HIS HONOUR JUDGE DAVID
RICHARDSON
Introduction
1.
This is an appeal by Mr Ronald MacLean
Drysdale (“the Claimant”) against a judgment of the Employment Tribunal (“the
ET”) sitting in Southampton (Employment Judge Cowling presiding) dated 28
October 2011.
2.
Although the written judgment is dated 28
October 2011 it reflects events which took place on 18 October 2011 – the
second day of a hearing at which the Claimant was represented by his wife Mrs
Daniela Drysdale in a claim for unfair dismissal, contrary to section 103A of
the Employment Rights Act 1996, brought against the Department of
Transport’s (Maritime and Coastguard Agency) (“the Respondent”).
3.
We shall recount those events in greater
detail later in this judgment. Suffice it to say for the moment that Mrs
Drysdale withdrew the Claimant’s claim; the Respondent applied for the claim to
be dismissed on withdrawal; the ET dismissed it; the Respondent applied for
costs; and the ET made an order for costs against the Claimant in the sum of
£1050. The Claimant argues that the withdrawal, dismissal and order for costs
ought to be set aside, because the Tribunal did not consider whether Mrs
Drysdale had “capacity” to withdraw the proceedings. The Claimant further
argues that Tribunal unfairly decided the question of costs without hearing the
Claimant’s submissions.
4.
The Claimant’s appeal is against the
judgment dated 28 October 2011. The Claimant also applied to the ET for a
review. That application was refused by the Employment Judge by a further
judgment dated 7 December 2011 which is not the subject of this appeal.
The background facts
5.
The Claimant was employed by the Respondent
as a marine surveyor with effect from 29 July 2000.
6.
Many years earlier, in 1974, a fishing trawler known as the Gaul had been lost with all its crew. There had been an inquiry at the time; but the
inquiry was re-opened in 2004 after the wreck of the ship was discovered and
surveyed. The inquiry reported in December 2004. The Claimant was
dissatisfied with certain aspects of the report. He believed that certain hull
fittings had design faults details of which had not been properly presented to the
new inquiry and which the new inquiry had not recognised. He wrote a series of
letters to the Respondent, beginning on 2 July 2007, setting out his concerns.
He also aired his concerns publicly. It was accepted by the Respondent that
what the Claimant said in his letters amounted to public interest disclosures
for the purposes of part IVA and section 103A of the Employment Rights Act
1996 – which are popularly known as the “whistleblowing” provisions of the
Act.
7.
The Claimant continued to work for the
Respondent. However in April 2009 he requested home-working so as to assist
his wife, who had become ill with a severe form of type 1 diabetes. He was
granted home-working temporarily, and extensions were granted until 31 October
2009. At this point, however, the Respondent refused a further extension on
the grounds that further extensions were not tenable from an operational
perspective. He was granted special unpaid leave from 1 November 2009 to 4
January 2010 to make alternative arrangements for his wife’s care. On 8
January 2010, when he returned to work, he again asked to home-work. His
application was refused. He went off work on sick leave supported by a
certificate for “stress at home”. He remained on certified sick leave. In due
course he requested voluntary early retirement. It was granted with effect
from 15 July 2010.
The Tribunal proceedings
8.
The Claimant commenced proceedings before
the ET claiming (1) that he had been subjected to detriment by reason of making
protected disclosures, contrary to section 47B of the 1996 Act, and (2) he had
been constructively and unfairly dismissed – in particular that he had been
dismissed wholly or principally for making public interest disclosures,
contrary to section 103A of the 1996 Act.
9.
By the time of the final hearing the Claimant’s case had been limited in
two ways. Firstly, it was held at a pre-hearing review that the claim contrary
to section 47B of the 1996 Act was out of time, so that the ET had no
jurisdiction to hear it. Secondly the Claimant had limited his claim for
unfair dismissal to a claim contrary to section 103A of the 1996 Act, as
opposed to a claim of “ordinary” unfair dismissal (see section 98).
10.
We should make it plain that it was not the ET’s task to decide whether
the public interest disclosures were or were not true. The focus was upon the
Claimant’s case that he was constructively dismissed and that the sole or
principal reason for his dismissal was the making of the disclosures. This was
not a straightforward case for the Claimant to advance, bearing in mind that he
had started to make his allegations some years before his employment came to an
end and that his employment only came to an end when he requested and was
granted early retirement. Indeed a deposit order had been on the grounds that
his claim had little reasonable prospect of success.
11.
