HIS
HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Mrs Merle Oni (“the
Claimant”) against a judgment of the Employment Tribunal sitting in Leicester (Employment Judge Ahmed presiding) dated 22 June 2011. By its judgment the Tribunal
ordered the Claimant to pay the entire costs of proceedings which she brought
against NHS Leicester City (formerly Leicester City Primary Care Trust) (“the
Respondent”), such costs to be determined by detailed assessment in the County
Court. It was anticipated that the amount of costs would be very substantial.
2.
There are two main issues in the appeal.
The first is whether the Employment Tribunal should have recused itself from
hearing an application for costs, given opinions which it expressed when giving
reasons for deciding the case against the Claimant. The second is whether the
Employment Tribunal dealt correctly with the question of the Claimant’s means.
The background
3.
The Claimant is a trained nurse. She was
described by the Tribunal as an intelligent and highly educated individual with
an impressive list of academic qualifications. It appears that she has a
Master’s degree in Law. She was employed by the Respondent to work as a
haemoglobinopathy specialist nurse within a small team known as the “Sickle
Cell and ThalassaemiaTeam”. At the time of her appointment she already knew
the leader of the team, Mrs Jivanji.
4.
The Claimant’s appointment took effect on
6 October 2006. She worked part-time – just 2 days each week. Even though she
had been friendly with Mrs Jivanji, and even though she only worked 2 days per
week, her relationship with her team leader became strained from an early
stage. She did not like Mrs Jivanji’s style of management. There was a
significant incident on 2 February 2007 when Mrs Jivanji corrected a letter
drafted by the Claimant: following this incident there was a series of problems
between them until a meeting in August 2007. Then there was an interval of
relative peace until 17 June 2008. On this date there was an argument between
Mrs Jivanji and the Claimant relating to the opening of post. The Claimant
went off work, diagnosed with work related stress, never to return. Various
grievances were stated. Race discrimination was first mentioned in January
2009. There were attempts to persuade the Claimant to apply for other jobs,
but she declined to do so. Eventually she submitted her resignation on 6 July
2009.
The Tribunal’s liability judgment
5.
The Claimant’s claims were constructive
unfair dismissal, direct race discrimination and victimisation. They occupied
the Tribunal for 13 days in August and December 2010. There was a substantial
list of issues. She was at all material times represented by her husband, Dr
Oni.
6.
In a reserved judgment dated 18 February
2011 the Tribunal dismissed all the Claimant’s claims. The Tribunal’s reasons
are careful and detailed, running to some 54 pages.
7.
As regards direct race discrimination and
victimisation, the Claimant made allegations concerning a number of members of
the Respondent’s management. The Tribunal worked through them all and rejected
them. It said the following:
“173. We are satisfied that the allegations of race
discrimination are without foundation and should be dismissed. In evidence
when Mrs Oni was repeatedly asked why she believed a particular act to have
been done because of her race there was either no answer or no satisfactory
answer. We have serious concerns as to the genuineness of these complaints.
It must have been reasonably apparent to both Mrs Oni and Dr Oni, both highly
educated and intelligent individuals, that these lengthy, detailed and
extensive allegations had no real prospect of success.”
8.
This summary is amply borne out by the
Tribunal’s findings concerning the allegations against individual members of
management.
9.
As regards constructive dismissal, the
Tribunal concluded that there was no breach of the implied term of trust and
confidence on which the Claimant relied. It reached the following further
conclusion.
“178. We therefore have serious concerns as to the basis of the
claimant’s allegations of both discrimination and constructive dismissal beyond
17 June 2008. Discrimination was not cited as an issue until much later. We
do not accept that she had any genuine desire to return to work despite her
verbal and written assurances. At each and every opportunity the claimant or
her husband frustrated any prospect of a return to work. There was no genuine
or intention to ever return to work.”
10.
As to the Claimant the Tribunal said:
“185. The cross-examination of the claimant took a number of
days, a matter which Dr Oni objected to at various times. However, the primary
reason was the unsatisfactory manner in which Mrs Oni gave evidence. We found
it at times to be evasive and equivocal. Despite warnings that this would not
help her cause Mrs Oni was unwilling at times to answer straightforward
questions. It is a matter which Mr Monk refers to in his closing submissions.
