United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0158_11_0410.html
Cite as: [2011] UKEAT 158_11_411, [2011] UKEAT 0158_11_0411

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Appeal Nos. UKEAT/0157/11/DA

UKEAT/0158/11/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 October 2011

Before

HIS HONOUR JUDGE McMULLEN QC

MRS C BAELZ

MR P SMITH

MS U BHARDWAJ APPELLANT

FDA & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – ALL PARTIES

APPEARANCES

For the Appellant

MR JOE SYKES

(Consultant)

Employment Lawyers

107 Fleet Street

London

EC4A 2AB

For the Respondents

MR MOHINDERPAL SETHI

(of Counsel)

Instructed by (for 1^st, 5^th & 6^th Respondents):

Russell Jones & Walker Solicitors

50-52 Chancery Lane

London

WC2A 1HL

(For 2^nd 3^rd & 4^th Respondents)

Simpson Millar Solicitors

2^nd Floor

33-41 Dallington Street

London

EC1V 0BB

SUMMARY

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

It is reasonably arguable that contact between the lay members of the Employment Tribunal and three of the five individual Respondents, themselves lay members, created an appearance of bias. Subject to that, grounds of appeal based on perversity, reasons, time-bar, falsity, good faith and agency were all dismissed.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about Employment Tribunal procedure under the broad heading of apparent bias and substantive issues of unlawful race discrimination, victimisation and unjustifiable discipline by an independent trade union of its members. This is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience of law and unions, have contributed. We will refer to the parties as the Claimant and the Respondents.

Introduction

2. It is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal sitting over some 40 days at London Central, under the chairmanship of Employment Judge James Tayler, sitting with Ms Macintosh and Mr Carter. The Respondents were represented, some by Mr Mohinderpal Sethi and some by Ms A Mayhew of counsel. The Claimant was represented by Mr Mark Sutton of counsel. Today she is represented by Mr Joe Sykes, a consultant, and Mr Sethi appears now for all six of the Respondents. They are five officers of FDA, a trade union, and a further unincorporated association.

3. The Respondents contended that they did not discriminate against, or victimise, the Claimant, nor cause any unjustifiable discipline to be taken against her. The Employment Tribunal found against the Claimant on all of her extensive catalogue of complaints. She appeals, raising both substantive and procedural issues. First, she contends that the Tribunal gave the appearance of bias and, secondly, that the Tribunal was in any event wrong in law.

4. The focus of this case is not only the Judgment which extends for some 90 pages, sent to the parties on 17 September 2010, but also the decision made by Judge Tayler to refuse an application for review, contained in a letter of 11 November 2010. There are other communications which are relevant to the apparent bias appeal.

5. A direction sending these two appeals to a preliminary hearing, at which both parties are represented, was given by HHJ Peter Clark. I also made case management decisions just before the hearing, none of which is now relevant or pursued further.

The legislation

6. As to the substantive claims, the legislation is set out without controversy by the Employment Tribunal in paragraphs 414-445 in some seven pages of its Judgment.

7. Direct race discrimination is outlawed by s.1 of the Race Relations Act 1976. The Act applies to trade unions by s.11 and requires the same fair treatment by a trade union as by employers.

8. The Tribunal addressed itself in relation to the burden of proof under s.54A and the relevant authorities. S.2 of the Race Relations Act gives protection against discrimination by way of victimisation, which requires there to be a protected act and action taken on the ground of having done a protected act. That is applied to a trade union by s.11(3), requiring less favourable treatment on the ground that a protected act has been done, as a result of which the Claimant has suffered a detriment. The Tribunal in its own words said this:

“430. However, the section does not apply where any allegation made by the Claimant was both false and in bad faith.”

9. Secondary liability, as the Tribunal coined it, is provided by s.32 and applies to agents. Section 33 makes unlawful the aiding of unlawful acts. A claim should be presented within three months (see s.68) but there is a just and equitable extension (see s.68(7)). The Tribunal directed itself about that extension and what is known as a continuing act (see paragraphs 440 and 441 of the Judgment).

10. It is common ground that the elements relating to information, and allegations being false and made not in good faith, apply both to victimisation and to unjustifiable discipline, as Mr Sykes helpfully puts them both together in his skeleton argument. Taking the relevant passage from ss.64-65 of the Trade Union Labour Relations Consolidation Act 1992:

“(6) An individual is not unjustifiably disciplined if it is shown-

(a) that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in subsection (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,

(b) that the assertion was false, and

(c) that he made the assertion, or encouraged and assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,

and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.”