The Claimant’s claim form had not
identified a representative, but well before the final hearing he had appointed
his wife to this task. She wrote letters on his behalf seeking witness orders
describing herself as “lay representative for Ronald Drysdale – Claimant”. She
represented him throughout the hearing, which started (two hours late) on 17
October 2011 and ended, in circumstances which we will have to describe in more
detail, on 18 October 2011.
The appeal
12.
The Claimant’s Notice of Appeal against
the judgment given on 28 October set out three grounds. When the Notice of
Appeal was first sifted it was considered to disclose no reasonable ground for
appealing, but at a hearing on 28 March 2012 under rule 3(10) of the Employment
Appeal Tribunal Rules 1993 two of the three grounds of appeal were allowed
through to a full hearing. These are:
“18. The Tribunal erred in law by deciding to dismiss the
Claimant’s case without considering whether the Claimant’s representative had
capacity to withdraw the claim at the time when she did.
19. The Tribunal erred in law by not taking all
the Claimant’s circumstances into account (as presented above) and deciding the
matter of costs without hearing the Claimant’s objections. (It is possible
that the Tribunal could not understand that after almost eight years of
continual harassment, persecution and intimidation the Claimant and his wife
were likely to have a resistance to stress lower than that of the average
person.”
13.
These grounds plainly required some
findings to be made as to what occurred before the ET. The EAT generally gives
case management directions for dealing with cases which require such findings.
First, an appellant is required to serve an affidavit or affidavits. Then the
ET is asked to comment and the respondent to the appeal is given an opportunity
to put in evidence. This procedure was operated by the Order dated 28 March
2012.
14.
The ET’s judgment dated 28 October 2010 had contained an error in its
heading. It named the Employment Judge, but omitted to name the two lay
members who sat with him. This had two consequences.
15.
Firstly, the EAT’s order dated 28 March 2012 provided that the appeal be
listed before a Judge alone. However, there is no doubt (as we shall see) that
the judgment was a judgment of an ET with three members. Such an appeal must
be listed in the EAT with a Judge and members: see section 28 of the Employment
Tribunals Act 1996. His Honour Judge David Richardson called for members
at short notice; and the two lay members of this EAT panel made themselves
available.
16.
Secondly, however, the EAT’s order had asked for comments only from the
Employment Judge. In a case where lay members are involved, and where there is
a complaint about what happened before the ET, the lay members as well as the
ET ought generally to be asked for their comments. It was not possible to do
so in time for the hearing. It was agreed at the hearing of the appeal that the
oral hearing should proceed; that after the oral hearing the ET members should
then be asked for their comments; and that after their comments were received
the parties should have an opportunity to put in written submissions before the
EAT delivered a reserved judgment. This procedure has been followed.
17.
The Employment Judge was asked to comment on the affidavits lodged and
on the following particular matters: (1) the circumstances in which the claim
for unfair dismissal was treated as withdrawn; (2) Who sought to withdraw the
claim and in what terms; (3) If it was the Appellant’s representative, in what
condition did [she] appear to be when she sought to withdraw the claim; (4) Was
the Appellant asked to confirm that he wished to withdraw his claim? (5) Were
the Appellant or his representatives present when the claim was dismissed? (6)
Were the Appellant or his representative told that a costs order was to be
considered? (7) Were the Appellant or his representative present when the
application for costs was made? The members were not asked to comment on (6)
and (7), the answers to these questions being uncontroversial by the time of
the oral hearing of the appeal.
18.
Accordingly, as to what took place before
the ET, the EAT has affidavits from the Claimant and Mrs Drysdale; an affidavit
from Mr Jeremy Burns, counsel for the Respondent; and comments from the
Employment Judge and members. We also have skeleton arguments from Mrs
Drysdale (who has again represented the Claimant) and from Mr Burns for the Respondent;
and further submissions in response by the Claimant himself. In addition we
have a bundle of documents prepared for the oral hearing, and bundles of
authorities. We have taken all these into account. It will, we think, be most
helpful if we set out our findings as to what occurred at the ET hearing before
we turn to the parties’ submissions on questions of law and our conclusions.
What took place at the hearing
19.
The hearing had been listed for two
days. This time estimate would have been very tight even if the hearing had
started on time and the Tribunal read the witness statements for itself. In
fact the Claimant read a comprehensive witness statement and referred to
documents in the agreed bundle as he went along. There was also a 20 minute
break on the first day when the Claimant became upset while reading out his
witness statement.
20.
At this point it is convenient to take up
the story as recounted by the Employment Judge.
