us that this was for the very good reason that the Tribunal were deliberating and the attendance of the parties was not required.) By its judgment sent to the parties on 2 August 2007 it dismissed the claims.
4. The Tribunal's judgment is as close to being an exact copy of the Respondents' submissions as we have ever seen. Not a word of it is original except for the statement at the beginning and end that the unanimous judgment of the Tribunal was to dismiss the claim. The reasons in between, which extend over nearly 10 pages, simply reproduce word for word the Respondents' closing submissions of 21 May 2007 paragraph by paragraph, occasionally omitting matters of detail such as citations from documents. There are some grammatical changes, most frequently the change from "the Respondents submit" to "the Respondents submitted", and from time to time a word is left out, but no other amendments.
5. The Tribunal could just as well have reduced their judgment to a single sentence. That would have read:

"For the reasons given in the respondents' closing submissions dated 21^st May 2007, which we accept and adopt in their entirety, the claim is dismissed."

That would at least have made it clear to the reader what they were doing. Instead they used Mr Campbell's material verbatim without acknowledging it. Mr English described that to us as plagiarism. We agree.

6. It is very common for courts or tribunals to reproduce in their judgments passages from a party's written argument. The document may conveniently set out (as Mr Campbell's submissions in this case do) the law applicable to the case. Or there may be an uncontentious recital of the facts, or the history of the litigation itself. There is nothing objectionable in a court doing this. But it is a matter of degree: and particularly where the material is contentious it is important to distinguish findings from submissions.
7. An inevitable consequence of the Tribunal simply reproducing Mr Campbell's submissions is that the judgment makes no distinction between submissions and findings of fact. The longest section, paragraph 5, begins "the representations about the material facts before the Tribunal are as follows" [the first three words of this phrase being the Tribunal's own], which suggests that what will follow will be the parties' respective submissions. The Tribunal, however, proceeds to set out in 35 numbered subparagraphs (5.1 to 5.35) a mixture of oral evidence, documents and submissions by the respondents. It is not always clear to the reader which is which.
8. Before us Mr Campbell relied on paragraph 11 of the Tribunal's decision:

"The Tribunal was satisfied that there was no evidence to support the claimant's sex discrimination and victimisation claims. All he has demonstrated in this case is a difference between him and his two female comparators. The evidence before the tribunal from both documents and the evidence of the respondent's witnesses is that the decision to extend the claimant's probationary period was totally unrelated to his sex."

9. Even this paragraph is lifted from Mr Campbell's own submissions, though with two words, which we have italicised, omitted:

"10.2 There is no evidence to support the Claimant's sex discrimination and victimisation claims.

10.3 All that the Claimant has demonstrated in this case is a difference in sex between him and his two female comparators. There is overwhelming evidence from both the contemporaneous documents and the evidence of the Respondent's witnesses that the decision to extend the Claimant's probationary period was totally unrelated to his sex."

10. It was of course perfectly acceptable for the respondents' submissions to be drafted in this way. But in using them without alteration the Tribunal failed to comply with rule 30(6) of the Employment Tribunals Rules of Procedure. This requires inter alia that written reasons for a judgment shall include findings of fact relevant to the issues which have been determined, and shall inform the reader how the relevant findings of fact and the relevant law have been applied in order to determine the issues.
11. By contrast with the way Mr Campbell's submissions were treated, Mr English's detailed written submissions were not mentioned in the decision. By reading the Tribunal's judgment one would not even know that Mr English had made any written submissions; still less that he had raised points of substance on which the Tribunal should have adjudicated.
12. The Tribunal owed it to Mr English to deal specifically with at least the principal points made in his closing written submissions. Explaining to the loser why he has lost, in accordance with the principles of Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold and Strick Ltd [2003] IRLR 710, involves telling him, unless it is entirely obvious, why at least his main points in argument have been rejected. (Paragraph 11 of the Tribunal's decision, which states their conclusion but not the reasoning process which led to that conclusion, does not satisfy this requirement.) It is not necessary to deal with every point irrespective of its weight, particularly when the matters raised are very numerous. The EAT sees all too often cases with voluminous grounds of appeal making factual challenges which are outside its jurisdiction. Employment tribunals may similarly be faced with lengthy submissions on manifestly irrelevant issues. But from what we have seen of Mr English's closing submissions they were not in this category. And the more closely the Tribunal adhered to the submissions of the respondents, the more necessary it was for them to deal specifically with the competing submissions of Mr English. We regret to say that by simply copying out one document and wholly ignoring the other they brought the case substantially below what Frankfurter J in Fikes v Alabama (1957) 352 US 191 called the "Plimsoll line of due process". Mr English has not had a fair trial and determination of his claims. In those circumstances it is inappropriate for us to go on to consider arguments on the merits.
13. It follows that in our judgment the Tribunal's decision cannot stand. The appeal must be allowed and the case remitted to a differently constituted Employment Tribunal.
14. We announced our decision to allow the appeal at the conclusion at the hearing before us. Mr English applied for an order that the Respondents pay his costs as a litigant in person before the EAT. We did not consider that there has been any unreasonable conduct of the appeal by the Respondents or their solicitors. The requirements of EAT Rule 34A are not satisfied. We therefore refused the application for costs.