United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR O OGUNNAIKE (Solicitor) Messrs Leicester Williams & Co Solicitors Craven House 121 Kingsway London WC2B 6PA
For the Respondents	MR BEN COOPER (of Counsel) Instructed by: Messrs Wragge & Co LLP Solicitors 55 Colmore Row Birmingham B3 2AS


 


SUMMARY

PRACTICE AND PROCEDURE

Postponement or stay

Appellate jurisdiction/reasons/Burns-Barke

Where an application is made to an Employment Tribunal for a postponement in writing and at the relevant hearing, the Employment Judge should make and record his decision in refusing the application and give reasons. Time for appealing did not begin to run until that happened. The appeal against the substantive Judgment at that hearing was in time and so was the appeal against the implicit refusal of the application.

It is reasonably arguable at a full hearing that when the Claimants were banned from building sites and refused entry on several further occasions, there was a continuing state of affairs and time for presenting a claim form under the Race Relations Act 1976 did not begin to run from the latest actual application of the ban.

An appeal against uncapped wasted costs orders exceeding £40,000 might better be heard after the above point is decided.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case involves Employment Tribunal and Employment Appeal Tribunal procedure. It also includes a reflection on the substantive application of the law relating to what is described as a continuing act of discrimination as distinct from a one-off act. I will refer to the parties as the Claimants, whose interests are more or less identical, and the Respondents, who have slightly different interests from their respective employment relationships, to use the term neutrally. I will use the term 'engagement relationships'.

Introduction

2. In form, it is an appeal by the Claimants in those proceedings against a judgment on a pre-hearing review of Employment Judge Mahoney, sitting alone at Watford on 24 March 2009, sent to the parties with reasons on 21 July 2009. This followed a judgment itself on 1 July 2009, which is in slightly different form. The upshot was that the Judge refused an application by the Claimants to amend their claims. He made a decision that they were not employees of any of the Respondents; that claims as contract workers for the purposes of section 7 of the Race Relations Act 1976 would fail; and that there was no requirement to comply with the statutory grievance procedure under the Employment Act 2002. This is relevant to out-of-time claims, since without that procedure there is no automatic extension of time. Further, the claims themselves were out of time and the Judge refused to extend time on the grounds that it was not just and equitable to do so. The conclusion was that there was no jurisdiction to hear the claims of race discrimination and unlawful deduction of wages. Claims of unfair dismissal were withdrawn.
3. Behind that straightforward summary of events is hidden a very complicated infrastructure. I will draw upon the work of other Judges in these proceedings - they include HHJ Peter Clark, the Registrar, HHJ Serota QC, the President and to a minimal extent myself - in order to construct an understanding of these proceedings. I do so because part of it will go forward.
4. The hearing today has itself been a hearing of an appeal against that judgment together with a judgment in respect of a wasted costs application made by the Respondents, which resulted in a hearing on 31 July 2009 essentially on the papers but with attendance by a legal representative of one of the Respondents. In a judgment given on 5 August 2009, an application for a wasted costs order was granted. The outcome was that sums of respectively £22,500, £9,616.87 and £8,391.55 were awarded against Mr Ogunnaike, a solicitor who represents the Claimants. Reasons for that were given on 26 January 2010.
5. That was the subject of proceedings relating to an out-of-time Notice of Appeal by the Respondents, which were judged against them, but principally is an in-time appeal by Mr Ogunnaike as the object of the wasted costs order. The President who penultimately dealt with these matters prior to it coming to me, was of the view that the difficulties in the procedural history warranted a preliminary hearing on both of the matters which could, pursuant to a note that he directed, be determined as a full hearing since both sets of parties were represented. An option was available to the hearing Judge today to do what is sometimes done, to treat as a full hearing the whole or certain parts of the case.

The procedural history

6. At a PHR on 24 March 2009, Judge Mahoney was due to hear various issues, which he identified in paragraph 1.1 of the Reasons:

"1. This pre-hearing review is limited to consideration of the following issues, namely:-

1.1 Whether to allow the Claimants to amend their claims.

1.2 The employment status of the Claimants for unfair dismissal and discrimination claims.

1.3 Whether the Claimants have complied with the statutory grievance procedure with respect to their discrimination claims.

