United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS B CRIDDLE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme
For the Respondent	MR I HARE (of Counsel) Instructed by: General Medical Council Legal Services Regents Place 350 Euston Road London NW1 3JN


 


SUMMARY

PRACTICE AND PROCEDURE: Case management

The Claimant had a 10-year history of unsuccessful litigation against the Respondent. When the Claimant was struck off the medical register in 2006 as the respondent says for not paying his dues, and is the claimant contends as victimisation, the procedural judge did not err in restricting the evidentiary or background material to 2005 onwards, so confining the case to two not 15 days.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about employment procedure. I pre-read a substantial amount of the papers submitted in advance and as recently as today. It is fair to say that a very large amount of documents has been produced which are not focused upon the issues in the appeal as they now are. I will refer to Dr Bhadra as the Claimant and to the GMC as the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Carstairs sitting alone at a PHR on 30 August 2007 at London Central Employment Tribunal, registered with reasons on 1 October 2007. The Respondent was represented by Mr Ivan Hare of Counsel. Today the Claimant continues to represent himself but also has the advantage to be represented by Ms Betsan Criddle of Counsel who gives her services under the ELAA Scheme.
3. The Claimant brings a single complaint which has now been refined to harassment contrary to section 3A of the Race Relations Act 1976 in respect of an act of the GMC on 1 September 2006 to erase his name from the register of medical practitioners on the ground that he had not paid his subscriptions. The Respondent will contend that that was an administrative act taken by a different part of the GMC from that which had previously been engaged with the Claimant. It was an error, for the Claimant, at the time being over 65, was not obliged to pay subscriptions and so he would be restored, subject to a complicated piece of choreography as to whether he applies or it restores him. But subject to that, that is the scope of the Claimant's case as properly defined in case management.
4. The issue before me, as now refined, is whether the employment judge was wrong when he dismissed the proceedings as constituted against the President and the Registrar of the GMC, as second and third Respondents, and whether he was right to limit what is described as the evidentiary material in the run-up to the act of the Respondent in September 2006 as to which there are two contentions. The first is the Claimant's, which is that the evidentiary material goes back to January 1997, and the second is the holding by the judge not disputed by the Respondent, that it begins on 1 July 2005.
5. Directions were given in chambers by Elias J, President, sending the matter to a preliminary hearing. The Respondent was given the opportunity to attend .

The legislation

6. The relevant provisions of the legislation can be divided between the substantive and the procedural. As to substance, the Race Relations Act 1976 provides for harassment in the following way:

"3A. - (1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

    (2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect."

7. Secondary liability is found in sections 32 and 33. Section 32 deals with the liability of employers and principals. It is contended that this passage is irrelevant to the position of the office holders of President and Registrar of the GMC and no argument has been addressed to me, and I suspect to the employment judge, to gainsay that. Section 33 deals with aiding an unlawful act and provides as follows:

"33(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal.

(3) A person does not under this section knowingly aid another to do an unlawful act if—

(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful; and

(b) it is reasonable for him to rely on the statement.

(4) A person who knowingly or recklessly makes a statement such as is mentioned in subsection (3)(a) which in a material respect is false or misleading commits an offence, and shall be liable on summary conviction to a fine not exceeding …"

8. The adjectival law is found in the Employment Tribunal Regulations 2004. Rule 10 gives an employment judge the power to make a range of orders relating to case management of the proceedings. These are very wide and important powers and as to which an appeal to the EAT is the less likely to succeed. See practice direction at paragraph 11.6 which provides as follows:

"11.6 Parties should note the following:

11.6.2 The EAT recognises that Chairmen and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861), so appeals in respect of their conduct of Employment Tribunals, which is in exercise of those powers and duties, are the less likely to succeed.

