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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> The Partners of Haxby Practice v Collen (Contract of Employment : Whether established) (Rev 1) [2012] UKEAT 0120_12_2911 (29 November 2012)
URL: http://www.bailii.org/uk/cases/UKEAT/2012/0120_12_2911.html
Cite as: [2012] UKEAT 0120_12_2911, [2012] UKEAT 120_12_2911
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 29 November 2012
Before
THE HONOURABLE MR JUSTICE UNDERHILL
(SITTING ALONE)
THE PARTNERS OF HAXBY PRACTICE APPELLANTS
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING – APPELLANT ONLY
REVISED
APPEARANCES
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(of Counsel) Instructed by: Lyons Davidson Solicitors St Martins House Britannia Street Leeds LS1 2DZ |
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SUMMARY
CONTRACT OF EMPLOYMENT – Whether established
PRACTICE AND PROCEDURE – Reasons
PRACTICE AND PROCEDURE – Bias
Claimant offered job in telephone conversation at a salary of £22,427 – Subsequent confirmatory exchange of letters mistakenly identifies salary as £30,762 - Claimant found by Tribunal honestly not to have appreciated that the higher figure was a mistake – Claim depends on whether binding contract made to employ Claimant at £30,762.
Tribunal finds for Claimant but gives different reasons for its decision in its oral and its written Reasons – Judge’s conduct during the hearing perceived by employers as unfair.
HELD, dismissing appeal:
(1) Although the details of the Tribunal’s reasoning (in both the oral and the written Reasons) could be criticised, its substantive decision was unarguably right because (a) on its findings the parties had agreed that they would not be bound until there had been a written offer and acceptance and/or (b), even if a binding agreement had been made in the telephone conversation, it had been superseded by the exchange of letters. The position would have been different if the Claimant had accepted the written offer knowing or believing it to have been made in error, but the Tribunal had found that that was not the case.
(2) The divergence between the reasoning in the oral and written Reason did not constitute an error of law – Observations on the status of oral reasons in cases where written Reasons have been supplied.
(3) The conduct of the Judge was not such as to vitiate the fairness of the proceedings.
THE HONOURABLE MR JUSTICE UNDERHILL
INTRODUCTION
1. This case has come before me as the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Leeds, comprising Employment Judge Whittaker sitting alone. Only the Appellants were invited to attend: the Claimant was asked to make concise written submissions but she has not done so. The Appellants have been represented by Ms Nicoleta Alistari of counsel, who also appeared below. Although in the end I have found no reason to allow the appeal to proceed to a full hearing, some of the points to which it gave rise required careful attention; and therefore, unusually for a preliminary hearing, I reserved my decision.
2. The hearing before the Judge was on 24 August 2011. The Claimant, who appeared in person, initially had a variety of claims, but with the encouragement of the Judge she abandoned her claims of unfair dismissal and disability discrimination. At the conclusion of the hearing the Judge announced his decision. He awarded the Claimant the net equivalent of £2,359.50 by way of damages for wrongful dismissal; a small sum (the exact amount is unclear to me) by way of unlawful deductions; and £760 pursuant to section 38 of the Employment Act 2002. The Judge gave oral reasons. I have Ms Alistari’s note of those reasons. I shall return in due course to the question of their status.
3. The Appellants asked for written Reasons. The Judge initially demurred, but he subsequently relented (I return to this episode below); and Reasons were sent to the parties on 17 November, some three months later. Rather oddly, the written record of the Judgment does not seem to have been sent until that date either: that is irregular, but nothing turns on this. The Reasons are very fully and carefully expressed.
4. The facts underlying the claim can be summarised as follows:
(1) The Appellants are a large GP partnership. In summer 2010 they advertised for a Practice Nurse. The advertisement did not specify the salary. The Claimant applied and was interviewed on 16 July. Again, although there was some discussion of grade scales, no specific salary was identified.
(2) A few days later, Mrs Smith, the Appellants’ Head of Nursing, telephoned the Claimant to offer her the job. She accepted. Various points were discussed, including the start-date and the need for the Claimant to undergo some re-training (she had not worked as a Practice Nurse for many years). The Judge found that Mrs Smith did mention (though without “emphasis”) the salary which the Appellants intended to offer, namely £22,427 p.a.; but he also found that that figure did not “register with” the Claimant because she was so euphoric at being told that she had got the job and that she had said nothing to indicate specific acceptance of the figure. Mrs Smith told the Claimant that she would be receiving a letter in which, as the Judge put it, “the terms of the job offer would be confirmed to her”.
(3) The promised letter is dated 28 July 2010. It was signed by Mrs Barraclough, the Appellants’ HR Manager. It started:
“We were delighted to meet you at interview on 16 July and would like to make you an offer of Practice Nurse with Haxby Group.
Following the satisfactory completion of the pre-employment checks I can confirm that your pay scale will be fixed at £30,762 gross pro rata and that your working hours will be 35 per week. Your start date will be Monday 13 September.”
The letter went on to say that references would be obtained and that the offer was subject to various regulatory checks. The letter concluded:
“I will be sending you an induction programme shortly along with your stated hours of work. Meanwhile, I will be grateful if you could complete the personnel information document and return with your written letter of acceptance as soon as possible…”
(4) It will be noted that the specified salary - £30,762 – was much greater than the figure mentioned in the telephone conversation with Mrs Smith. The start-date was also wrong: the Claimant and Mrs Smith had agreed that she would start on 1 September. These were mistakes made by Mrs Barraclough in drafting the letter. The error about the start-date seems to have originated in a confusion about the Claimant’s holiday arrangements. As to the error about the salary, the written Reasons contain no finding by the Judge about how this occurred; but in his oral reasons, as noted by counsel, he referred to a “cut-and-paste mistake”.
(5) When she read the letter the Claimant noticed the mistake about the start-date. She did not, however, appreciate that there was any mistake about the salary because, as the Judge found, she had not taken in the figure mentioned in the telephone conversation. The Judge found, at para. 16 (e) of the Reasons that:
“… she was pleasantly surprised by the salary which was being offered but it was not at such a level that the Claimant had any reason to consider that it was not accurate.”
He went on to find that she believed that the salary fell within the range of the grades appropriate to a job which carried significant responsibility.