Unfortunately, that also had a direct affect upon the length of the
cross-examination which in itself we did not find unduly protracted or
excessive. The claimant appeared to be unfamiliar with the content of many of
the documents which she supposedly authored herself or jointly with her
husband. There were long and frequent gaps in her evidence when questions
remained unanswered. We did not find Mrs Oni to be a reliable or satisfactory
witness.”
11.
The Tribunal had placed a guillotine on
the length of Dr Oni’s cross examination of witnesses whereas it had not placed
a similar guillotine on cross examination by the Respondent’s representative.
It explained why it did so in paragraphs 189 to 193 of its reasons. It was
highly critical of Dr Oni’s cross examination of witnesses, for reasons which
it set out in paragraphs 191-193 of its reasons.
12.
At the very end of its reasons the
Tribunal included a section entitled “Conduct of the proceedings”. It made
further specific criticisms of the conduct of the proceedings in paragraphs 195
to 199 of its reasons. It then said (paragraph 200):
“In our view, not only was the bringing of the various claims
unreasonable but the manner in which they have been conducted was also
unreasonable.”
13.
The Claimant’s appeal to the Employment
Appeal Tribunal against the Tribunal’s main judgment has been dismissed as
containing no reasonable ground for appealing on any question of law.
Statutory provisions
14.
Rule 40(2) and (3) of the Employment
Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal
(Constitution and Rules of Procedure) Regulations 2004) provide:
“(2) A tribunal or [Employment Judge] shall consider making a
costs order against a paying party where, in the opinion of the tribunal or
[Employment Judge] (as the case may be), any of the circumstances in paragraph
(3) apply. Having so considered, the tribunal or [Employment Judge] may make a costs
order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the
paying party has in bringing the proceedings, or he or his representative has
in conducting the proceedings, acted vexatiously, abusively, disruptively or
otherwise unreasonably, or the bringing or conducting of the proceedings by the
paying party has been misconceived.
15.
Rule 41 provides:
“(1) The amount of a costs order against the paying party shall
be determined in any of the following ways--
(a) the tribunal may specify the sum
which the paying party must pay to the receiving party, provided that sum does
not exceed £10,000;
(b) the parties may agree on a sum to
be paid by the paying party to the receiving party and if they do so the costs
order shall be for the sum so agreed;
(c) the tribunal may order the paying
party to pay the receiving party the whole or a specified part of the costs of
the receiving party with the amount to be paid being determined by way of
detailed assessment in a County Court in accordance with the Civil Procedure
Rules 1998 or, in Scotland, as taxed according to such part of the table of
fees prescribed for proceedings in the sheriff court as shall be directed by
the order.
(2) The tribunal or [Employment Judge] may have regard to the
paying party's ability to pay when considering whether it or he shall make a
costs order or how much that order should be.
(3) For the avoidance of doubt, the amount of a costs order made
under paragraphs (1)(b) or (c) may exceed £10,000.”
Recusal
16.
The Claimant’s first argument is that the
Tribunal should have recused itself. This argument was put to the Tribunal at
the outset of the hearing for costs, which took place on 13 May 2011. The
Tribunal dealt with it as follows in its reasons:
“25. There is one further matter which was raised at the outset
of the Hearing by Dr Oni and which we should deal with here. Dr Oni applied
for this Tribunal to recuse itself on the grounds of bias. Initially that application
was against the Employment Judge alone but was then extended to the entire
tribunal. Dr Oni alleged that Employment Judge had been sympathetic to the
respondent throughout and, but for his encouragement, the respondent might not
have applied for costs. The application for a recusal was opposed by the
respondent.
26. We saw no reason why this Tribunal should recuse itself. No
allegation of bias had been made against the Employment Judge prior to today’s
Hearing and the only allegation of bias raised in the appeal to the Employment
Appeal Tribunal on the liability decision was against one of the lay members.
That allegation was however dealt with and dismissed by the Employment Appeal
Tribunal. We do not accept that it would be appropriate to recuse. This
Tribunal having heard the evidence was in the best position to decide the
application for costs.”
17.
On behalf of the Claimant Ms Heather
Platt does not submit that the Tribunal was actually biased. She submits that
the case falls within the category of apparent bias. She has taken us to the
test laid down in R v Gough [1993] AC 646, In re
Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at
726-727 and Porter v Magill [2002] 2 AC 357. She accepts that it
is normally desirable for the same tribunal to hear costs applications; but she
submits that the remarks made by the Tribunal in its liability reasons were so
closely related to the question of costs – an application not then before it –
that in this particular case a fair minded and informed observer would conclude
that there was a real possibility that the Tribunal was biased. Its remarks
tended to show that it had made up its mind that the costs criteria were met.