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

9. A PHR may be conducted by an employment judge and they are described as interim hearings. One of the matters to be decided is whether an interim or preliminary matter can be disposed of. Rules 18(7)(a) and (b) put two instruments into the hands of an employment judge, both relevant to the appeal:

"18. Conduct of pre-hearing reviews

(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order:

(a) as to the entitlement of any party to bring or contest particular proceedings

(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;"

10. The Employment Judge directed himself by reference to what I hold to be the relevant authorities which he set out in paragraph 4.3 of his judgment dealing with strikeout, see, for example, Arrow Nominees v Blackledge [2001] BCC 591, and dealing with claims of discrimination which have a long history, see Hendricks v Commissioner of the Police for the Metropolis [2003] IRLR 96 (CA).

The facts

11. I can only tentatively sketch the facts since this is an interim appeal but the central issue is the reason for the erasure of the Claimant from the register on 1 September 2006. It is accepted that contributing to the evidence in relation to that will be evidentiary material as described by Mummery J in Qureshi v Victoria University of Manchester [2001] ICR 863, approved by the Court of Appeal in Anya v University of Oxford [2001] ICR 847.
12. The evidentiary material on the Claimant's account includes a series of litigation in which he has been engaged against the GMC which includes four applications to employment tribunals, two applications to the Privy Council, an application to the High Court which was withdrawn, and further judicial review proceedings which I am told are on foot. In all of those the Claimant was unsuccessful.
13. Thus there is a long history and the employment judge was concerned to limit the scope to what is relevant. In doing so he inherited from Employment Judge Weiniger both a judgment at a PHR on 27 April 2007, with reasons registered on 11 May 2007, and on the same day directions given at a CMD. He made an order that in respect of the evidentiary material particulars should be provided by the Claimant within a deadline. He also indicated that proceedings in respect of the second and third Respondents appeared to have no reasonable prospect of success and to be scandalous.
14. The Claimant complied with the order, for on 19 May 2007 he set out in a long letter the information required. In this it is plain that the history for the purposes of the Claimant's case would begin in January 1997. He also indicated that the reason for attacking the second and third Respondents was that they were figureheads and had conducted correspondence.
15. So the script before Employment Judge Carstairs was constrained by what Employment Judge Weineger had set out and had decided but Judge Carstairs made his own judgment and set out the executive parts of his judgment in the following way

"1 The Claimant's complaint of harassment should not be struck out;

2 The Claimant's application to amend his claim is dismissed;

3 The claims against the second and third respondents are dismissed; and

4 The matters on which the Claimant may rely are limited to his ethnic origin, the Claimant's letter of 1 July 2005, the Claimant's appeal to the High Court in August 2005, what the Claimant wrote in his application to withdraw his appeal to the High Court and the fact that the Claimant had taken a Tribunal case against the Respondent, all which the Claimant submitted were relevant to the matter about which he complains. "

16. It is important to recognise that in the course of that hearing Judge Carstairs was taken in detail to the Claimant's case as then put in the claim form and in the Further Particulars in the letter of 19 May. The Claimant was able to overcome the difficulty that apparently the letter had not been received at the Employment Tribunal, for the judge relied on it.
17. Of the issues in the judgment, only points 3 and 4 have been the subject of a live appeal before me but point 2, the amendment issue, is important for the judge said this

"5.3 The next matter to consider was the Claimant's application to amend his claim. The Claimant has done the best he can to set out the basis of various complaints in respect of other matters beyond that identified by Mr Winiger. However, what is quite clear to me is that the Claimant is seeking to relitigate matters in respect of which there has already been litigation or he is seeking to litigate matters which should have been raised earlier. Besides the matters raised before the Privy Council and the High Court, the Claimant had also brought proceedings to the Tribunal. The matters in respect of the earlier years about which the Claimant complains should have been raised during the course of the earlier Tribunal proceedings; I say this on the basis that [I] understand that they were not. To seek to raise them so many years later and after having already brought a claim to the Tribunal is an abuse of process. Accordingly I concluded that it was not appropriate to give leave for the claim to be amended in the way sought by the Claimant."

There would be an abuse of process unless this case were contained within reasonable bounds. So the unappealed judgment in respect of point 2 informs also the judgment in respect of the appeal advanced by Ms Criddle in respect of point 4 which I will describe as the evidence point.

