Appeal No. UKEAT/0256/12/RN
UKEAT/0257/12RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On
22 August 2012
Before
HIS
HONOUR JUDGE McMULLEN QC
MR T MOTTURE
MR R LYONS
MR
M WHYTE APPELLANT
THE
LONDON BOROUGH OF LEWISHAM RESPONDENT
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING - APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural
irregularity
UNFAIR DISMISSAL – Compensation
Observations on the withdrawal of
allegations of judicial bias.
One point on unfair dismissal
compensation and arithmetic merits a full hearing. A pure construction point on
the Redeployment Scheme and its relationship to sick pay was dismissed,
although not dealt with by the Employment Tribunal, for it had no prospect of
success.
HIS HONOUR JUDGE McMULLEN QC
Introduction
1.
This is an appeal by the Claimant in those proceedings against a
Judgment on remedy of an Employment Tribunal sitting at London South under the
chairmanship of Employment Judge Taylor sent with reasons on 10 May 2011 and
against what is effectively a decision by her to refuse the Claimant’s
application for a review, undated but received by the Tribunal on 5 April 2011,
culminating in reasons sent on 20 May 2011.
2.
As is implicit, the Claimant had succeeded in the claim he made, for on
28 September 2009 the same Tribunal decided that the Claimant was unfairly dismissed.
The Respondent had failed to carry out the statutory dispute resolution
procedure then in force. This followed a five-day hearing and the Claimant’s
case together with that of two others resulted in a Judgment of 23 pages.
3.
The Claimant was dissatisfied with the Judgment in his favour,
maintaining that his claim for automatic unfair dismissal by reason of his
having made a protected disclosure ought to have succeeded and so he appealed. The
appeal came before Wilkie J on the sift, who rejected it indicating that the
Claimant in minutely detailed grounds of appeal was simply arguing questions of
fact. The Claimant was dissatisfied with the opinion of the Judge and sought
to raise a hearing under rule 3 but he was out of time and the Registrar refused
to exercise her discretion to extend time.
4.
The Claimant was dissatisfied with the Judgment of the Registrar and so
he exercised his right of appeal and the case came before HHJ Hand QC on 7 May
2010. The Claimant secured representation, he having effectively represented
himself and taken on the representation of his fellow claimants for most of the
liability hearing, although he did at one stage have a representative. Judge
Hand heard the representations and those of Mr Tom Brown of counsel who had appeared
throughout for the Respondent, and he too, at a fresh hearing, refused to
exercise discretion to extend time to allow the Claimant to proceed beyond the rule
3(7) decision.
5.
That is an explanation for the long delay between the liability and the
remedy hearings attributable as is clear from Employment Judge Taylor’s
reasoning to the Claimant’s unsuccessful challenge to the decision and his own
failure to meet the time limits in the EAT. The Claimant then appealed against
the remedy judgment at which an award of compensation of £5,404.63 had been
made to him, which after allowing for recoupment inured into a payment made by
the Respondent of £2,140.42 with a prescribed element of £3,264.21.
Bias
6.
The Claimant contended that Employment Judge Taylor had been biased
against him and so when the papers came before me on the sift, I pointed out that
if he were right about the bias of the Judge it would be likely that the whole
of the proceedings would be set aside; this is because I have never seen a
challenge on the grounds of bias or apparent bias to a part of the proceedings
conducted by a Judge. He would start again on his unfair dismissal claim.
7.
The Claimant pressed on, he swore an affidavit on my directions; the
Judge was invited to comment upon it, as were the lay members. The Judge
commented on 6 February 2012 in a letter of 6-pages. The lay members also gave
their comments.
8.
Today the Claimant has the advantage to be represented by Ms Eleena Misra
of counsel giving her services under the ELAA Scheme. Having taken express
instructions, the allegation of bias by the Judge is withdrawn. Allegations
made against judicial officers are now becoming more frequent. Rimer J in Shodeke v Hill
[2004] UKEAT 6 May 2004 0394/00/0605 said (in a case concerning a
lay advocate but it applies even more in the case of professional advocates):
“83 […] It is the familiar experience of anyone who has had to
deal (whether as a judge or advocate) with cases presented by litigants in
person that such litigants often focus on the irrelevant rather than the
relevant, shroud in some obscurity the points they are making and seek to
introduce new matters which have not been foreshadowed. These features of lay
advocacy necessarily require the Tribunal to make interventions with a view to
keeping the case on some sort of a track, quite apart from the need for
interventions directed simply at ascertaining what it is the litigant is trying
to say. Similarly, with a view to the proper protection of their clients’
interests, the opposing advocates will also quite reasonably find it necessary
to intervene – or interrupt – in order to achieve similar clarification.