(6) The Claimant immediately queried with Mrs Barraclough the mistake about the start-date, and apparently on the same day a revised version of the letter was issued giving the date of 1 September. Mrs Barraclough did not notice, and accordingly did not correct, the error about the salary.
(7) The Claimant wrote to the Appellants on 30 July 2010 accepting the offer.
(8) When the Claimant came into work on her first day – that is, 1 September 2010 – Mrs Barraclough saw her straightaway and told her that the salary offered had been a mistake. The parties tried to reach a compromise, but they were not successful and the Claimant’s employment terminated on 3 October. It was the Appellants’ case that the Claimant had resigned; but she contended, and the Judge found, that she had been dismissed. She was not given any payment in lieu of notice. Her claim for damages represents pay, at the annual rate of £30,762, for the period of one month: no notice period had in fact been agreed (although the figure of one month had been discussed during the abortive attempts to resolve the problem), but the Judge found that one month was a reasonable notice period in the circumstances. The Claimant was paid for the three days that she had worked, but only at the annual rate of £22,427: her claim for deductions represents the difference between that and a rate based on £30,762. The Tribunal noted that Mr McEvoy, the Appellants’ Managing Partner, had written a letter to the Claimant accusing her of being unreasonable and “disingenuous” and saying that he was bemused by her behaviour. The letter is characterised by the Judge as “unnecessarily aggressive”. I have not seen the letter but it certainly seems that Mr McEvoy failed to acknowledge that the cause of the immediate problem was a mistake by one of the Appellants’ own staff.
5. Both parties accepted that a binding contract of employment had been entered into. The essence of the dispute between them was whether the contractual rate of pay was £22,427 p.a., as mentioned in the original conversation between the Claimant and Mrs Smith, or £30,762 p.a., as specified in the exchange of correspondence. The Judge found that it was the latter. The Appellants’ grounds of appeal challenge both the substance of his decision and certain procedural aspects of the hearing and its aftermath. I will take the substantive challenge first.
THE CONTRACTUAL RATE OF PAY
6. The starting-point is whether a contract was concluded in the telephone conversation between the Claimant and Mrs Smith. The Judge held that it was not, but he appears to have given different reasons for that conclusion in his oral and his written Reasons. I take them in turn. I must emphasise, in fairness to the Judge, that, although Ms Alistari’s note of the oral Reasons has the appearance of being full and accurately taken, it has not been approved by him; and there is in any event a question about the legitimacy of referring to it at all. But it is necessary that I do so de bene esse in order to address the issues raised by the appeal.
7. In his oral reasons the Judge, referring to the conversation, said (according to Ms Alistari’s note):
“I find as a fact that the Claimant was told that she was offered a job at the rate of £22,427. Due to her euphoric state of mind, the Claimant did not realise what the rate of pay was. I therefore do not find that there was a valid acceptance. I will return to this in due course.”
He then went on to refer to the exchange of correspondence which followed and to the discussions which took place between 1 and 3 September 2010. Having found that the Claimant was dismissed, he continued (again, according to Ms Alistari’s note):
“My conclusion is that there was no binding contract as a result of that telephone call. I don’t find the Claimant accepted that telephone offer. Even if there was a verbal acceptance, that would be superseded by the written offer. To that written offer, the Claimant sent a written acceptance.”
The Judge there makes two points – first, that no contract was concluded in the telephone conversation because the Claimant did not accept Mrs Smith’s offer (i.e. because, as previously found, she had not taken in the figure of £22,427); and, secondly, that any agreement that there may have been was in any event superseded by the exchange of correspondence. I will return to the second point presently, since it is not in fact concerned with the effect of the conversation at the time that it occurred. So far as the first point is concerned, I must agree with Ms Alistari’s submission that the Judge’s reasoning (if accurately recorded) is wrong. It is trite law that the test of whether there have been an effective offer and acceptance is objective; and if an offer is made in plain terms, such that the ordinary person would understand it, the fact that the offeree for some idiosyncratic reason fails to understand what has been said does not prevent a contract from arising. On the Judge’s findings, Mrs Smith had offered the Claimant the job and named the salary; and if the Claimant accepted the job, as he found she did, she must be taken to have accepted the salary too.
8. I turn to the Judge’s written Reasons. The relevant paragraph is para. 20. This is rather lengthy, but I should set it out in full:
“The Tribunal therefore considered whether or not a contract had been formed between the Respondent and the Claimant during the course of the telephone call between the Claimant and Ms Smith prior to the issue of the letters by Ms Barraclough on 28 July 2010. The Tribunal was not persuaded that there was a binding offer and acceptance and formation of a contract during the course of that telephone call. The Tribunal found, consistent with the guidance contained in Chitty on Contracts Volume I – General Principles that there had simply been incomplete agreement reached between Ms Smith and the Claimant during the course of that telephone call. There had been an agreement that the Claimant would go to work for the Respondent in the capacity of Practice Nurse. The parties had therefore reached agreement on that essential matter or principle but it was clear to the Tribunal that other important points remained unsettled and so that the agreement was incomplete. Ms Smith had made it clear that the Claimant would subsequently receive a written offer of employment and indeed that is exactly what the Claimant received in the letter dated 28 July. The Tribunal has already referred to the specific wording of those two letters in which the word “offer” is repeated. The incomplete agreement which was reached between the Claimant and Ms Smith left unsettled extremely important issues which included the main terms of the contract of employment required to be given by an employer to an employee pursuant to Section 1 of the Employment Rights Act 1996. There was no discussion of holidays, hours of work, sick pay, pension, disciplinary or grievance procedures and in particular and most importantly from the point of view of the claims of the Claimant no discussion whatsoever about notice. The essential core terms of the contract of employment therefore were left aside for future discussion and completion and indeed that was then generated and completed by the letters dated 28 July 2010. Only then, in accordance with the specific instructions of the HR Manager, was a binding contract completed when, in accordance with the instructions contained and indeed emphasised by Ms Barraclough in the letters of 28 July did the Claimant write, as instructed, to accept specifically the offer which was being made to her. The offer which was made to her was employment at the salary of £30,762. That was the offer which the Claimant accepted. Only then was a binding contract between the Respondent and the Claimant formed and the Claimant was thereafter entitled to rely upon the terms of that contract of employment and to enforce them when her employment was terminated. There was therefore no contract formed between Ms Smith and the Claimant during their telephone call as many fundamental matters remained to be resolved and the agreement, such as it was, was incomplete and specific reference was made by Ms Smith to the fact that the outstanding issues and indeed the fundamental issues of a contract of employment would be addressed in subsequent correspondence and that indeed turned out to be exactly what happened. There was therefore no contract in force until those points were resolved. The agreement was incomplete because further agreement was required. Terms of any contract were left aside to be agreed between the parties in due course. There was never any intention on the part of the Respondent, as shown by the evidence of Ms Smith in reference to subsequent correspondence which would be sent to the Claimant by the HR Manager, to conclude an agreement or contract during the course of that telephone call. The purpose of the telephone call was to give the good news to the Claimant about her being offered the job and that was the extent of the agreement which was reached between the parties, namely that the Claimant would go to work for the Respondent but the terms of that employment still fell to be negotiated and agreed between the date of the telephone call and the start date of 1 September which was at least one month or more away.”
