United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P DOUGHTY (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) and MS S JABEEN (The Appellant in Person)
For the Respondent	MS N MOTRAGHI (of Counsel) Instructed by: Messrs Cobbetts LLP Solicitor One Colmore Square Birmingham B4 6AJ


 


SUMMARY

PRACTICE AND PROCEDURE

Bias, misconduct and procedural irregularity

On the material available at a contested preliminary hearing, there was no prospect that on live evidence the EAT would find that an Employment Judge announced a decision refusing to strike out the Claimant's case before lunch, and without explanation gave a Judgment to the opposite effect after lunch. The Claimant was not a reliable reporter of her own legal proceedings, her accounts not being supported by respectively her junior and leading Counsel.


 


HIS HONOUR JUDGE MCMULLEN QC

1. This case is about an Employment Judge's conduct of a hearing in which it is said that he made a decision before lunch in favour of the Claimant and reversed it after lunch. I will refer to the parties as the Claimant, Ms Jabeen, and Tower Hamlets Primary Care Trust, the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a judgment of Employment Judge Goodrich sitting alone at a PHR at Stratford East on 20 October 2008, registered with reasons on 30 December 2008. The Respondent was represented, as here, by Ms Nadia Motraghi, the Claimant by Mr David Brounger, and today she has the advantage to be represented by Mr Peter Doughty (all of Counsel) who gives his services under the egis of the ELAA Scheme. He has represented the Claimant on one aspect of the case and she has represented herself on another. I will call them the procedural and substantive issues.
3. The Employment Judge ruled out of time claims for unfair dismissal and of discrimination on the grounds of race, disability, religion and belief, and declined to extent time so that they might be validly presented. The parties have a long history of disagreement and earlier proceedings were brought by the Claimant in a range of different formats, all of which bar one were dismissed following a 58 page judgment and a 15 day trial. Appeals to the EAT were rejected as out of time.

The scope of this hearing

4. The judgment was appealed by the Claimant on two grounds, that the judge erred in his approach to the substance and that he acted irregularly in giving a decision in her favour and then reversing it after lunch.
5. Those allegations were held to have no prospect of success on the sift by HHJ Peter Clark, and the matter was pursued by the Claimant under Rule 3(10) at a hearing before HHJ Serota QC. There, the Claimant had the advantage to be represented by Mr John Davies QC, also giving his services under the ELAA Scheme.
6. The judge ordered a preliminary hearing with an estimate of two hours before a judge alone. He directed that an affidavit which had already been prepared by the Claimant on the procedural issue be served on the Employment Judge and directed that the Claimant's Counsel at the hearing should lodge a statement giving details of what was described as the improper conduct.
7. The order is this: "This appeal be set down for a preliminary hearing ...". In the light of that, it was open to question as to what was being sent to a preliminary hearing: simply the procedural point or that and the substantive point. This caused a query to be raised by the Respondent's solicitor by a letter and she was reassured by a case manager that the preliminary hearing would be on all grounds of appeal. That has continued to cause disagreement.
8. Mr Doughty took the sensible step of consulting his predecessor, Mr Davies, as to what occurred before Judge Serota. No reasons are given by him during the course of the short Rule 3(10) hearing but Mr Davies understood that only the procedural ground would go forward to a preliminary hearing.
9. I have been shown a note by Ms Scully, solicitor for the Respondent, who attended, of course having no role to play at the Rule 3(10) hearing, which indicates the judge saying that the only issue that caused him concern was the procedural issue. The directions which the judge gave are entirely in terms of the procedure.
10. Mr Doughty was unable to argue differently from what he had been told by Mr Davies for entirely understandable professional reasons, and so within the flexible procedure which we operate here Ms Jabeen addressed me herself and it was her view that at the hearing, fortified by the case manager's letter, all grounds were live.
11. In the light of that material, I have to decide the scope of this preliminary hearing. Judge Serota has given no written judgment and does not appear to have given substantive reasons. I agree with Ms Jabeen that the case manager's letter may have reassured her but that, of course, is simply a reflection by the case manager on the judge's order and the judge's order does, indeed, make it known the appeal would be for a preliminary hearing. I am concerned not with matters of form but with matters of substance, and as a matter of substance I hold that there was an examination by Judge Serota of the Claimant's claim on the substantive grounds and he rejected those under Rule 3(10) while allowing further life to be breathed into the case by way of the procedural argument. The product of the Rule 3(10) hearing is a preliminary hearing on procedure only. [Judge Serota has subsequently issued an amended order to that effect, with reasons.]