1.4 Whether the discrimination claims have been made in time and, if not, whether it is just and equitable to extend time."

The previous day, Mr Ogunnaike, who is the sole principal in the firm of Leicester Williams & Co, wrote asking for an adjournment. This is a substantial application: it raises a number of difficulties which the Claimants faced and it sought what is described as an adjournment but is actually a postponement of the hearing on the succeeding day. It is clear that the grounds put forward were to do with the preparation for the PHR, that is documents, bundles and witness statements. That matter included a contention that the Claimants would seek costs against the Respondents for the way in which they have failed to carry out, it is said, their duties in relation to orders of the Tribunal. An objection was made by the Respondents by fax.

7. The Judge considered the adjournment application and after a hearing of almost two hours, made a decision to go on with the case. During that time, he heard certain issues relating to the documents and he examined the documents with great care. Some of the grounds upon which I give this initial account of the facts comes from reasons supplied by the Judge in response to a request which I made in case management to deal with the issue of the postponement. The simple point is that there is no reference in the judgment or reasons to the application made in writing by Mr Ogunnaike and the objection by the Respondents. As is clear from the responses of the Judge, Mr Ogunnaike and Mr Ben Cooper, of counsel who appears today on behalf of all three Respondents, that the Judge did consider the merits of that application and refused it.
8. The case then went onto the substantive issues and the claims met the fate which I have described. He gave short summary reasons for the substantive decision. He appears to have given none orally in respect of the postponement. He said to the parties that he would give written reasons. The outcome was a judgment which in certain small respects differs according to the two versions I have cited above, and this related to one aspect of the grounds of appeal to do with unfair dismissal, that is whether the claims had been withdrawn or had been adjudicated. The position, therefore, was that the reasons were reserved by the Judge as he said he would provide them in writing at a later stage. Mr Ogunnaike, for the Claimants, wrote within a few days seeking written reasons of the decision. I say at once that that appears to be broad enough to include a request for written reasons relating to the postponement application.
9. The Judge, in his full reasons, refused the application to amend and on a slightly different basis, decided to dismiss all of the claims. On 21 July 2009, he sent to the parties a document headed "Judgement on Pre-Hearing Reasons, followed by Reasons". That is technically wrong because a judgment had already been provided, but there were differences relating, as I have said, to unfair dismissal which are now no longer in issue.
10. The Claimants appealed on 1 September 2009. The matter came before Judge Serota QC on the sift and he decided that the matter contained no grounds to send the case to a full hearing. Judge Serota was able to distinguish the various grounds and to divide them up into eight, and he said this:

"Ground 1 is clearly out of time; the order refusing an adjournment must have been made at the latest on 24th March. In any event the Cs have not lodged any reasons given by the ET for refusing an adjournment and in those circumstances it is impossible to demonstrate that the exercise of discretion by the EJ was flawed.

Ground 2 the EJ correctly directed himself as to the law and was entitled to conclude as he did at paras 30 and 31 that in the exercise of his discretion he would not allow the amendments, which were either not connected to the original claims, or raised new causes of action which would backdate to the original claim.

Ground 3 this is an abuse as it rolls together numerous complaints and does not condescend to explain why it is said the ET fell into error. In any event I do not see how the Cs can go behind a finding that they had abandoned their claims for unfair dismissal.

Ground 4 the Cs are incorrect in asserting that the statutory grievance procedures apply to 'workers' as opposed to employees.

Ground 5 The EJ was correct in determining that the claims were out of time and was entitled to conclude that time should not be extended.

Ground 6 I do not see any basis for challenging the EJ's decision.

Ground 7 again the EJ was correct in concluding that the grievance procedures did not apply and claims were out of time.

Ground 8 I can see no basis for challenging the EJ's decision that banning of the Cs from sites was not a continuing act; he correctly directed himself as to the law and applied it to the facts before him."