9. I have to say that I cannot accept that reasoning either. It is, in the first place, factually incorrect to say that the “essential” terms which were not discussed in the telephone conversation between the Claimant and Mrs Smith were settled in the subsequent exchange of correspondence. As appears from para. 4 (3) above, Mrs Barraclough’s letter of 28 July 2010 does not contain most of the missing matters identified by the Judge. It does specify the number of hours to be worked per week, but it does not say anything about (to pick up the Judge’s list of omissions) “holidays, … sick pay, pension, disciplinary or grievance procedures … [or] … notice”. Thus if the putative agreement was incomplete following the telephone conversation that remained the case up to the moment that the Claimant started work. But that proves too much: no-one is suggesting that there was never any contract of employment. It is true that nothing had been agreed, as at the start-date, apart from the nature of the job, the salary (without prejudice to what the agreed figure in fact was) and the working hours; but that is not an uncommon situation, and where it arises a court or tribunal does not, save in the most extreme case, find that there is no contract but, rather, does its best to fill the gaps by a generous process of implication. Accordingly, I do not find the Judge’s reasoning based on “incomplete agreement” to be convincing.
10. However, it does not follow from my disapproval of his particular reasoning (whichever Reasons are looked at) that the Judge was wrong to find that no contract was concluded in the conversation between the Claimant and Mrs Smith. He found, as I have already noted, that Mrs Smith said in the course of that conversation that the Claimant would be sent a letter “confirming the terms of the job offer”. In my judgment the natural inference to be drawn from that is that she did not intend that a binding contract had been made at that point and that that would not occur until the offer had been confirmed in writing and accepted; and the Claimant did not demur. Ms Alistari reminded me that a binding contract can be made entirely orally. I of course accept that; but the evidence indicates that that was not the understanding in this particular case. That is unsurprising. Depending on the context, a prospective employer and employee will often require “something in writing” before either is bound. The Judge himself said, at para. 14 of the Reasons:
“The Tribunal accepted that it was perfectly reasonable and in accordance with the usual arrangements made between an employer and a new employee that the terms of a job offer would subsequently be confirmed in writing for specific acknowledgment and acceptance by the prospective employee.”
Although he did not explicitly draw on that observation to reach the same conclusion as I have done, at least the germ of the reasoning which I favour is to be found in the later parts of para. 20 of the Reasons.
11. I therefore agree with the Judge’s conclusion that no binding contract of employment was concluded in the telephone conversation between the Claimant and Mrs Smith, even though I respectfully differ from him as to the route by which he reached that conclusion. But even if he and I were both wrong about that, I can see no answer (subject to the point considered at para. 12 below) to the second of the points made by the Judge in his oral reasons as set out at para. 6 above, namely that any contract made orally on the earlier occasion was superseded by the exchange of correspondence which followed. It is axiomatic that where parties have reached an agreement orally but have agreed subsequently to record their agreement in writing, it is the latter, written, agreement which must prevail in the event of any inconsistency. Again, although the Judge does not explicitly make this point in his written Reasons, the germ of it can, I think, be found in the later part of para. 20.
12. That conclusion is subject to an important caveat. If the Claimant knew that the salary figure given in the letter of 28 July was a mistake on the part of the Appellants, she would not, on ordinary equitable principles, be entitled to treat it as binding. I was not referred to any authorities in this connection, but it is plainly correct: see Chitty on Contracts (31st ed.), vol. 1 paras. 5-122-129. (There may be an issue whether the position would be that no contract came into being at all or whether it did but was voidable or subject to rectification; but that does not matter for present purposes.) But the Judge found that that was not the case. I have already referred to one passage where he made it clear that the Claimant had no reason to believe, and did not believe, that the salary figure offered in the letter was wrong: see para. 4 (5) above. But he repeated the finding at greater length at para. 21 of the Reasons, which – for reasons which will appear – I should set out in full:
“The Tribunal equally considered whether the Claimant should have known when she received the letters on 28 July that the offer did not express the true terms of the contract or the true intentions of the Respondent. The Tribunal found that there was no such reason for the Claimant to conclude that a mistake had been made or even to suspect that mistake had been made. The letter sent by Ms Barraclough made no reference whatsoever to any previous verbal discussion between Ms Smith and the Claimant. No specific salary for the post had been included in the advertisement. It was accepted by everyone that during the course of the interview no specific salary had ever been specified to the Claimant. It had always been the case that the salary would be a variable salary and that a substantial variety of different factors would be considered by the Respondent in order to ultimately determine the salary which would be offered to the successful candidate, be it the Claimant or anyone else. The Tribunal wishes to record that Ms Alistari specifically confirmed in her closing submissions that it was not being argued that the Claimant was disingenuous and neither was it being argued that the Claimant had acted dishonestly. The Tribunal found therefore that the terms that were being offered to the Claimant were not unusually beneficial and were not outside the reasonable range of expectations which the Claimant had in connection with the job which had been offered to her. She was never notified that a mistake had been made until a contract had been concluded between the parties. Offers had been made to the Claimant in letters dated 28 July. The Claimant had been asked to accept those offers. She had done so in writing. She had then offered consideration for that contract by turning up for work and indeed working for three days until that contract was terminated by Mr McEvoy on 3 September 2010. The basic principles of contract law therefore applied to the circumstances of this case.”