18.
Ms Platt further submitted that the Tribunal should also have recused
itself from hearing the costs application because it knew that there had been
an appeal to the Employment Appeal Tribunal arguing that it was biased. The
complaint on appeal related to all three members not (as the Tribunal thought)
only one; but the submission would in principle apply whether the complaint
related to one or all of the Tribunal members.
19.
On behalf of the Respondent Mr Monk submits that the Employment Tribunal
was correct to deal with the question of costs. He accepts that the remarks of
the Tribunal in paragraphs 195 to 200 tend to show that an application for
costs would be looked on favourably. He submits, however, that these remarks
build upon and follow from the Tribunal’s earlier findings. Further he submits
that the mandatory wording of rule 40(2) required the Tribunal, if it was of
the opinion set out in that paragraph, to consider the question of costs; and
therefore the Tribunal was entitled to express itself as it did and still to
consider the question of costs as a matter of discretion. He submitted that,
given the legal framework applicable, the informed observer would not consider
there was any danger of bias.
20.
The approach of the Appeal Tribunal to an allegation of bias by a
Tribunal is the same as that of any appellate court, and is derived in modern
times from the decision of the Court of Appeal in In re Medicaments and
Related Classes of Goods (No 2) [2001] 1 WLR 700 at 726–727, as
approved by the House of Lords in Porter v Magill [2002] 2 AC 357 at para 103.
21.
The Appeal Tribunal must first ascertain all the circumstances which
have a bearing on the suggestion that the Tribunal was biased. It must then ask
whether those circumstances would lead a fair-minded and informed observer to
conclude that there was a real possibility that the Tribunal was biased.
22.
It is not unusual for a judge or tribunal to deal with different aspects
of a case at different hearings. In tribunal proceedings there may be a
separate hearing after the liability hearing to deal with remedy or costs or
both. In civil proceedings the judge who determines the proceedings will
generally deal with the incidence of costs. In criminal proceedings the judge
who presided at a trial and sentence will usually be called on to deal with any
confiscation proceedings. In care proceedings concerning children there may be
a hearing concerned with establishing a threshold for the making of a care
order, followed by a separate hearing to determine what is in the best
interests of the child. In such cases as these it is generally in the public
interest that so far as practicable the same judge or panel should deal with
all the issues. This is a consideration which the fair minded and informed
observer will understand.
23.
In Locabail v Bayfield Properties
[2000] QB 451 (applied in R v Oshungbure [2005] EWCA Crim 709, to which we referred the parties), Lord Bingham said:
"...a real danger of bias might well be thought to arise if
in a case where the credibility of any individual were an issue to be decided
by the judge he had in a previous case rejected the evidence of that person in
such outspoken terms as to throw doubt on his ability to approach such person's
evidence with an open mind on any later occasion; or if on any question at
issue in the proceedings before him the judge had expressed views, particularly
in the course of the hearing, in such extreme and unbalanced terms as to throw
doubt on his ability to try the issue with an objective judicial mind... The
mere fact that a judge, earlier in the same case or in a previous case, had
commented adversely on a party or witness, or found the evidence of a party or
witness to be unreliable, would not without more found a sustainable objection.
In most cases, we think, the answer, one way or the other, will be obvious. But
if in any case there is real ground for doubt, that doubt should be resolved in
favour of recusal."
24.
In Oshungbure the Court of
Appeal said that it was a question of fact and degree whether a judge’s remarks
at one stage of a case were properly to be interpreted as giving rise to a
perception of bias as and when the same judge has to determine another part of
the case. That was a case where the judge passing sentence had expressed
himself in such terms that (the Court of Appeal held) he should have recused
himself from dealing with a subsequent confiscation hearing. Rose VP said:
“It is common ground before us, and rightly so, that a judge in
passing sentence not only can but should express his views in relation to
evidence given by a defendant, which he and the jury have heard. It may be
highly pertinent in explaining to those involved in the case, and to the wider
public, why a particular sentence is passed and it may be of highly material
assistance to the Court of Appeal if and when that sentence comes to be
reviewed, to know the judge's view of the evidence which has, at that stage,
been heard. As it seems to us, there can be no objection to a judge expressing
his views in relation to what has already been heard from the defendant in
trenchant terms. But, as it seems to us, what a judge who knows that he is
likely to have to conduct fact-finding exercises himself, in relation to the
same defendant, must not do is express himself, at the sentencing stage or at
any earlier stage in a way which may sensibly be perceived to show that he is
biased against the defendant and unlikely to believe anything that the
defendant may tell him in the future. It is clearly a matter not only of
practical convenience, but of good sense that the same judge who has conducted
a trial should generally in due course, conduct the confiscation proceedings
which arise from it.”