18. The employment judge decided as follows in respect of the evidence point

"5.6 I dealt with one further matter which related to paragraph 16 of the 27 April order. The Claimant in effect sought to have the totality of all his complaints against he Respondent relitigated in respect of the current complaint. However, as the current complaint relates to one matter only, namely the Claimant's erasure from registration on 1 September 2006, it is important that the evidence be limited to matters that are relevant to that issue. This is certainly within the overriding objective set out in Regulation 3 to above.

5.7 The Claimant confirmed to me, when I sought to clarify the matter with him, that the believed the decision to erase him was taken because of what he had written in a letter of 1 July 2005, his appeal in August 2005 to the High Court, what he wrote when withdrawing the application for the High Court and the fact that the Respondent was aware that he had brought a Tribunal case against the Respondent under the 1976 Act. Having said that, I asked if he considered that the erasure had anything to do with his race to which he responded positively saying that he believed it was because of his Indian ethnicity. Whilst the first four matters appear to me to relate more to a complaint of victimisation rather than harassment, I concluded that this was a matter which should be decided by the Tribunal hearing the case.".

In respect of the additional Respondents point, he said this:

"5.4 The next matter to be considered related to the complaints against he Second and Third Respondents. The Claimant had been ordered to set out the basis for those complaints. However, it does not appear to be contested that the main basis for the Claimant seeking to include the President and the Registrar are that they are figureheads of the First Respondent. That is not sufficient. What is necessary is for the Claimant to show what matters they themselves are guilty of so that he can pursue a claim against them in accordance with section 33.

5.5 Turing to detail, Mr Hare has highlighted for me that the sum total of the complaints against teach of those two office holders is that letters had been written to them and that they knew about the Claimant's complaints. Those allegations are not sufficient to amount to harassment by the Second and Third Respondents. Accordingly I decided that they should be dismissed from the proceedings."

19. The case was listed in its reduced form. It was about to be heard. The Respondent turned up with two witnesses who are administrators within the registry of the GMC who had provided statements. The case was ineffective for reasons which are nobody's fault. It is now listed for two days on 29 and 30 April 2008.

The Claimant's case

20. The Claimant's case in respect of the additional Respondents, as advanced by the Claimant himself before me, is that these people have committed acts of discrimination and harassment, are the figureheads of the organisation and so should properly be sued. In support, he cites the history going back to 1997. In respect of the evidence point advanced by Ms Criddle it is contended that the judge made his decision based upon what the Claimant had told him and that this is at odds with the lengthy set of particulars illustrating the history back to 1997. It is sought to go behind the finding by the judge and to ask him for his note.

The Respondent's case

21. On behalf of the Respondent it is contended that it is a requirement in Employment Tribunal proceedings (see Hendricks) that there be a CMD in a discrimination claim and it is important to keep the case within proportionate bounds, particularly when there is a long history, and to focus upon the relevant event most recent in time. The EAT should not go behind the clear finding by the judge as to the evidence to be submitted and the scope of the hearing. The decision was correctly made. So was the decision in respect of the additional Respondents as, on analysis of the letter of 19 May 2007, no claim of harassment could be made out.

The legal principles

22. I accept the legal principles as advanced on behalf of the Respondent. Certainly it is good practice in a discrimination claim to set up a CMD and this was done. It is also important to focus upon the most recent events, even though evidentiary material can be introduced upon which no complete findings need be made under the statute for they simply provide evidence in support of a properly made in-time claim. It is part of the regime of change in the employment tribunals that case management responsibilities are given and taken by an employment judge and this was done twice in this case so as to keep within bounds the claim made by the Claimant. When a claim is being struck out it is important to indicate the basis upon which it is done and also to have in mind whether a fair trial is impossible and whether less drastic steps may be taken.