11. There was an issue for the Claimants to take forward and they submitted a fresh Notice of Appeal under rule 3(8), which came before the President. The grounds were very similar. In the meantime, I made an order for further information to be provided by the Judge as I have suggested above and this came back with his reasons. The Judge has no full recollection of what occurred but it is sufficient for our purposes today to note that the Judge looked at materials and made a decision. As it now appears, the Judge's reasoning in refusing the application for an adjournment was this:

"I had noted on the documents before me that I found as a fact that by letter dated 25 February 2009 the first respondent's representative asked the claimant's representative for copies of certain documents referred to on the claimant's disclosure list but did not receive them until 8 March 2009; that the initial bundle prepared by the claimant's representative was not in chronological order so the first respondent's representative prepared an index which they sent to all parties on 10 March; further, that the claimant's representative failed to request disclosure of the documents from the first respondent's list of documents (which they had provided with their letter dated 25 February) until 10 March 2009; and that on 17 March 2009 the first respondent's representatives wrote to all parties with a revised proposed index for the PHR bundle requesting comments. The claimant's representative failed to make comments or indeed respond to that letter.

On 20 March 2009 the first respondent's representative advised the claimant's representative that they were sending out the final bundle that day and enquired about exchange of witness statements but were informed by them that the bundle was not agreed and that they were refusing to discuss exchange of witness statements.

All three respondents had incurred brief fees and were ready to proceed."

That therefore constitutes the basis of the dispute on appeal about the postponement. Issue was taken by the Claimants with these reasons and it includes the matter to do with procedural fairness about documents, but that has not been pursued before me today.

The Issues

12. I will deal with the issues at the same time as I deal with the submissions upon them.

(1) The failure by the Judge to provide a decision and reasons.

13. This forms the basis of the first decision to be made in this case which is whether or not the appeal was in time. The appeal was in time in respect of the appeal on grounds relating to the substantive dismissal of the Claimants' cases. What is not in time, it is said, is an appeal against the decision not to postpone but to go ahead with the hearing. So what this invokes is the jurisdiction of the EAT to hear an appeal; but it also draws on the nature of decision-making in the Employment Tribunal. It is first necessary to look at how an Employment Tribunal makes its decision. This can be found in rule 10 of the 2004 Rules, which provides as follows:

"10. Case Management

(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of "hearing").

(2) Examples of orders which may be made under paragraph (1) are orders —

…

(m) postponing or adjourning any hearing;

…"

14. The requirement to give decisions falls into two parts: a decision for a judgment; and a decision for an order. Rule 28 provides as follows:

"28. Orders, Judgments and Reasons

(1) Chairmen or tribunals may issue the following —

(a) a "judgment", which is a final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs;

(b) an "order", which may be issued in relation to interim matters and it will require a person to do or not to do something.

…

(3) At the end of a hearing the chairman (or, as the case may be, the tribunal) shall either issue any order or judgment orally or shall reserve the judgment or order to be given in writing at a later date."

15. The form of Reasons is set out in rule 30, which provides as follows:

"30. Orders, Judgments and Reasons

(1) A tribunal or chairman must give reasons (either oral or written) for any —

(a) judgment; or

(b) order, if a request for reasons is made before or at the hearing at which the order is made.

(2) Reasons may be given orally at the time of issuing the judgment or order or they may be reserved to be given in writing at a later date. If reasons are reserved, they shall be signed by the chairman and sent to the parties by the Secretary.

(3) Written reasons shall only be provided:—

(a) in relation to judgments if requested by one of the parties within the time limit set out in paragraph (5); or

(b) in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time."

16. Thus, the duty is to provide oral reasons in relation to a judgment, but in relation to an order, if reasons are not provided, there appears to be no duty to provide them. The difficulty with this is that when an appeal is to be launched, time limits must be observed. An appeal may be instituted, but it must contain the judgment or order appeal from, including the written record of the order, see EAT rule 3(1)(e). The period when an appeal must be lodged is 42 days from the date when written reasons were given or in a case where reasons were requested orally at the hearing and were reserved, then 42 days from the date on which those reasons were sent. Rule 3(3)(b) says this:

"In the case of an appeal from an order of an Employment Tribunal 42 days from the date of the order."

Practice Direction 3.1 and 3.2 in the EAT contain a deeming provision, as follows:

"3. Time for Instituting Appeals

3.1 The time within which an appeal must be instituted depends on whether the appeal is against a judgment or against an order or decision of the Employment Tribunal.

3.2 If the appeal is against an order or decision, the appeal must be instituted within 42 days of the date of the order or decision. The EAT will treat a Tribunal's refusal to make an order or decision as itself constituting an order or decision. The date of an order or decision is the date when the order or decision was sent to the parties, which is normally recorded on or in the order or decision."