25.
Applying those principles to employment
tribunal proceedings, we consider that the position is as follows.
26.
Firstly, it is in the interests of justice that the tribunal which dealt
with the liability hearing should also deal with the question of costs.
27.
Secondly, the mere fact that the Tribunal has expressed itself in terms
adverse to the Claimant in the course of giving reasons for the liability
judgment is not a ground for recusal.
28.
In this case, for example, the Tribunal was required, in order to
resolve issues of fact which it had to determine, to take a view of the
Claimant’s credibility. It was bound to express its view in its reasons. This
would not cause the fair minded and informed observer to suppose that the
Tribunal had pre-judged the issue of costs.
29.
Further the Tribunal was entitled, when deciding the question of race
discrimination, to point out that the Claimant and Dr Oni had been unable to
say why they believed particular acts to have been done because of their race.
This was relevant to the issue of discrimination.
30.
Further the Tribunal was required, in order to explain why it had
imposed a time limit on Dr Oni’s cross examination when it had not imposed such
a limit on the Respondent’s counsel, to explain why it was necessary to do so –
namely that his cross examination strayed well beyond the issues as defined and
agreed and was unfocussed.
31.
In all these respects the Tribunal’s reasoning was called for in order
to deal with its liability reasoning. Its conclusions would no doubt be relied
on by the Respondent in order to support an application for costs; but they
were not directed primarily to such an application and they did not of
themselves pre-judge such an application. The fair minded and informed
observer would not take them as indicative of bias.
32.
Thirdly, however, the Tribunal should not express itself in a way which
tends to demonstrate that it has already made up its mind, prior to hearing
argument, not only on the issues it had to decide but also on issues which only
fall for decision if an application for costs is made. If a Tribunal does
this, the fair minded and informed observer will conclude that there is a real
possibility that the Tribunal has pre-judged the question of costs.
33.
Unfortunately, it seems to us inescapable that in paragraphs 195 to 200,
under the heading “Conduct of the proceedings” the Tribunal did express itself
in this way. By this stage in its reasons it had said everything required to
explain its decision and to explain particular features of case management
during the hearing which properly called for comment. This last section of its
reasons – culminating as it does in the opinion expressed in paragraph 200 –
would be taken by the informed and fair-minded observer as principally directed
to the possibility of an order for costs. The wording in paragraph 200 plainly
calls to mind threshold tests for the grant of an order for costs; and it expresses
concluded views on the application of those tests. In our judgment the
informed and fair minded observer would indeed conclude that there was a real
possibility that the Tribunal had pre-judged the question of costs.
34.
The lesson, it seems to us, is this. A Tribunal dealing with the
question of liability can and should express itself fully and properly on that
issue, making if called for trenchant findings about credibility, and
explaining if necessary a case management decision during the hearing even if
this involves expressing views about the reasonableness of the conduct of a
party which led to the case management decision in question. A Tribunal should
not however reach or express concluded views which really anticipate arguments
on the question of costs which have not yet been put before it.
35.
We recognise, of course, that there are some decisions which an
Employment Judge or Tribunal takes where the very decision itself involves a
threshold decision about costs. We have in mind striking out decisions under
the various headings within rule 18 of the Employment Tribunal Rules of
Procedure. In such cases, unlike this case, the hearing will have called upon
the Tribunal to adjudicate upon the issue and the parties will have addressed
the Tribunal on it. It will have judged the issue: there can be no objection
to that. In this case, however, the Tribunal pre-judged the issue.
36.
We do not accept Mr Monk’s argument that the mandatory nature of the
wording in rule 40(2) required or entitled the Tribunal to reach and express
final conclusions on the question of costs without first hearing the parties.
A Tribunal should keep an open mind until it has heard submissions from the
parties.
37.
For these reasons we consider that the Tribunal should have recused
itself from hearing the application for costs.
