United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Written submissions
For the Respondents	Written submissions


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. This is, formally, the full hearing of an appeal against the order of an Employment Tribunal sitting in Manchester on 6 June 2008 ordering the Appellant to pay costs to the two Respondents in the sum of just over £9,000. The Appellant's essential grounds of appeal are that the Tribunal, and in particular the Chairman, had displayed bias against him in the course of the prior substantive hearing in which his claims of racial discrimination had been dismissed. He complains in particular of some strong criticisms of his conduct made in the written Reasons following that hearing, which were relied on by the Tribunal in making its subsequent costs ruling. The Appellant has lodged affidavits in support of his allegations; and the Chairman and lay members have responded in detail.
2. The Respondents have made it clear that they do not regard the costs of a contested hearing on the issue as being justified and offered in correspondence to agree to the appeal being allowed and the order of the Employment Tribunal being rescinded. The Appellant was plainly agreeable to that outcome as far as it went; but he was only prepared to agree to the Respondents' proposal on conditions which they were not prepared to accept, and to which we refer below.
3. The matter came before me on the papers, and I identified a further difficulty about allowing the appeal by consent, namely that it was inappropriate to do so in circumstances where no error on the part of the Employment Tribunal had been demonstrated. By a letter dated 27 July 2009 I proposed an alternative way forward, by which this Tribunal would use its powers under s. 35 (1) (a) of the Employment Tribunals Act 1996 to review the original costs order under rule 34 (5) of the Employment Tribunals Rules of Procedure and revoke it under rule 36 (3) of those Rules on the basis that the Respondents wished to withdraw their underlying application for costs: once the order of the Employment Tribunal had been revoked by that route, the appeal would necessarily fall away, although it would still require to be formally dismissed. I took the view, however, that such a course could only be taken by a full Tribunal at a hearing; and such a hearing would in any event be necessary if the Appellant wished to try to insist on the conditions to which he had referred. I accordingly directed the hearing which has now been fixed for today. I indicated, however, that neither party need attend, and that, if they did not, the hearing would proceed on the basis of the submissions already made in correspondence and any further submissions lodged within 21 days thereafter.
4. Neither party has in fact attended. Both Respondents have written short supplementary letters, and we have today also received a further letter from the Appellant. That letter was outside the 21–day time limit which I specified, and appeared to raise at least one new matter. It has accordingly provoked two very recent letters of protest from the Respondents; but, as will appear, in the light of our decision it gives rise to no difficulty.
5. It is clear from the letters received that all parties are in principle agreeable to the course proposed in my letter, and we accordingly revoke the order of the Tribunal and dismiss the appeal. The essential question is whether we should make any further order or finding as sought by the Appellant.
6. The Appellant had initially sought two things as conditions of his consent to the disposal of the appeal. One was that the Respondents should pay his costs of the appeal. By his letter of yesterday's date he has withdrawn that application as "a demonstration of goodwill"; and in the circumstances we need say no more about it, save to commend his good sense in taking that course.
7. The other condition was that the criticisms made of his conduct by the Employment Tribunal to which we have referred above should be "removed". The Appellant believes that those findings were unfair (and indeed are the principal manifestation of the Chairman's bias against him) and he says that he is very anxious to clear his name. What, in practice, this condition requires – as the Appellant recognises in his most recent letter – is that we should make positive findings to the effect that the Tribunal's criticisms of the Appellant were wrong. We cannot accede to that request. As I said in the letter of 27 July, it is not part of the function of this Tribunal to resolve issues which are no longer material to any actual legal liability of the parties. It would be wrong in principle to keep the costs order alive – in circumstances where both parties wish to see it revoked – simply as a vehicle for an examination of whether the criticisms of the Appellant were justified; and even if we were willing to consider taking that course, we could not fairly undertake the exercise at a hearing which neither party has attended and for the purpose of which the Respondents have not been required to file their own evidence. There is a further point. The Tribunal's findings about the Appellant's conduct were, as we have said, first made in the context of the substantive decision on his discrimination claim. The primary vehicle for challenging them should have been by an appeal against that decision. Unfortunately, the Appellant brought his appeal against that decision out of time and was refused an extension. It is in those circumstances even less acceptable for the present appeal to be used as an artificial vehicle for examining criticisms of the Appellant made on a different occasion.
8. We should mention finally that in his letter of yesterday the Appellant records his view, which he says he can now substantiate, that one of the Respondents' witnesses at the original substantive hearing gave untruthful evidence. He does not, however, ask for any relief in this regard, and there is in any event none that could be given on the present appeal.