17. The difficulty in this case is that there still is no written record of the decision of the Judge in respect of the application made on 23 March 2009 for a postponement. Nor is there anything but an implicit decision to refuse the postponement. There are some reasons which have been ordered by the EAT, but there is not actually an order signed by the Judge in proper form. Does this make a difference? The real question is: when does time run? According to Mr Cooper, since it is common ground that a decision was made by the Judge at the hearing on 24 March 2009, that is the date from which 42 days runs in which to appeal against the order. According to Mr Ogunnaike, there has never been an order and so time has not yet begun to run and it follows that the appeal lodged within time in respect of the substantive issues applies equally here and the appeal is within time.
18. Mr Cooper contends that the Rules of the Employment Tribunal are clear as to what happens when an order is made (see the citation from rule 10(1) above), but not as to a refusal to make an order. He contends that it is contrary to the overriding objective which is to deal with cases efficiently for tribunal Judges to be burdened with having to make and sign an order for every refusal of an application they make before and during a hearing. He does however accept that it is best practice for an Employment Judge making an important decision relating to the procedure at a hearing or governing a hearing made prior to it for the reasons to be recorded, albeit briefly. He is right about that and Employment Judges know from their judicial training, provided regularly now, that it is wise to include a note of procedural decisions made during a judgment.
19. I have every sympathy for the Claimants in this case. They did what was required of them. Mr Ogunnaike wrote asking for written reasons. He did not need to because the Judge had said he would give full reasons in writing, but providently he did ask for them. Since it is clear as a matter of fact that the Judge gave a decision on that day, he ought to have given that as part of his judgment in writing and he should have given reasons for it. The case took up most of the morning: there was careful examination of the documents, and so it cried out for a reasoned decision to be made.
20. I reject the contention that the Claimants were in possession of an order corresponding to rule 30 at 24 March 2009, since they do not even now have an order to that effect, and thus it cannot be said that the appeal was out of time. However, if I am wrong about my construction of the Rules of the Employment Tribunal and the EAT and the context of the overriding objective, I would exercise my discretion under rule 37. It is a discretion used sparingly: see my approach to late Notices of Appeal in, for example, Muschett v London Borough of Hounslow and Others [2009] ICR 424. This case, however, involves a valid Notice of Appeal against the orders that were made but in respect of which there is no order on the postponement. The logic of the case is that a decision was made. Discretion should if necessary be exercised to allow this appeal to be heard. Mr Ogunnaike did what was prudent to ask for reasons and he confidently expected reasons to include the reasons on his postponement application.
21. Here a judgment on a PHR and on an application to postpone, and if he is not out of time in respect of the written reasons which are extant, nor is he out of time in respect of the application to postpone. If in doubt, I would say that this is a case where the rules are confused and the Claimants should not be the victim of that when their solicitor took proper steps to ensure that the matter was ready for an appeal.

(2) Was the Judge right to exercise his discretion in the way he did?

22. The Judge examined in his additional Reasons the reason for the Claimants' application for a postponement. I have read most carefully the accounts given to me in the form of evidence and I prefer the account given by Mr Cooper of the examination by the Judge of the material. He has the benefit of seeing the notes of a number of professionals engaged on that day instructing him and otherwise. He gives an account of what material the Judge went through in order to determine that there should not be a postponement. The central features relate to disputes about the bundles and about the material. He contends that there were breaches in the orders for preparation for the PHR by all of the parties.
23. Mr Ogunnaike resists that criticism, but it seems to me that the preparation on behalf of the Claimants was not all it should have been. I appreciate that they were waiting for what they thought were certain documents, and lists were exchanged in crossfire, neither party responding precisely to points raised by the others. Nevertheless, these were matters which the Judge was entitled to consider. The Judge came to the conclusion that the parties were ready for the issue to be tried at a PHR. I would be very unhappy about disagreeing with a case management order of an interim nature at a PHR where the Judge had considered the material which was said to be needed and which was not provided.
24. The Employment Judge, having now supplied the additional materials (and I have looked at the evidence of Mr Ogunnaike and Mr Cooper), correctly looked at all of the materials and came to the conclusion that it was not unfair to carry on with the PHR, and I see no reason for interfering with this broad discretion given to an Employment Judge (see, for example, the judgment of the Court of Appeal upholding my own in Beck v CBIC [2009] EWCA Civ 619, with the authorities cited there by Wall LJ, for example G v G [1985] 1 WLR 647).