Further, if those advocates are of the view that the litigant is endeavouring
to adduce material which is irrelevant or ought otherwise to be excluded, it is
not only their right but their duty to object to it. The regularity in which
it is necessary for such interventions to be made will vary according to the
skills of the particular litigant.”
9.
In Roberts v Carling UKEAT/0183/09/DA I set out my
approach in this way:
“9. Allegations of bias were noted by Rimer J in London Borough of Hackney v Sagnia [2005] UKEAT/0600/03 to be on the
increase. On behalf of the EAT he said this:
‘… Allegations of bias against employment tribunals are
raised as grounds of appeal to this tribunal with what appears to be increasing
frequency. They are most commonly made by litigants in person, often with
little or nothing by way of tangible support for the complaint, which on
analysis commonly amounts to no more than the deployment of the fallacious
proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the
tribunal was biased. Our experience is that bias allegations based on
complaints that the employment tribunal approached the appellant's case with a
closed mind, having already pre-determined the matter against the appellant,
have a low success rate. This is for the obvious reason that a tribunal cannot
form a concluded view on the issues until it has heard all the evidence and the
argument and so it will be a rare case in which a tribunal will at any earlier
stage make any utterances which either side can rationally regard as the
outward expression of some pre-judgment of the case.’
10. Five years later, and now from the much broader standpoint
of the Court of Appeal, Rimer LJ in Bascetta and Another v Abbey
National Plc [2009] EWCA Civ 840 returned to this matter in
paragraph 11 where he said this:
‘In my own experience of appeals to the Appeal Tribunal,
... vexatious allegations of bias are frequently raised by losing litigants
before employment tribunals.’
11. It is because of that growing tendency that the standard
direction is modelled upon a passage in the Practice Direction
paragraph 11. A bespoke approach is to be taken to such allegations and
unique among the orders made it carries with it the warning of costs being
awarded if the allegation is unsuccessful. PD11 is itself based upon a
judgment of Lindsay P and Members in Facey v Midas Retail Security and
Another [2000] ICR 287 which first set out the procedure in preparation
for, and then at the hearing of, allegations of bias against an employment
tribunal.
12. The reason why successive Presidents Lindsay, Burton, Elias
and Underhill JJ have retained that approach in the Practice Directions they
have issued is clear. Employment judges and lay members are now required to
take the judicial oath. Behaving unfairly towards a party is contrary to that
oath. Such allegations are serious and are required by the Practice Direction
to be supported by particulars of the allegation and sworn evidence by the
party making them, upon which they can be cross-examined and written statements
as appropriate by their representatives. This in turn may trigger a request to
the employment judge and lay members for their comments, and a right for to the
Respondent to submit evidence.”
10.
These were serious personal allegations about the conduct of a very
experienced Regional Employment Judge as to her conduct. They are wholly
illogical, given the Employment Tribunal found in his favour, and went on to
award compensation which is not challenged save as below. There is no criticism
of the lay members who, it must be inferred on the Claimant’s account, sat idly
by while the abuse which he swears to took place in front of them. It is
unnecessary for us to go further in this case. The allegations of bias,
apparent bias and procedural unfairness are dismissed on withdrawal by the
Claimant. There is no substance in them whatsoever and it is most unfair that
these allegations were made, that the three judicial officers, at public
expense, have been put to the trouble of responding to them, and that they are
withdrawn without explanation or apology at this hearing.
11.
Had the Respondent been put to costs, it would no doubt have sought its
costs with some prospect of success.
Compensation and benefits
12.
That leaves two points; we have decided one should go to a full hearing
and the other not. The one going to a full hearing is to do with the benefits.
As is apparent from the figures above some £3,000 or so was attributed to the
Claimant’s receipt of benefits. Doing the best we can on the material which is
available to us at the moment, it would appear that the Respondent had operated
on the basis that the Claimant was in receipt of either Incapacity Benefit or,
as the Tribunal found, Jobseeker’s Allowance.