11. It is apparent that the Tribunal had in its mind that linkage between the two statutory provisions (see the passage we have cited from 430 and the above citation from the 1992 Act). The time limit in respect of such acts, however, is not as generous. The employment rights jurisdictions and s.66 of the Trade Union Labour Relations Consolidation Act provide a period of three months, unless it was not reasonably practicable to so present. So the Tribunal had in mind the two different time limits for the different forms of offence alleged here.

Our approach to the appeals

12. The central and novel feature of this case is the appointment of three of the five individual Respondents as lay members of the Employment Tribunals. Ms O’Toole’s involvement goes back a long time and it was for that reason that the case was moved from London South, where she sits, to London Central. During the time when the Respondents were the subject of these proceedings brought by the Claimant, Ms Crighton was appointed to London Central and Mr Whiteman to London South.

13. We have been referred in detail to the law on apparent bias emerging from such authorities as Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 480, paragraph 26, and the standard authority on apparent bias (Porter v Magill [2002] 2 AC 357). In particular, the Judgment of the House of Lords in Lawal v Northern Spirit Ltd [2003] UKHL 35 is particularly relevant since it deals with the unique tripartite constitution of the EAT and the relationship between that bench and advocates who sit on it as recorders, and who appear before it. It provides much material for decision-making in respect of the junior branch of our jurisdiction, the Employment Tribunals.

14. We consider that the unique circumstances of this case should warrant a full hearing. It is not simply the constitutional position of the three Respondents. There is also a relationship with two witnesses, one on each side, who are lay members; and the circumstances in which an allegation of apparent bias arises in its particular detail, for example in respect of the meeting of a Respondent and the member at a training course. These matters will require a full discussion.

15. In the skeleton argument advanced by Mr Sykes, there is mention of actual bias, but no oral argument was addressed to us on that basis. Mr Sethi noted in his submissions that no argument on actual bias was advanced and Mr Sykes in reply said nothing. So this case will go forward on the basis of the procedural challenges based upon the contention that there was an appearance of bias in the Tribunal. The substantive Judgment of the Tribunal and Judge Tayler’s refusal of review will be relevant, because in the latter he developed certain matters which were not fully developed in the substantive Judgment and, in fairness to the Claimant, both of these matters will go forward.

16. Insofar as there is an application for new evidence, the material which is before us will be exigible before the full hearing, but no other matters: the appeal will be tried on this material alone. There have been a number of applications for further questions to be weighed against the Employment Tribunal but they are not now live.

17. At the outset of the proceedings, we canvassed with both advocates the possible outcomes and it was agreed by both of them that if there were a full hearing and the procedural point succeeded, the likely conclusion is that the whole Judgment would be set aside, there would be an order for a re-hearing, and it would probably be in a different region. On that basis we considered whether it was necessary for us to hear arguments on the substantive point. Mr Sykes most helpfully confined his arguments to the written material he had produced, and indicated they would take only a few minutes.

18. Mr Sethi responded by reference to his very detailed submissions in writing, dealing with the substantive points, he being content to rely principally on the liability Judgment and the Judge’s Reasons on refusal to review to uphold the Judgment against the challenge of apparent bias.

19. In those circumstances, it is expeditious for us to deal with the substantive points, acknowledging, as we do, that if Ms Bhardwaj does succeed on an allegation of apparent bias, it is most likely that the whole Judgment would be set aside. We also consider it expeditious because very considerable Judge and lay member time has been invested in this preliminary hearing. As we have said the Judgment is 90 pages, the bundle before us is already 438 pages and the authorities extend to some 212 pages. The skeleton arguments and written submissions of the parties extend to about 40 pages. So, it is in accordance with the overriding objective that we dispose of the substantive points. We hope we will be forgiven in dealing with them in the same concise and expeditious way in which both Mr Sykes and Mr Sethi have addressed us.

20. To that end, our description of the facts will be the shorter, and we bear in mind that we are telling the story to the people who have been involved in this for many years, as well as for review by the Court of Appeal if so minded.

The facts

21. The Tribunal introduced the parties to us in the following way:

“13. The FDA is an independent trade union representing senior staff in the Civil Service and National Health Service. It has approximately 13,000 members in the Civil Service.

14. The FDA is organised into sections, one of which is the CPS Section. The CPS Section is divided into branches; one of which is the CPS London Branch. The branches elect delegates to the CPS Section Council, which is governed by a CPS Section Committee. The members of the CPS Section Committee are elected by the delegates to the CPS Section Council.