13. I therefore find that on the basis of the Judge’s findings of fact his conclusion in favour of the Claimant was the only one open to him, even if the specific reasoning in the written Reasons (and indeed the oral reasons) can be criticised.
THE OTHER GROUNDS
Ground 1: Divergence between the Oral and Written Reasons
14. Ground 1 of the Notice of Appeal is that the reasons given by the Judge for his decision in the eventual written Reasons differed from the oral reasons and that that amounted to an error of law: any change could only have been effected via the review procedure under rules 34-36 of the Employment Tribunal Rules of Procedure.
15. It will be apparent from what I have already said that I agree that the Judge’s reasoning did differ as between the oral reasons, at least as recorded by Ms Alistari, and the written Reasons. But I do not accept that this is a ground for allowing the appeal. The short point is that if, as I have held, the Judge’s conclusion was unquestionably right it should be upheld whatever the errors in either set of reasons. But the point is one which I have seen raised in other appeals, and it may be useful if I make clear my view that a divergence between a Tribunal’s oral and written reasons would never, without more, give rise to a valid ground of appeal. I set out below what I consider to be the status of oral reasons in circumstances where written Reasons are subsequently requested and supplied.
16. I accept that normally any written Reasons supplied pursuant to rule 30 (3) will closely correspond to the oral reasons given at the conclusion of the hearing. The usual practice is that the oral reasons are recorded on tape and that if a request for written Reasons is made a transcript will be provided to the Judge and will constitute, in effect, the first draft of the written Reasons. There will almost always, however, be some degree of editing. Often that will involve no more than “topping and tailing” and/or correcting infelicities of expression. But the editing process may, depending on the circumstances of the case and no doubt on the temperament of the Judge, be more substantial. Even then, the essential reasoning would normally be retained. But every now and then there will be cases where the process of revision is so extensive that, whether the Judge appreciates it or not, the reasoning expressed in support of the conclusion differs in substance from the oral reasoning: sometimes the difference may be patent, but sometimes it may only be apparent on a careful analysis. There is no shame in this. Giving oral reasons is in principle a healthy practice, which is economical of resources (including the invaluable resource of time) and helpful to the parties; but the Judge will necessarily have less time to prepare what is said than if reasons are reserved, and it is unsurprising that the process of producing written Reasons will occasionally modify his or her detailed thinking.
17. I do not believe that such a departure from the initially expressed reasoning involves any error of law. The scheme of the Rules seems to me to be that where written Reasons are supplied they constitute the sole authoritative statement of the Tribunal’s reasons and the oral reasons are superseded. It would be unfortunate if the Tribunal were irrevocably committed to its first thoughts as to the route by which the result is most appropriately reached; and I can see no reason in law why that should be so. What ultimately matters is not that there should be an accurate record of the thought-processes by which, as a matter of history, the Tribunal reached its conclusion but, rather, that in the definitive reasons provided for by the Rules the parties and others (including this Tribunal) should have the benefit of its most considered justification for the decision which it has reached. (I expressed somewhat similar views in Abbey National Plc v Chagger [2009] ICR 624, at para. 22 (see p. 634).) There is no question of any changes having to be made by way of a review under rules 34-36. The purpose of such a review is to permit a tribunal, in the circumstances specified, to change its actual decision. That is not what we are concerned with here.
18. Although this seems to me the right analysis as a matter of principle, the outcome is also desirable as a matter of policy. In the first place, it would put Judges and (where relevant) members in a very awkward position if they were obliged to continue to justify a decision on the basis of reasoning which they had come conscientiously to believe was wrong. Further, if parties were enabled to advance an appeal on the basis of supposed divergences between a tribunal’s oral reasons and its subsequent written Reasons it would be all too easy for appellants – not necessarily in bad faith – to raise such grounds given the absence of any authoritative record of the oral judgment. Such disputes could only be resolved by obtaining a transcript of the oral reasons, which would undermine the entire scheme of rule 30. They would also constitute an unproductive and lawyer-driven diversion from the only point which ought to matter, namely whether the Tribunal’s definitive statement of its reasoning is sustainable in law.
19. The last point is illustrated by what happened in the present case. The Appellants’ solicitors, in support of this ground of appeal, wrote to the Tribunal asking for a transcript of the oral reasons. After some confusion into which I need not go, the Tribunal asked for an explanation of why the transcript was needed, in the light of the fact that written Reasons had been promulgated. That was an entirely appropriate enquiry: it follows from what I have said above that the Tribunal was under no obligation to provide a transcript of the oral reasons simply for the purpose of verifying or examining an allegation that they differed from the written Reasons. In the event, the discussion ran into the sand because the Tribunal then informed the Appellants’ solicitors that “although the Judgment was recorded, no oral reasons were recorded”. I should say that it was bad practice that the reasons were not recorded, if that is indeed really what happened. Oral reasons ought always to be recorded, primarily to assist the Judge in drafting the written Reasons if sought but also in case legitimate queries arise as to what was said (as they may - see para. 20 (2) below). It is particularly puzzling that the oral reasons should not have been recorded when the judgment itself was. (It may be that the failure to record the oral reasons, thus depriving the Judge of his draft-cum-aide-memoire, explains the unusual delay between his decision and the provision of written Reasons - and indeed also the apparent divergence in the detailed reasoning.) But none of that gives the Appellants any cause for complaint in the present case.
20. I should add four points by way of clarification:
(1) My observations above are concerned only with changes in the reasoning by which the Tribunal reaches its decision, and not with changes in the decision itself, which can indeed only be achieved by use of the review mechanism (or, occasionally, by way of “recall” – see CK Heating Limited v Doro [2010] ICR 1449). (The issue of changes in the actual decision was recently considered by the Court of Appeal in the context of County Court proceedings in L-B (Children) [2012] EWCA Civ 984, though not all of what was there said may be directly applicable to Employment Tribunal procedure.)
(2) There may be circumstances where, for particular reasons peculiar to the case, it is necessary to look at what a Judge said when giving oral reasons, notwithstanding that written Reasons have subsequently been produced. One example sometimes encountered is where things said in the oral reasons are said to show actual or apparent bias; another is where they may elucidate some ambiguity in the written Reasons.