38.
We do not, however, accept Ms Platt’s
alternative argument that the Tribunal should have recused itself merely
because there was an appeal at which an allegation of bias was made against it
in relation to the liability hearing. The informed and fair minded observer
knows that Employment Judges and members have broad shoulders; they are
familiar with the tendency of litigants who have lost a case to make an
allegation of bias; they are able to deal with further aspects of the case
without pre-judging them; and it is in the interests of justice that they
should not be deflected from doing so by a mere allegation of bias put forward
in an appeal.
Means
39.
The second main aspect of the appeal
concerned the question of the Claimant’s means. In his skeleton argument for
the hearing Dr Oni had said – albeit in passing – that the Claimant’s current
income was a state pension of £408 per month. He also said during the hearing
that his wife’s only income was a state pension.
40.
In its reasons the Tribunal dealt with
the question of means in the following way:
“20. We have no doubt the claimant has the means to pay costs
though we note that neither the claimant nor her representative have chosen to
disclose details of their financial means. Rule 41(2) is couched in
discretionary terms and it is not obligatory for us to consider means. In any
event, Dr Oni, who is clearly well aware of the provisions of Rule 40 of the
2004 Rules (he has quoted parts of it to us in his skeleton) has chosen not to
put evidence of his wife’s means before us.”
41.
On behalf of the Claimant Ms Platt argues
that the Tribunal was not justified in concluding that the Claimant had the
means to pay costs without any enquiry at all, notwithstanding what Dr Oni said
in the witness statement. She further submits that Dr Oni had sufficiently put
the Claimant’s means before the Tribunal for it to take means into account or
at least enquire about them.
42.
On behalf of the Respondent Mr Monk submitted that the Tribunal was
entitled to hold that the question of the Claimant’s means had not been
properly raised and therefore to refuse to deal with it. He submitted that the
Tribunal had no duty to raise the question of means itself. He referred us to Osonnaya
v Queen Mary University of London [2011] UKEAT/0225/11 at para 28. He
sought to distinguish the recent decision in Doyle v North West London
Hospitals NHS Trust [2012] UKEAT/0271/11 at paras 12-16.
43.
Since this case is in any event to be re-heard by reason of our decision
on the question of recusal, we think it is sufficient for us to say that the
finding of the Employment Tribunal that the Claimant had means to pay an award
of costs cannot stand. The Tribunal had material before it to the effect that
she had only a state pension; it did not suggest that it might make any
contrary finding. Even if it could permissibly have declined to take means
into account it was not entitled to make a finding that the Claimant had the
means to pay costs. We do not think it necessary on this appeal to go any
further than that; still less to resolve any difference there may be between Osonnaya
and Doyle.
44.
We would however make two general observations.
45.
Firstly, whether or not it is obligatory to do so as a matter of law, Doyle
shows the wisdom of the Tribunal raising, at the very least in a case where
the costs are substantial, the question of means.
46.
Secondly, litigants in person, even if
they appreciate that the Tribunal may take their means into account, may not
know what to do in order to prepare for that issue. They may think it will be
sufficient to make a submission on the question to the Tribunal. Tribunals are
likely to require more; but litigants will not necessarily know that. If the
Tribunal does not take means into account, and the case subsequently goes to
the County Court, the form upon which the paying party will set out his or her
means is form EX 140. A possible solution to this problem, at least where the
Tribunal is giving directions in advance relating to a costs hearing, is to say
that a party who wishes his or her means to be taken into account should
complete this form.
Conclusions
47.
Although some arguments were advanced on
other points concerning the reasoning of the Tribunal, we do not think it is
necessary or desirable to say more. The application for costs must be remitted
for consideration by a differently constituted tribunal. We make it clear that
this tribunal will take as its point of departure the findings and reasons of
the existing tribunal as regards liability issues: these are not open to
further argument. But the tribunal will reach its own conclusions on all the
questions relating to the application for costs itself – whether the threshold
conditions for an order are met; whether to take means into account and if so
how; and whether in its discretion it should make an order for costs, and if so
in what amount.
48.
We will direct that the Claimant, if she
wishes her means to be taken into account, must lodge at the Employment
Tribunal and serve on the Respondent a statement of her means in form EX 140
within 21 days of the seal date of the Appeal Tribunal’s order. All other
questions of case management will be for the Employment Tribunal to determine.