15. In 1994 Ms Crighton became a Member and lay representative of the FDA. In 1995 she was elected as Deputy Convenor of the CPS London Branch.

16. In 2001 the Denman report into race equality within the CPS was published. Ms Denman concluded that there was evidence of institutional racism within the CPS. This finding was accepted by the then Director of Public Prosecution, Sir David Calvert Smith.

17. In 2001 Ms O’Toole was elected as a lay FDA representative.

18. On 9 February 2002 (1/9) the CPS London Branch held its AGM. It was recorded in the minutes of the meeting, under the heading Whitley Council Representatives:

‘It was resolved that the Area Whitley Council representatives shall be the Convenor, the Secretary, the Deputy Convenor of the London Branch. In the event that any of the named officers are unable to attend any meeting, the Convenor and Secretary shall nominate a replacement.’

19. On 12 January 2005 the Claimant commenced employment with the CPS as a Crown Prosecutor based at Edmonton Police Station. On 24 February 2005 the Claimant joined the FDA. In April 2005 the Claimant contacted the FDA for advice in relation to her concern that her starting salary was lower than that of equivalent Crown Prosecutors and that this might constitute race or sex discrimination. The Claimant met with Paul Nielson, the paid officer of the FDA with responsibility for the CPS at the time, and discussed her concerns. On 11 October 2005 Mr Nielson wrote to the Claimant stating that the FDA would not support her proposed complaint against the CPS (1/15):

‘I can see why you feel unfairly treated by the CPS but as I explained at out meeting, although they could have handled matters better, there is, in my opinion, n formal challenge we can mount.’

20. Later in the letter he stated:

‘As I explained, the record of the CPS in appointing women and ethnic minority staff to C2 over the last year is such that we could not mount a realistic challenge that your interview score was affected by issues of discrimination.’”

22. There was a good deal of bad blood between a number of the actors in this drama, and in due course the Claimant issued claims alleging race discrimination, victimisation and unjustifiable discipline against her union, and the individual officers concerned.

False and in bad faith

23. The Tribunal examined the 20 or so acts of alleged detriment and the 15 or so protected acts, and dismissed all of them for one reason or another. The central tenet of the Tribunal’s reasoning can be summarised by its finding at the end of a long analysis under the heading of “Applying Law to the Facts” in the following way, giving us some feel for the background:

“501. These were the real reasons for the Claimant’s treatment.

502. The Claimant relies on the letter from Cater, Leydon, Millard as the eleventh Protected Act. In that letter it was alleged, on the Claimant’s behalf, that the actions of the Section Committee in suspending the Claimant amounted to victimisation and unjustifiable disciplining. The letter made no reference to the fact that the Claimant had suggested that the London Respondents should be suspended. We return in our further analysis to the question of whether the Claimant’s allegation was made false and made in bad faith.

503. The Claimant raises a number of matters in respect of the CPS Section Committee meeting of 13 November 2008. She complains as Detriment 18 that a decision was taken to suspend the operation of the committee in the light of a fundamental breakdown of trust and confidence between the committee and herself. The decision to suspend the committee was taken as a result of the e-mail that the Claimant sent to all members asking them to note that potential individual liability and the complaints made in the letter from Cater, Millard, Leydon of 6 November 2008 suggesting that the removal of the Claimant from her role as London Equalities Officer was unlawful. We return in our later analysis to the question of whether these allegations were false and made in bad faith.”

24. Those passages fall within a long sequence of similarly phrased conclusions, all of which can be summarised in the following way:

“512. In our above analysis there are numerous complaints raised by the Claimant that we have not accepted as a matter of fact or have not held that the Claimant was subject to a detriment. Save in relation to the matters that we go on to consider in further detail we have fully accepted the Respondents’ explanations for the Claimant’s treatment and consider that the evidence does not support any contention that the Claimant was treated less favourably on racial grounds, was subject to victimisation or to unjustified discipline in those respects. We go on to analyse the remaining matters in further detail. We also note at this stage that we have accepted that a number of the complaints raised by the Claimant did amount to protected acts.”