(3) Where an Employment Judge has sat with lay members, I understand that it is not normal practice to seek their approval of any written Reasons subsequently supplied, provided the Judge is satisfied that they substantially reflect the reasons given orally. But in the case of any significant divergence in the reasoning of the kind discussed above, the members’ approval should always be obtained.
(4) If the Tribunal wishes to change its reasoning, the “new” reasons should not of course involve points that were not argued before it.
Grounds 2-4
21. Ground 2 in the Notice of Appeal is that the Judge gave Ms Alistari no notice that he was considering deciding the case on the basis of “incomplete agreement”. This ground becomes academic in the light of my conclusions on the substantive issue.
22. Grounds 3 and 4 are concerned with the substantive issues discussed at paras. 6-12 above, and I need say no more about them.
Ground 5: Bias
23. Ground 5 makes allegations of apparent bias against the Judge. I need to consider these in some detail.
24. I should record first that, independently of any points pleaded in this appeal, Mr McEvoy, who was a witness and present at the hearing throughout, believed that the Judge had not conducted it fairly. He wrote a letter of complaint to the Regional Employment Judge (“the REJ”). The Claimant personally wrote to the REJ in response. The REJ, having obtained the Judge’s comments, sent a response to Mr McEvoy rejecting his complaint save in one particular respect. I have not seen any of these documents, and I know of their existence only from the Judge’s letter to which I refer below. It is relevant, however, to note that the Judge formed a poor view of Mr McEvoy as a witness, describing him as “aggressive and confrontational” when cross-examined.
25. The Appellants’ original Grounds of Appeal, signed by Ms Alistari, made complaints about the conduct of the hearing which I can summarise as follows:
(1) Ground 5 is introduced as follows:
“The tribunal erred in law by issuing a forceful costs warning to the Appellant’s Counsel for pursuing a legitimate line of questioning in the cross-examination of the Respondent and thus putting undue pressure on the Appellant to abandon a valid point, which it sought to rely upon in the closing submissions.”
That is then particularised in sub-paras. 5.1-5.3. In essence, the line of questioning referred to related to whether it was “disingenuous” of the Claimant to accept the offer of £30,762 when she must have known that it was a mistake.
(2) Ground 6 pleads that the Judge had “acted with apparent bias” in four identified respects, namely:
(a) rejecting one of Ms Alistari’s submissions on the basis that she “should have learnt this in her first year at law school”;
(b) “informing [the Claimant] that she did not need to put her case to the Appellant’s witnesses and subsequently taking over the questioning of the Appellant’s witnesses in an aggressive and/or dismissive manner”;
(c) putting Ms Alistari under pressure to abandon the allegation of disingenuousness, as per (1) above;
(d) refusing the Appellants’ oral application at the conclusion of the hearing for written Reasons and requiring such an application to be made in writing after they had had time to reflect, because he considered the oral application to be “a knee-jerk reaction to an unfavourable decision”.
26. The Appellants were, in accordance with the Practice Direction, asked to supply a supporting affidavit. Mr McEvoy swore an affidavit dated 8 March 2012. Regrettably, he does not seem to have been given guidance as to what was required, since his affidavit largely consists of allegations about the Judge which are not pleaded in the Grounds and fails to deal with most of the pleaded points. In brief summary, Mr McEvoy says that the Judge displayed from the outset a prejudice in favour of the Claimant, was impatient and critical of the amount of documentary and witness evidence produced and was repeatedly curt and indeed rude to Ms Alistari and himself.
27. The Judge gave his response to that affidavit, and to the Grounds of Appeal, in a letter to this Tribunal dated 27 April 2012. His rebuttal is very full. As regards those allegations made by Mr McEvoy which do not appear in the Grounds of Appeal, I need only say that these are strongly denied: in some cases the Judge accepts that a remark or other intervention complained of by Mr McEvoy was made but he denies that it was unfair or inappropriate. As for the Grounds of Appeal, he does not confine his comments to grounds 5 and 6, which pertain to his conduct of the hearing and about which his observations were sought; but volunteers comments also on grounds 1-4, which concern the correctness of his reasoning and the divergence between the written and the oral reasons. The latter comments, for which, as he acknowledges, he had not been asked, should not have been advanced: tribunals are not invited to defend their legal reasoning, which must be judged on the basis only of how it is expressed in their formal Reasons. As for grounds 5 and 6, I return to his answers below.
28. Ms Alistari attached to her skeleton argument draft Amended Grounds of Appeal, which brought together aspects of the previous grounds 5 and 6 under a single ground 5. This contends that the Judge “acted with apparent bias against the Respondent at the hearing”. It can be summarised as follows:
(a) The Judge is said to have “issu[ed] a forceful costs order [this is obviously a slip for “warning”] against R for pursuing a legitimate line of cross-examination” – i.e. in relation to whether the Claimant had acted disingenuously: this is thus a re-casting of the previous grounds 5 and 6 (c).
(b) The previous ground 6 (b) is repeated.
(c) The previous ground 6 (d) is repeated.
Head (a) is then particularised in five sub-paragraphs numbered 5.1-5.5, which substantially correspond to the earlier sub-paras. 5.1-5.3: I set them out below. I indicated to Ms Alistari that I was prepared to proceed by reference to these amended grounds. I take them in turn.