13.
In representations he made to the Respondent by email in advance of the remedy
hearing, he produced a schedule of loss. With the help of Ms Misra it is, we
hold, more likely than not that the schedule of loss which appears at page 224,
225 and 226 of our bundle is what was produced. The document includes
Incapacity Benefits during the index period of only one month; this is 31 May
2008, and the period awarded by the Tribunal which was to end on 29 June 2008.
That document was included, we think mostly likely in the Respondent’s bundle
of documents. The Respondent was to produce the bundle and in its index there
is space at what is said to be pages 50 to 52 for a 3-page document. The
Claimant produced a bundle of documents which is accompanied by an index which
makes no reference to a schedule and so we consider it most likely that it, is
as Ms Misra helped us to come to the conclusion, these 3 pages.
14.
The figure produced by the Employment Tribunal is based upon a
combination of the operation of the Respondent’s sick pay scheme which operates
for 26 weeks at full pay and 26 weeks at half pay and the finding that the
Claimant was in receipt of Jobseeker’s Allowance and Income Support and so the
combination of those two features brought about the figure which it found. The
Claimant was given the opportunity to make any further submission in respect of
the figures because as the Judge acknowledged in her response to the EAT’s
orders, time was short at the end of the day and if there were any slips they
could be dealt with by the Claimant submitting further material.
15.
What he did was to send a document seeking what we hold to be a review
and what the Judge treated as being a review. It is undated, but the Judge
attributed it to 5 April 2011: the Claimant says that he presented a schedule
of loss to the Respondent. That is likely to be the three pages we have cited,
and his total claim to the DWP was £211.25. The document supporting that
figure is likely to have been put before the Employment Tribunal and appears at
page 53 of our bundle, and in it there is indeed a record of only two payments of
benefit of respectively £92.95 and £110.38, although the figures are very
indistinct. Broadly speaking, that document supports the Claimant’s contention
in his review application that the only benefits he had claimed were £211.00.
If that is the case, the Tribunal has arguably made an error in its calculations
and failed to acknowledge a piece of evidence which is important to the Claimant’s
claim for compensation. This matter will go to a full hearing.
The redeployment scheme
16.
The second matter relates to the Claimant’s contention of payment due
under the Redeployment Scheme. He initially contended the Tribunal had ignored
the Redeployment Scheme but we pointed out to Ms Misra that it is mentioned
five times expressly in the remedy Judgment and ten times in the liability
Judgment. That contention is utterly hopeless.
17.
The real issue is what does it mean? It says as follows:
“As a corporate redeployee you will continue to receive the rate
of pay relevant to your former post until you are placed into a new post,
either temporarily or permanently when you will receive the rate of pay
applicable to the post concerned. If this redeployment is to a lower graded
post then you will be paid on the maximum incremental point on the lower
scale.”
The Claimant in his written submission contended that this meant
that it overset the payment to sick pay. He was being paid in accordance with
medical certificates attesting to his unfitness to work from about 5 October
2007. At that stage he had been dismissed for gross misconduct, as fully
recorded in the liability Judgment, but had won his appeal and was reinstated. Then
he was diagnosed with depression and was off sick.
18.
It is contended that when he was designated as a corporate redeployee on
3 December 2007 his entitlement under the sick pay scheme ceased and he was to
be paid the full rate of pay as a corporate redeployee at the old rate of pay.
As the Claimant says, that argument did not flourish in the Employment
Tribunal, there is no mention of it. It appears to us to be a matter of
construction; Ms Misra says it is equivocal but she acknowledges that one
construction of it is that the relevant rate of pay is that with all the terms
and conditions attached to the substantive post prior to the corporate
redeployment.
19.
If that is so, the conditions relating to sick pay go with it. Although
she has identified a question, we consider it has no chance of success at a full
hearing. It is as though being designated as a corporate employee trumps all
other conditions. Even if the Tribunal did not expressly descend into this
issue we hold that there is no reasonable prospect of it being argued
successfully that that is the effect of the redeployment policy.
20.
In Ms Misra’s submissions, all she had to deploy by way of argument was
her client’s assertion that it is absolute, in our judgment that cannot be
right; the redeployment scheme operates within the context of all the other
terms and conditions of employment and so a case on this ground of appeal
stands no reasonable prospect of success and will be taken no further.