Discussion and conclusions

23. I will deal first with the ground of appeal advanced by the Claimant himself in respect of the additional Respondents. Seeking to recover from the argument of Mr Hare, the Claimant contended that he was bringing a claim of discrimination against these two officers. That is misconceived. Claims of discrimination were dismissed; there was no appeal. Secondly, he contends, after I drew attention to section 3A, that his claim is based on section 3A. That too is misconceived for by his own particulars the claim against the officers is limited to sections 32 and 33. I find the claim advanced before the employment judge related to section 33 only and thus it is the aiding and abetting of harassment.
24. It is difficult to see how the offensive act of harassment can be done by a person who is responding to a letter from the putative victim. The claim has to be that the unwanted conduct has the purpose or effect of violating the victim's dignity or creating an offensive environment for him. That is the nature of harassment. The separate liability under section 33 is of those who aid and abet such harassment and this is how the case is put against the second and third Respondents.
25. In my judgment, the judge was correct in his succinct analysis that it is not sufficient simply to say that the Registrar and President as figureheads should be sued simply for that reason. There has to be some evidence that they have knowingly committed the act of harassment or aided someone in so doing. On a careful analysis of the way in which the Claimant put it in his letter, I am satisfied that there is no claim which could be made against them of aiding under section 33 for the reasons correctly given by the judge. Therefore the appeal on this ground is dismissed.
26. As Mr Bhadra pointed out, it is not clear precisely on what ground the employment judge dismissed the Respondents from the proceedings. It is clear from the order made by Employment Judge Weiniger that they were likely to be dismissed from the proceedings on the grounds that claims against them were misconceived and scandalous and authorities on strikeout were produced. But that is not the language used by the employment judge for he talks about them being dismissed from the proceedings. It seems to me just as likely that he was exercising his power under rule 18(7)(a) relating to the entitlement of the Claimant to bring proceedings against the second and third Respondents and, if so, that is a straight question of law based upon the way in which the claim was put. For those reasons also the judgment was correctly made.
27. I then turn to the evidence point. I know Employment Judge Carstairs. I have worked with him as a part-time judge and at training courses. I have seen many of his judgments and I know, and have been reminded today, that he takes notes on a computer. I have no reason to consider on the material before me that when he says, "The Claimant confirmed to me and I sought to clarify" that that is precisely what occurred. There is no utility in seeking to resolve the dispute before me by going back to the judge. The dispute is that the Claimant did not say that he wanted to confine himself to matters from 2005 onwards for he showed in his letter material going back to 1997. On the other hand, Mr Hare who was there and his solicitor attending today say that that was what was put forward by the Claimant. I have no reason to consider in the light of what I regard as a weak submission on behalf of the Claimant that the firm finding by the judge in paragraph 5.7 does not represent what occurred before him. The material is also repeated in the judgment part on page 1. That decision was made as he reported it.
28. It must also be borne in mind that the complaints against the Respondent represented some form of re-litigation. In paragraph 5.6 (above), the judge is plainly reflecting upon the substance for he talks of the totality of the Claimant's complaints. This relates to paragraph 5.3. It is an intention to limit the case to those facts which are relevant and, as I hinted earlier on, the unappealed judgment refusing permission to amend is to be read with this. The plain intention of the judge was to keep this case within bounds. A simple illustration of time will do. The Claimant has produced a witness statement of 64 pages. If this ground of appeal succeeded the length of the hearing would, on his account, go from two to 15 days.
29. I have been reminded, and indeed need no reminding, but I have taken particular notice of the fact that the Claimant was at that hearing a litigant in person opposed by experienced Counsel and that he has sought to argue some of his appeal before me. Having listened to him, both in his direct arguments to me and in his interventions during Mr Hare's submissions, I have no doubt that it was correct for the employment judge to attempt to keep this case within manageable bounds by focusing strictly on what is relevant. In all parts of Mr Bhadra's submissions to me he was unable to focus on the relevant issue, as I regard it, and thus both employment judges plainly had that difficulty in presentation in mind when they made their orders. I will dismiss the evidence point, too.
30. I would very much like to thank Ms Criddle for giving her services today and for focusing on what, if anything was the only real point in this case. I would like to thank Mr Bhadra for his submissions to me and it was not for want of his presentation that I have dismissed it. And, of course, Mr Hare for making his written submissions which I accept. Other points were made during the course of the written arguments of the parties but I have only addressed the two which were live before me. This appeal is dismissed.
31. Directions on conciliation [not transcribed].