25. Thus, those matters against which there is no appeal were decided against the Claimant. What remained were what the Tribunal held to be matters going to the core of the dispute and the Tribunal said this:

“513. The remaining matters go to the core of this dispute. On 5 June 2008 the Claimant sent an e-mail to Ms Crighton, copied to National Officers, in which she alleged that the London Respondents were guilty of unconscious race discrimination. We do not accept that these allegations were true. There is a question over whether they were made in good faith. The most specific allegations in the e-mail were made against Mr Sampson. There was no real explanation of why his actions were suggested constitute race discrimination. There was a lack of clarity as to the specific allegations against Ms Crighton. There were no real allegations against Ms O’Toole. However, in the light of our following analysis, we did not consider it necessary to come to a finalised view on that issue. What is clear is that the London Respondents reacted directly to the suggestion that they were guilty of unconscious race discrimination by instigating complaints against the Claimant and thereafter refused to meet with her. They were outraged by the allegations that had been made by the Claimant and considered them to be false and to have been made in bad faith. That was why they were not prepared to meet with the Claimant.”

26. This is the source of Mr Sykes’ principal criticism of the Tribunal in that it did not make a finding and, if it did make a finding, it had no business making a finding about central issues of the defence of the Respondents relating to the Claimant’s lack of truth and lack of good faith.

27. As a matter of construction that cannot be right, because immediately following the passage we have cited above, there appears this:

“517. We accept that the decision to suspend the Section Committee arose from the complaint that the Claimant had made in relation to her suspension from Branch Office. She alleged that this was victimisation and/or unjustifiable discipline in her email to the members and the letter from her solicitors to the FDA. However, we consider that these allegations were false and made in bad faith. The Claimant had on two occasions specifically suggested that Branch Officers should be suspended. When the Section Committee acted in accordance with her suggestion she responded by suggesting that they had acted unlawfully and might face legal action. In so doing she made false allegations and was not acting in good faith. Furthermore, the real reason for the suspension of the Section Committee was the breakdown in trust and confidence that arose from the Claimant’s change of position.”

28. This passage is the natural follow-on to what it described as the remaining issues. There is a plain finding against the Claimant on the two principal matters which constitute the Respondents’ defence. Mr Sykes takes an old-fashioned pleading point. Falsity and bad faith were not in the pleadings. Mr Sethi accepts that. However, he submits that when matters arise during the course of a Tribunal hearing, which do demonstrate matters which might constitute grounds for asserting falsity or bad faith, these should be dealt with. To that end, Mr Sethi has the advantage over Mr Sykes, he having been there and having produced a matrix from Employment Judge Tayler, handed to the parties, headed this: “Areas upon which the Parties may wish to Assist in Submission”.

29. This occurred long before submissions were made by counsel in the case. There are clearly questions as to bad faith and the Tribunal has made findings about that. Paragraph 430 indicates the Tribunal’s clear appreciation that to constitute a defence, the material must be false and made in bad faith, and there are findings of fact about this. This is an unusually fact-sensitive exercise by a Tribunal looking at both of those matters.

30. It cannot be said that there was no evidence for it do this. The matter was live before it, albeit not in a pleading. The parties were represented and knew it was coming, and were given the opportunity to make submissions on it, presumably because the matter had been ventilated in evidence. Therefore we reject the contention that the Tribunal erred in making a decision upon falsity and bad faith, and in the decision it made in any event. There was material upon which it could form that Judgment. It is a question of fact for it.

Agency

31. The next issue is whether the officers were agents of FDA. No criticism is made of the self-direction which we have summarised above. The application of that direction is contained in paragraph 514, where the Tribunal said this:

“514. The first question that arises is that of whether in making those complaints the London Respondents were acting as agents for the FDA. We do not consider that they were. The allegations they made were personal. They refused to meet with the Claimant in their personal capacities. They were acting on their own behalves, not that of the Union. In such circumstances the union cannot be liable, nor can the individuals. It was not an act of disciplining by the Union.”

32. With respect to Mr Sykes, that is again a straightforward finding of fact. Why were they doing what they were doing? Who were they doing it for? And the answer the Tribunal gives is one open to it.

Time

33. The third substantive matter raised on appeal relates to the out of time point. The Tribunal, it is accepted, addressed itself correctly in the passages we have cited from its chapter on the law as to time, under the different provisions of the statutes. The Tribunal’s application of it occurs in paragraph 515 to the following effect:

“515. In any event, the discrimination complaint is out of time. We would not consider that it would be just and equitable to extend time. Although we do not accept that there is any valid reason to review our conclusion that it did not formally form part of the Claimant’s evidence in chief, we were prepared to accept the statement produced by the Claimant for the PHR as evidence. In it she contends that it was not until she read the letter from Mr Baume on 15 September 2010 that she realised that the London Respondents had refused the attempts at reaching a mediate solution. She accepts that she could then have submitted her complaint. She did not do so until 8 December 2008, nearly three months later; over six months after her email of 5 June 2010. The Claimant contends that she did not do so in an attempt to allow the internal processes to take place and that it was not until she was informed that she was not separately appointed as a London Branch Representative that the final straw was applied. We do not accept it as a “final straw”, being no more than a statement of the formal position. We do not accept that the Claimant has established sufficient reason for her delay that would make it just and equitable to extend time. The Claimant was well aware of her complaint and of the possibility of bringing Employment Tribunal complaints of victimisation. To have this matter hanging over them has been a substantial detriment to the London Respondents. These events took place long ago. We would not have considered it just and equitable to extend time. It clearly would have been reasonably practicable to submit the unjustifiable discipline claim within time.

516. If we had accepted that, despite the protagonist’s holidays and the limited scope for interaction during the period before the takeover of the Branch, that there was significant exclusion of the Claimant after her email of 5 June 2010 that amounted to a detriment we would have considered that this constituted an omission commencing from 5 June 2010 and that any race discrimination complaint in that regard was out of time. It would not have been just and equitable to consider it for the reasons set out above, particularly as the Claimant repeatedly suggested immediately thereafter that she believed that she was being excluded. It would have been reasonably practical to submit the unjustifiable discipline claim within time.”

34. In those circumstances, these claims were truly out of time and there can be no criticism of the Tribunal’s failure to extend time, either under the not reasonably practicable jurisdiction or the just and equitable jurisdiction. In our judgment those were plainly matters of fact for it. In respect of those three matters of law, said to arise in this Judgment, we accept in full the written submissions of Mr Sethi.

35. There is no basis for alleging perversity in this case, and its bedfellow, lack of reasons, so frequently put together by advocates before us and so frequently running into the sand. It is very difficult to see how a complaint could get through of lack of reasons when they consist of 90 pages. There is no deficiency here. As to perversity, the Tribunal had material upon which it could decide the disputes between them, and it has to be said that there is a very substantial number of the disputes resolved against the Claimant where, by implication on the lack of an appeal, it did not go wrong.

36. We hold it did not go wrong on the issues which are live before us, and these matters will not go forward. But, of course, it will be open to Mr Sykes if he succeeds at the full hearing to make submissions that this Judgment as a whole be set aside.

Further argument

37. In answer to my question of both advocates, whether there was anything missing from the Judgment necessary for it, Mr Sykes has begun to re-open the case and, on being reminded how narrow is the window available to advocates on this particular part of the case, he confined his submissions to the following: he contended that we had not addressed what he describes as the Barneck point, the settled law. Indeed it is settled law, as the Court of Appeal upheld my Judgment in Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964, and there is, in the Barneck case, reference to my own Judgment in Lucas v Chichester Diocesan Housing Association Ltd [2005] UKEAT 0713/04/0702.

38. As we pointed out, paragraph 430 is a self-direction by the Tribunal in the clearest, self-emphasised terms. As to time, that matter is dealt with in the Judgment. We accept Mr Sethi’s submissions on it.

39. Inadequate reasons? Mr Sykes began to address us on this matter but, as we thought we had made clear, this is so often a makeweight in appeals. This is a comprehensive, meticulous Judgment of the Judge on behalf of the three of them, and we agree with HHJ Clark’s depiction of it as such.

40. It is said that the material available to the full hearing should be wider than at present. Case management directions have been given in this case. There will be no further directions to the Regional Employment Judge, to the President of the Employment Tribunals or to Judge Tayler. The matters presently extant will be before the full hearing.

Appeal

41. An application has been made for permission to appeal by Mr Sykes. It covers the same material as was taken on appeal. We can dismiss the application in summary terms by reference to our Judgment above. There was a correct self-direction in relation to bad faith. The Tribunal was entitled to make findings of fact as to the running of time. The reasons are adequate and it is not wrong to refuse to escalate further the questions to be sought to be answered by the Regional Employment Judge.

42. We do not think that we would be assisting the Claimant by giving her permission to appeal. Indeed, as part of Mr Sykes’ submissions, one might have thought he had lost whereas in fact he is going forward on his apparent bias allegations. As the Court of Appeal customarily does, we give warnings to those who are going to the Court of Appeal about costs, where of course Mr Sykes would not have a right of audience, although of course the Claimant could represent herself. Mummery LJ frequently makes clear, there are grave issues to be considered in the grant of permission and, like Sedley LJ, we consider we would be setting the Claimant on a highway to nowhere.

Further steps