29. As to (a), it is important first to establish what happened. Ms Alistari acknowledged in her oral submissions that it was unfortunate that this incident was not covered by Mr McEvoy’s affidavit. On the other hand, it concerns a cross-examination which she was conducting, and, although in some circumstances delicate questions might arise as to her being both a witness and an advocate, I do not think I need altogether ignore the account in the grounds of appeal simply because it must to a greater or lesser extent derive from her own recollection. Further, I have the Judge’s own account in the Reasons. The material before me can be summarised as follows:
(1) At para. 11 of the Reasons the Judge says this:
“During the course of cross-examination of the Claimant, Ms Alistari alleged that the Claimant had been “dishonest” when she accepted the written offer of employment at a salary of £30,762. It was put to her, and the Tribunal carefully noted the nature of the question and the tone in which it was presented, that the Respondent had never had any intention of offering a salary at that level and that the Claimant knew that all along. Furthermore it was put to the Claimant that she had deliberately kept quiet and that she was fully aware that she had accepted the job at the salary of £22,475 and that she had deliberately kept quiet in the hope that nobody would notice. The immediate response of the Claimant to this question was to become agitated and visibly upset. The Tribunal therefore intervened. Before the Tribunal was able to intervene however the Claimant had already immediately announced to Ms Alistari of Counsel that she believed the allegation to be “absolutely outrageous” and “totally unfair”. A verbatim note of these responses on the part of the Claimant was made by the Tribunal. The Employment Judge himself was taken aback by the nature of the questioning and the manner in which it was put by Ms Alistari. He indicated that he had no recollection of the Respondent indicating at any time that the Response of the Respondent would be conducted on that basis. The Tribunal therefore paused to consider the Response of the Respondent. … The Tribunal therefore pointed out to Ms Alistari that if she now wished to pursue this line of cross-examination that she would need to seek permission from the Tribunal to do so and that in view of the immediate response of the Claimant she would have to be given the opportunity to consider the manner in which such an allegation was going to be put to her and the evidence which the Respondent intended to rely upon in order to substantiate such an allegation. The Tribunal therefore offered to Ms Alistari the opportunity in the Tribunal room to consult with her client as to whether this allegation was to be pursued. Mr McEvoy was sitting immediately alongside Ms Alistari. A discussion took place with Mr McEvoy following which Ms Alistari without any further comment indicated that the Respondent no longer wished to pursue that issue. Furthermore Ms Alistari accepted, and the Tribunal made a careful written note, that she accepted on behalf of the Respondent that at no time prior to 12:00 noon that day had it ever been suggested that the Respondent would be making an allegation of that nature to the Claimant. As already included in these Reasons, the response of the Claimant had been immediate and she had been visibly upset. The Tribunal therefore proceeded with cross-examination on the basis that the Respondent did not wish to pursue a claim that the Claimant had been deliberately dishonest in seeking to accept the salary of £30,762.”
(2) Sub-paras. 5.1-5.5 of the Amended Grounds read as follows:
“5.1 In cross-examination, the Claimant said she ‘went WOW’ and was ‘shocked’ by the salary figure of £30,762 quoted in the letters of 28 July 2010. Counsel for the Appellant then suggested to the Claimant that, given the gap of ten years since she had last practised as a nurse and the discussions in the interview regarding her need for re-training and regarding the pay scale into which her experience fitted, plus the fact that she had been told the correct salary figure during the telephone conversation with Ms. Smith, it was disingenuous of the Claimant to have kept quiet and not inquired of the Appellant if the figure of £30,762 was accurate.
5.2 At this point, the learned Judge intervened and stopped the cross-examination telling Counsel for the Appellant that she should know better than to put allegations of fraud to the Claimant when such had not been expressly pleaded in the Response. Counsel for the Appellant conceded no allegation of fraud had been pleaded, but pointed out it was not fraud per se that was being put to the Claimant but rather that she had been disingenuous. The Judge strongly disagreed stating that being disingenuous was the same as being dishonest which meant Counsel was improperly putting an allegation of fraud to the Claimant.
5.3 The Judge told Counsel for the Appellant that the Appellant was ‘at serious risk of a costs order’ and asked that she take instructions from the lay client on whether to continue with that line of questioning. Under the circumstances, the Appellant abandoned this point [paragraph 11 of the written reasons].
5.4 Counsel for the Appellant had sought to put to the Claimant the fact that she may have acted in a disingenuous manner in order to be able to make submissions that, if that was the case, the Claimant should not be allowed to rely on the unilateral mistake of the Appellant of erroneously quoting a much higher salary figure.
5.5 It is not correct as stated at paragraph 11 of the written reasons that ‘at no time prior to 12:00 noon that day had it ever been suggested that the Respondent would be making allegations of that nature to the Claimant’. Paragraph 17 of the witness statement of Ms. Smith, which the Claimant had been timely served with, stated: ‘I have little doubt that she knew that the salary was £22,474.75 as I checked with her. I ensure that candidates have understood everything I have said and ask them if there is anything else that they would ask’.”
(3) The Judge purports to respond to that complaint (though, strictly, in its previous incarnation as ground 5 of the original grounds) in his letter of 27 April. His account is as follows:
“I do not accept that I issued a forceful costs warning to Ms Alistari of Counsel. What I indicated was that she was raising a line of questioning which had clearly taken the Claimant by surprise and which was also in my opinion appearing to upset her. It was also a line of questioning which had not been suggested in the Response form. It appeared to me that it was being suggested that the Claimant had been disingenuous if not even dishonest in bringing her claim of discrimination [emphasis supplied]. I was then being invited to explore those reasons. I did not believe that those reasons were relevant to the claims and issues and in view of the fact that it was being raised as a fresh issue which in my opinion which had clearly taken the Claimant by surprise I did not believe that it was appropriate for that issue to be raised without the Claimant having had the opportunity to understand what was being alleged and without being given the opportunity to carefully reflect on what was being raised. I indicated therefore that if that line of questioning were pursued that it would have to consider whether or not it was appropriate and whether or not the Claimant should be given an opportunity to reflect. That may and I emphasise the word may result in an adjournment or alternatively result in a lengthening of the Hearing which may result in the case going part heard. I indicated therefore that there may be costs consequences in those circumstances and invited Counsel to retire with the Respondent. I gave them every opportunity to consider whether they wished to continue with the line of questioning in the circumstances and Ms Alistari returned after that period of private reflection with the Respondent including Mr McEvoy to indicate that they were content not to pursue that line of enquiry.”
Unfortunately, however, it seems that the Judge has misread the Grounds of Appeal. The Appellants’ complaint is not about his discouraging counsel from cross-examining the Claimant on why she had initially made a claim of disability discrimination (which Ms Alistari accepts occurred but about which she makes no complaint) but about his discouraging cross-examination on the basis that she knew all along that the offer of a salary of £30,762 was a mistake. This misreading is regrettable in that it deprives me of the Judge’s comments on the actual complaint made. However, I have his very full account of the episode in question from the Reasons themselves, and it would be disproportionate for me to cause further delay and expense by going back to him again.