“On the following morning, 18 October 2011, the Appellant
concluded his evidence and he was then cross examined by Mr Burns. The
Appellant handled himself confidently and gave considered and cogent responses
to the questions he was asked by Mr Burns. The Tribunal took a routine break
between 11.45 am and 11.55 am and broke for lunch from 1.05 pm to 2.05 pm. The
cross examination of the Appellant resumed in the afternoon and concluded at
3.30 pm. At the request of the Appellant’s wife there was then a short break.
The Tribunal discussed amongst themselves whether the case could be completed
in the time allocated. It had become patently obvious that a further hearing
would be required to conclude the case. The Appellant was still giving
evidence toward the end of the two day Hearing and three witnesses were in
attendance to give evidence for the Respondent.
After the break this issue was raised with the parties. Mr
Burns suggested that a further two days would be required which accorded with
the Tribunal’s own estimate. For the Appellant Mrs Drysdale expressed disappointment
that the case would not be completed in the two days allocated. I explained to
her that Mr Burns proposed to call three witnesses and that we would need to
allow time for closing submissions and for the Tribunal to consider its
judgment. In those circumstances I explained that the two day estimate was
realistic.
Mrs Drysdale suggested that the case could continue the
following day. I explained that other cases were already listed to commence
the following day. After consulting with the parties and after checking with
the Listing section it was found that the earliest two day Hearing was 20 and
21 February 2012. It was agreed that at the conclusion of the Hearing on 18
October 2011 the Hearing would be postponed part-heard to 20 and 21 February 2012.
I explained to the parties that for administrative reasons we could not sit
beyond 4.45 pm on 18 October 2011 after which the Hearing would be postponed
part-heard to 20 and 21 February 2012 and that we hoped to concluded the
Appellant’s case by the end of the day.
After the break the Appellant was re-examined by his wife.
Unfortunately Mrs Drysdale commenced her re-examination by putting a series of
leading questions to her husband and I explained to her why that was
inappropriate. At 4.35 pm I asked Mrs Drysdale how much longer she estimated
her re-examination of the Appellant would take. I reminded her that we could
only sit until 4.45 pm that day. She said “And then what?”. I explained to
her that the case would be postponed part-heard and that as agreed the Hearing
would resume on 20 February 2012.”
21.
The Employment Judge continued:
“After stating that she did not want the case to be postponed
and after declining an invitation from me to continue with her re-examination
she then announced that she wished to withdraw the claim. I asked her whether
or not it was her application for the claim to be withdrawn and she said yes.
I looked at the Appellant and he did not demur. Mr Burns made application for
the claim to be dismissed on withdrawal. The Tribunal did not retire but we
discussed what had occurred. We unanimously concluded that the application to
withdraw should be granted and I dismissed the claim.
Mr Burns made an application for costs. Whilst he was speaking
the Appellant stood up and left the witness table to rejoin his wife. They
both stood whilst Mr Burns continued with his application for costs. Mrs
Drysdale then shouted “We are not paying anything”. Still standing she began
to gather up her file of papers. I urged her to return to her seat explaining
that she would be given a chance to respond to Mr Burns’ application for
costs. She started shouting again. She said “I’m tired of hearing Mr Burns’
voice”. Mr Burns continued with his costs application and indicated that the Respondent
had incurred costs to date of £33,900. Still standing Mrs Drysdale shouted “We
are paying nothing”. They both gathered up their remaining papers and left the
room whilst Mr Burns continued with his costs application.”
22.
In answer to specific questions the
Employment Judge said:
“.... Mrs Drysdale made the application to withdraw on behalf of
the Appellant when it was explained that the case could not be completed that
day. At that stage Mrs Drysdale was perfectly composed although disappointed that
time constraints meant that the case could not be completed that day.
The Appellant was not directly asked to confirm that he wished
to withdraw his claim. Throughout the proceedings Mrs Drysdale had been acting
on behalf of and on the instructions of the Appellant. He sat at the witness
desk listening to the exchanges between Tribunal, his wife and Mr Burns and
raised no objection to his wife’s application for the claim to be withdrawn.
Both the Appellant and his representative were present when the claim was
dismissed. They both left during the course of Mr Burn’s costs application....
Clearly she was aware of the nature of the application although she sought
constantly to interrupt it and left the room before the application was
completed by Mr Burns. She ignored repeated requests from me to return to her
seat so that she could hear the costs application and respond to it.”
23.
Mrs Drysdale’s account was as follows.