(3) Did the Judge make the right decision?

25. On this matter, it is clear that the Judge did make the right decision: he was unarguably right. The Claimants were complaining about certain missing documents that had not been provided by the Respondents and had not been put in bundles. Mr Cooper says, without any flourish of advocacy but with considerable force, even today the Claimants have not identified any particular document which caused them such disadvantage, and there has been no answer by Mr Ogunnaike to that rhetorical challenge.
26. The highest it is put is that there is an email of 8 April 2008 from the Claimants, which was not in the Respondents' bundle. The answer to this was given by Mr Ogunnaike himself: it was in the Claimants' bundle and he could have prepared anything. The case actually was that the Respondents were not telling the truth when they denied receiving this, but that is the case that could have been made in witness statements and by providing documents by the Claimants themselves. Certainly it is not a ground of unfairness to the Claimants. In any event, it was not a relevant issue to the PHR; it simply set out their complaint.
27. So on that basis, I would hold that the Employment Judge, although he made an error in respect of failing to provide the reasons at the right time, was unarguably correct in refusing the application for a postponement. For the avoidance of doubt, Employment Judges should adopt the practice, when making a decision of importance such as this following a written application by a representative for a postponement, to include a decision and reasons for it.
28. The grounds which have been numbered (2) to (7) by Judge Serota are not pursued on appeal in the light of indications I gave to Mr Ogunnaike. It is a tribute to his broad approach to where good points can be made that he takes these matters no further and they are dismissed.

A continuing act?

29. I turn to the eighth ground which is the continuing act. The question is this: when the management of the First Respondent banned the Claimants from working at their sites, did time run from that date or was there a policy to ban them which is at all times in place and against which the Claimants may at any time complain? Mr Cooper contends that it is wrong to have an open-ended right to challenge, particularly where there has been no actual event. Events in this case took place on 6, 7, 8 and 18 April 2008. The claim form is submitted on 6 August 2008 and so would be out of time for those events, but they are sought to be joined by an overarching policy. The reason why this is in play is because the Judge held that the claims should have been made within three months of the last event on 18 April 2008, and were therefore out of time.
30. He drew attention to certain features of the case such as race relations questionnaires and complaints made on their behalf and the soliciting of legal advice. He decided that it was not just and equitable to extend time to allow a claim to be made in respect of those earlier April dates. However, if there is a continuing act, then time will not begin to run and this claim was within time because the policy was still in place, the Claimants say.
31. Authorities have been put before me, including a number in which I have given judgment, and I have decided that this point requires further argument. The parties received the note from the President indicating that it may be apposite to do this, but I have drawn the attention of the parties to authorities today which will be of assistance in pursuing this matter. They include, for example, Coutts v Cure [2005] ICR 1098 and Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548, to do with these same points.
32. It is reasonably arguable at a full hearing that when the Claimants were banned from building sites and refused entry on several further occasions, there was a continuing state of affairs and time for presenting a claim form under the Race Relations Act 1976 did not begin to run from the latest actual application of the ban. It is for consideration whether what occurred, or what is likely to occur on any further occasion is, to use Mr Cooper's language, simply a reiteration of a fixed decision made in April to ban the two men or whether it is the operation of a rule which is always in place. It will also be available to him to argue that even if the Claimants established that they were the subject of unlawful race discrimination, for they are black African, in April, this list of people which includes both of them is not made up of persons of the same racial group, and therefore cannot give rise to a claim that there is a rule in place. These issues require more careful consideration and will go to a full hearing.

Costs appeal

33. I then turn to the second appeal which is against the wasted costs order. Very helpfully, Mr Cooper accepts that it is premature to hear argument and make a judgment on this matter on it. If the Claimants succeed on the point which I have sent to a full hearing, it may well affect the view the EAT takes of the Judge's costs order. If Mr Ogunnaike is correct then the case will be heard at a hearing, and this costs matter can therefore be parked. So, for expedience, I will give permission for the wasted costs order to be heard at a full hearing at the same time as the full hearing on the continuing act point.