30. The differences between the Judge’s account and the account pleaded in the Amended Grounds are in fact quite limited. It seems to me sufficiently clear that what happened was as follows:
(1) The Judge intervened when Ms Alistari put it to the Claimant that it was disingenuous of her to accept an offer which she knew or believed to have been made by mistake. The Judge says that Ms Alistari used the word “dishonest”. I think it likely that she did indeed say “disingenuous”, which was the word which Mr McEvoy had previously used in correspondence; but that the Judge pointed out that an allegation of “disingenuousness” is tantamount to an allegation of dishonesty. (That is a view with which I sympathise: “disingenuous” tends to be used, by lawyers and others, as a soft way of alleging dishonesty.) It would be unsurprising if the distinction had become elided in his note.
(2) The Judge said to Ms Alistari that no allegation of fraud had been pleaded. She conceded that that was the case, as she acknowledges at sub-para. 5.2 in the Amended Grounds. She contended that an allegation of disingenuousness was different from an allegation of fraud; but the Judge made it clear that he did not accept the distinction. The Judge does not record that exchange; but I think, again, that that simply represents an understandable elision because of his rejection of the substance of Ms Alistari’s point.
(3) In the light of that exchange the Judge invited Ms Alistari to take instructions. I am prepared to proceed on the basis that he said that if the line of cross-examination were pursued the Appellants would be at risk as to costs. The Judge does not in para. 11 of the Reasons mention giving such a warning, but he says nothing inconsistent with his having done so. I also note that in relation to Ms Alistari’s attempted cross-examination about the abandoned discrimination claim he accepts that he did give a costs warning, though he says that it was reasonable to do so and that what he said could not be described as “forceful”. In those circumstances I do not think it would be right for me to reject the allegation in the Grounds of Appeal that a costs warning was given, notwithstanding the regrettable absence of any support for it in Mr Mc Evoy’s affidavit. However, I have no details of exactly how it was put; and I should proceed on the basis that the point which the Judge was making was essentially the same as that which he says he made on the other occasion, namely that if the pursuit of this line of cross-examination led to an adjournment the Appellants might be liable for the costs occasioned thereby (though presumably in the form of a preparation time order since the Claimant was unrepresented).
(4) Ms Alistari had a discussion with Mr McEvoy in the Tribunal room and indicated that she would not pursue this line of cross-examination.
31. It is important to appreciate the way in which the appeal is now put. The Appellants are not, as in para. 5 of the original Grounds, asserting that the abandonment of the case that the Claimant had acted dishonestly/disingenuously was made under undue pressure. The withdrawal of that way of putting the appeal is probably sensible, given that, whether the Judge’s intervention was justifiable or not, he did give Ms Alistari the opportunity to take instructions; and it would be a very high hurdle to establish that the pressure created by his observations was such that she and (no doubt more pertinently) Mr McEvoy were deprived of a free choice whether to seek to proceed. The way that this episode is now relied on is simply as a manifestation of bias. I do not think that it will bear that weight. The Judge was right that no allegation of dishonesty had been pleaded. That might or might not have been a bar to the intended line of cross-examination; but it was an understandable issue for the Judge to raise. I am inclined to think that the costs warning was indeed pretty empty, since it is hard to see how an adjournment would have been necessitated; but it is far from unknown for judges to reinforce points of this kind with cloudy references to costs consequences, and doing so does not seem to me to manifest bias or in itself render the hearing unfair.
32. As to head (b) – that the Judge told the Claimant “that she did not need to put her case to the Appellants’ witnesses” and himself took over the questioning in an aggressive manner – the Judge anticipated this criticism in para. 26 of the Reasons, which reads as follows:
“Furthermore it was appropriate for the Tribunal to apply the legal principle of “equality of arms” bearing in mind that the Claimant appeared at the Employment Tribunal unrepresented and the Respondent had at all times been represented by a firm of solicitors and were also represented by Ms Alistari of Counsel during the Hearing. Appropriate assistance therefore was given to the Claimant to phrase certain of her questions during the course of cross-examination. When Mr McEvoy gave his evidence for reasons already explained above there was an immediate atmosphere of conflict and open disagreement between the Claimant and Mr McEvoy. This resulted in the Claimant and Mr McEvoy talking over each other and talking at each other in an animated fashion. This was clearly not in accordance with the manner in which evidence is taken by the Employment Tribunal. It is clear that the Claimant was becoming animated and it was equally clear that Mr McEvoy was becoming animated. At that stage it was equally clear from the body language and demeanour of Mr McEvoy and from the content of his witness statement and from the replies which he had already given to the Claimant in answer to questions put to him by the Claimant that there was absolutely no prospect of Mr McEvoy accepting any version of events which was put to him by the Claimant. It was that level of disagreement which had led to the open disagreement. The Employment Judge therefore explained to the Claimant that instead of pursuing each and every question which she had of Mr McEvoy that the Tribunal would instead be prepared to accept that there was no criticism of her if she failed to “put her case” to Mr McEvoy. The Tribunal indicated that to her in order to avoid Ms Alistari potentially making the point in closing submissions that the Claimant had not “put her whole case” to Mr McEvoy. To have required the Claimant to do that would have been to require the Claimant to continue to participate in an exercise where Mr McEvoy would have continued to deny the versions of events in question and the Tribunal took his evidence and the cross-examination on the basis that he denied and continued to deny strongly the version of events and/or versions of events which were the central focus of the Claimant’s claim.”
He makes the same case, at greater length, in commenting on this point in his letter of 27 April 2012.
33. It is very common that self-represented parties have little idea how to question the other party’s witnesses. There is nothing wrong in such a case in employment judges intervening in order to avoid cross-examination becoming a slanging match or becoming bogged down in irrelevances and to ensure that the essential points are put: indeed they should do so. The form of the intervention must be left to the discretion of the judge as a matter of trial management: different judges have different styles, and in any event the circumstances calling for intervention will vary very widely. There is nothing wrong in principle in the judge, in a situation of this kind, taking over the questioning on a particular point; nor in his or her taking the view that not every point of difference between the parties needs to be put – provided always that the witness has had the chance to give an answer on any point that is likely to be central to the case. There is of course the risk that a judge will lose objectivity by “descending into the arena” in this way, though generally a professional judge should be well able to resist the temptation. There is a much greater risk that, even though the judge is in fact remaining entirely impartial, it will not seem that way to the other party. But those risks sometimes have to be taken: while in a perfect world a judge should be able to sit back and let the parties or their advocates ask the questions, the employment tribunal is not a perfect world, and justice will sometimes, particularly where there are self-represented parties, require a more engaged approach. However, judges in such a case need to be alive to the risks, and they should do what they can to guard against them: in particular, they should do their best to defuse any perception on the part of the other party that the judge is “taking sides”.