The procedural appeal

12. In approaching this simple matter, I bear in mind that if the procedural point succeeds it would have the effect most likely of causing the court to set aside the judgment of the Employment Tribunal on the substantive issues for I do not know any authority which allows a case in which there has been material irregularity or bias to survive.
13. At one stage during the early part of this case, I indicated to the parties that I would be prepared to hear this myself as a full hearing conducted along the lines of Facey v Midas Retail Security Ltd [2001] ICR 287 but that was resisted by Ms Jabeen herself. What is before me, therefore, are the Claimant's affidavit, the judge's comments upon it, and statements by Mr Brounger and Ms Motraghi. Later a statement by the Claimant's husband, Mr Jabeen, was filed and therefore there has been no opportunity for any of them to comment on it.
14. The question for me is whether applying the rules which I set out in Abegaze v Shrewsbury College of Arts and Technology UKEAT/0176/07, undisturbed on this point on appeal to the Court of Appeal [2009] EWCA Civ 96, there is a real likelihood that the judge behaved unfavourably towards the Claimant in the eyes of a reasonable and informed observer. That requires me to take a view as to whether there is a reasonable prospect of success in that argument when the matters would be presented at first instance to a division of the EAT.
15. The simple situation is this. The judge heard evidence and arguments on behalf of both parties during the morning of 20 October 2008. At the very end of the morning, the judge invited both Counsel to consider directions. According to the Claimant, the judge gave a judgment in her favour on the time points and he directed Counsel to agree directions because the case was going to be heard. The judge adjourned for two hours and came back and gave an oral judgment in favour of the Respondent. The Claimant says that is unfair. The evidence of Mr Jabeen is to the same effect.
16. The evidence of Mr Brounger does not support the Claimant's case. He says he had no recollection of the judge changing his mind. He conducted a thorough search of his notes and there is no such occurrence. He does recall that at some stage directions were directed to be considered but he says it was conditional upon the Respondent's application being dismissed.
17. Ms Motraghi's account is that the judge did not change his mind. He came back after lunch and gave his first and only decision which was in favour of the Respondent. She argues that her application for costs to be paid by the Claimant would not have been made at the end of the hearing if the judge had at one stage been convinced of the correctness of the Claimant's case.
18. The judge, of course, cannot be cross-examined. I know the Claimant in writing sought for him to be called as a witness. He says that he did not make or announce a decision before lunch. He asserts that he did not change his judgment. He contends that if it were true that he changed his judgment, Counsel for the Claimant would certainly have remonstrated with him for so doing. He also reflects upon the point subsequently made by Ms Motraghi that she would not have made the application for costs because the obvious riposte would have been from Mr Brounger that the case could hardly have been misconceived if he had persuaded a judge before lunch.
19. In the light of that material, I have to form a view as to whether there is a reasonable prospect of success in the Claimant's appeal. The only thing missing from this is live evidence but at the moment, dealing with this on the papers and submissions, a lower threshold than at a full hearing, I have no doubt that the Claimant is mistaken. She is not a faithful reporter of events in court as her account of the proceedings before Judge Serota indicates. Neither her leading Counsel nor the solicitor for the Respondent was in any doubt as to the outcome of that hearing. Only the Claimant seems to think that her substantive case had life.
20. As to the events on 20 October 2008, it is inherently incredible that the judge should have changed his mind without any announcement. There is no evidence by the Claimant, Mr Jabeen or Mr Brounger as to the judge explaining his change of heart. If he did he would have made it clear that he had changed his mind and invited further submissions. That accords with the approach taken in Spring Services Group v Higginbotham [1990] ICR 111. As a matter of law, a judge can change a decision before the judgment is perfected. See Re Barrell Enterprises [1973] 1 WLR 19. But, of course, in this case no judgment had been perfected.
21. The facts which are likely to be found in this case are that the judge did not announce a decision. It is likely that he indicated that if the Claimant succeeded, directions would need to be drawn up. It is possible to misunderstand the use of the conditional. "If I am in favour of the Claimant, directions need to be given. Please go away and consider that". But that is a far cry from a judge deciding in favour of the Claimant and then reversing it. In my judgment, the Claimant and her husband have misunderstood the legal proceedings and they do not correspond to the accounts given by both Counsel in the case and by the judge, which I prefer.
22. Even if the judge, contrary to my view, had made a decision then turned 180 degrees, he would be entitled to do that. He would, however, be required to indicate to the parties that he had changed his mind and to invite further submissions.
23. None of that, however, is relevant because I hold that there is no reasonable prospect of success in this point and on this material I find that the judge's account is correct. I bear in mind that the Claimant would have wished to bring Mr Brounger to court to cross-examine him but that, again, is a misunderstanding of legal proceedings. He is a witness for her and he does not support her case. He could be produced as a hostile witness but, if I envisage this case played out in front of a single judge of the EAT making decisions at first instance, it is unlikely that Mr Brounger would change his formal statement under cross-examination by his former client.
24. In those circumstances, the procedural grounds are dismissed.
25. As to the substantive grounds, I have no doubt of the strength of feeling of Mr Jabeen about her relationship with the Respondent in which there has been a good deal of antagonism over the years. I read most carefully her lengthy skeleton argument. I have attempted to allocate importance to the very large number of keyboard strokes which she deploys in order to make a point: underlining, bold, italics, upper case. But in my judgment this matter has been dealt with by Judge Serota. Judge Clark saw no merit in it and, I have to say, if I were to give an opinion for the purposes of Rule 3(10) I would have formed the same view as they did.
26. I say that not because it is necessary but because I know the Claimant and her husband feel so strongly about it and in case it may assist her to know that now three judges have found against her appeal together with Employment Judge Goodrich, who committed no procedural irregularity or exhibited bias. I would like to thank Mr Doughty and Ms Jabeen for contributing their arguments and, of course, Ms Motraghi. The appeal is dismissed.