34. Thus there was nothing wrong in principle in what the Judge set out to do. It seems that he was not able to do it without giving the impression that he was taking sides. That is a pity. It is particularly regrettable that his questioning of the Appellants’ witnesses was perceived as “aggressive and/or dismissive”. But it is impossible to know to what extent the Appellants’ view reflects real defects in the Judge’s manner as opposed to being the result of a distorted perception on their part. It does not help that the only evidence that I have is the unsatisfactory affidavit of Mr McEvoy. He does in fact cover this point, but he does so only in the most general terms, and the Judge’s findings about him make his capability for objectivity somewhat suspect. There is also a question of degree involved. No judge is perfect, and even if on occasion the Judge’s manner here was not what it should have been that would not justify a conclusion that he was not approaching the case impartially or that the Appellants had not had a fair hearing. Ultimately the question for me is whether the evidence establishes that an objective observer would have formed the view, from the conduct complained of, that the Judge was not impartial. I do not believe that it does. Still less does it establish that in either of the respects complained of the Judge’s interventions actually disadvantaged the Appellants. As regards his indication that not every point need be put, Ms Alistari did not identify any particular point central to the Judge’s reasoning on which Mr McEvoy or any of the Appellants’ other witnesses did not have a chance to give their evidence.
35. I turn finally to head (c), which concerns the Judge’s alleged refusal to agree to Ms Alistari’s request for written Reasons and his description of it to her as “a knee-jerk response”. The relevant passage in Mr McEvoy’s affidavit reads as follows:
“When our representative asked for a written copy of the findings Mr Whittaker became agitated and threatening, warning us that we should “reflect on this request”, that it was, in so many words, a waste of time, that he would only accept the request in writing, and we may have it after 14 days. That it may need to be a written request and that it may take 14 days may be true, but I consider the manner of his delivery, his threatening tone and his abruptness were not required.”
36. The Judge’s answer to this in his letter of 27 April 2012 reads (so far as material) as follows:
“I am alleged to have become agitated and threatening when Ms Alistari made a request for Written Reasons. I do not accept that I became agitated and neither was I threatening. I have commented in my Written Reasons as to the demeanour of Mr McEvoy throughout the period in which he gave evidence. I refer the EAT to those comments. At the conclusion of my oral Judgment Ms Alistari, without consulting anyone, immediately asked for a copy of the Written Reasons. It seemed to me that it was a petulant response to having lost the claim. She had not consulted with anyone about a request for Written Reasons. I did not refuse Written Reasons. I indicated to her that I was surprised that she had made that request without consulting with her instructing solicitors and without consulting with the Respondent and I indicated that she should perhaps reflect on the request with those who instructed her and with the Respondent and that of course if a request after that process of reflection was submitted to the Tribunal Written Reasons would be supplied without prevarication. I have since reflected on the relevant Rules of Procedure. I accept that Ms Alistari was entitled to make such a request for Written Reasons. I believe that my suggestion of a period of reflection, in order to remove the emotion of just having lost was appropriate but I also accept that in future I will not make such remarks and will instead simply accept the request for Writing Reasons and provide them.”
As written, that sounds very measured, and I certainly do not take literally Mr McEvoy’s epithets of “agitated and threatening”. But I am bound to say that I do detect even in the Judge’s account a tone of annoyance and criticism that is likely to have been apparent to those present. While Mr McEvoy does not in fact verify the use of the phrase “knee-jerk response”, which presumably reflects Ms Alistari’s recollection, the Judge’s reference to having regarded her request as “a petulant response to having lost” satisfies me that he did say something to that effect.
37. The Judge is right to acknowledge that the Appellants had an absolute right to written Reasons. It is true that the preparation of such Reasons is a significant additional task for judges who are already often very busy and also puts pressure on resources more generally; and I am aware that some judges do on occasion invite successful parties, for whom no question of an appeal arises but who nevertheless ask for written Reasons, to consider whether they really need them. That may be unobjectionable if done by way of gentle enquiry; but nothing should be said that appears to put pressure on a party, particularly a losing party, not to exercise what is a legal right. Even on his own account, that is what the Judge did here. There is nothing surprising in Ms Alistari not having found it necessary to take instructions before asking for written Reasons: her clients had just lost a case about which they evidently felt strongly, and she would need written Reasons in order to advise on a possible appeal.
38. However, while I think the Judge was wrong to say what he did, I do not believe that an objective observer would have taken it as indicating a bias in favour of the Claimant. It might indicate an irritation at the request being made, particularly if his remarks were not as measured as he now recalls; but such irritation, though a lapse from the highest judicial standards, would not betoken any substantive unfairness.
39. I accordingly do not believe that the material before me justifies the conclusion that the Judge behaved, in any of the respects pleaded, either with real unfairness or in such a way as to give the impression to an objective observer that he was biased. I would not, however, want to leave the impression that I am satisfied that his conduct was impeccable. The questioning of the request for written Reasons was unfortunate; and although I have found the interventions complained of under heads (a) and (b) to be justifiable, the Judge acknowledges in his letter that on some occasions he found it necessary “to address [Ms Alistari] in a particular manner” and that he was overtly critical of aspects of her conduct of the case (one of the remarks which he accepts having made being that which led to the original ground 6 (a)). I will not attempt to enter into the rights and wrongs of his view, but judges should bear in mind that even where criticisms of counsel are merited they should be expressed in measured terms: counsel should be robust enough to take forthright criticism, deserved or undeserved, but clients or witnesses who are present are liable to be more sensitive.
CONCLUSION
40. I have on this preliminary hearing seen the Appellants’ case at its strongest, since I have not heard contrary argument or seen any further evidence that the Claimant might choose to adduce in defence of the Judge’s conduct. Even on that basis, I do not believe this appeal can succeed; and I accordingly dismiss it at this stage.