“2. At the end of the second day of hearing, when
I was told by the Employment Judge that the time for re-examining the claimant
was to be limited because the court could only sit until 16.45 pm, I stated
that, perhaps, it was no point at all in my continuing to examine the
claimant. After a long and stressful day spent seated on the chair and
listening to the respondent’s counsel aggressive cross-examination, having had
my applications and objections refused, I was feeling ill and nervous and my
vision was getting blurred, I could no longer concentrate, and I badly needed
to go out and move around.
3. I said loudly that I thought (referring to the way the
proceedings had been conducted from the beginning of the case) that that was
not serious. The judge must have heard that and told me to continue in the
time that was left, but I asked him what would happen with the examination of
the respondent’s three witnesses who were present at the hearing who had not
yet been heard. The judge advised that they would be examined on the 20th
of February – the date when the extension for the hearing had been scheduled.
4. I then immediately retorted that I would withdraw the
application because we would not be in the area at the time of the re-scheduled
hearing. The judge asked me if I wanted to withdraw the claim and I quickly
said ‘Yes’.
5. One and a half seconds later, the respondent’s counsel said
that he wanted to apply for the claim to be dismissed. The employment judge
agreed with him, looked left and right towards the other two members of the
panel and said something to them, then seven and a half seconds later, (that is
nine seconds after I had confirmed my wish to withdraw the claim) cheerily
announced that the claim was marked off as withdrawn. I remember that the
judge’s light hearted manner added to my irritation.”
24.
Before us Mrs Drysdale explained that the
reference in paragraph 4 of the affidavit to not being “in the area” was a
reference to the fact that she and the Claimant then contemplated a move to Germany.
25.
Mrs Drysdale went on in her affidavit to
recount that counsel for the Respondent made an application for costs; she
interrupted him; she was told by the Judge to sit down and listen to the costs
application; she was “furious” with what she regarded as verbal abuse by
counsel and interrupted again, apparently on more than one occasion; and
counsel continued to make an application for costs saying that as much as
£33,000 was due. She then continued:
“14. I believe that this was the stage where I left the room as
I was starting to feel very ill and was wobbly. I remember turning my head and
seeing the claimant who looked very upset. I think I was already in the
corridor when I heard him saying from behind: “Thank you gentlemen for your
time, thank you for your efforts; I’m sorry that we haven’t come to a good
resolution in this matter. Thank you!”
26.
She said that following the hearing the
Claimant insisted that she use her blood monitor to check her blood glucose
levels; that she refused to do so until they returned to their car; and that
when she did so she found that her blood glucose levels were very high,
requiring an immediate injection of insulin.
27.
The Claimant’s account is broadly to
similar effect, but he emphasises that in his view his wife’s health was
deteriorating in the last period of the hearing. The key passage of his
affidavit states as follows.
“The case resumed at about 15.45 and thereafter my wife
questioned me for about 40 minutes until the Judge intervened to query her as
to the time she still needed to conclude her examination. She indicated that
she still needed some 30 minutes to conclude; however, the Judge advised that
the Court would only sit until 16.45.
My wife’s questioning of me had been very unsatisfactory as she
was asking leading questions – one after another – despite the Judge’s multiple
interventions and directions. This surprised me as normally her approach and
use of language is almost mathematical in its precision and this was definitely
not happening here – she was obviously confused.
On realising that she only had about 10 minutes left to finish
examining me, my wife, visibly agitated by this time, told the judge that it
was hardly worthwhile to continue. The Judge invited her to continue with her
examination and, in a further exchange, she learnt that it would be another 4
months before she would be able to put questions to the respondent’s witnesses
– a timescale that, at that time, seemed to her beyond our means.
She then quickly responded by saying that she would withdraw the
application and, when asked by the Judge whether she wished to withdraw the
claim, she said ‘yes’.
Mr Burns immediately applied for the claim to be dismissed and,
after a very brief consultation with the two other members of the panel, the
Judge advised all present that the claim was marked as being withdrawn.
This all happened so quickly – it was over in a matter of
seconds – that I did not have the opportunity to confer with my wife or express
my views. I was still trying to work out the implications of her actions when
the judge, without addressing me, decided to mark the case as withdrawn. I was
confused and dissatisfied with that outcome. Although my representative (my
wife) had authorisation to act on my behalf when fit – the withdrawal of the
claim at that point in time was effected without my specific authority or
agreement.”
28.
He continued:
“Immediately following the Judge’s pronouncement regarding the
withdrawal, Mr Burns jumped in and stated that he wished to apply for costs
and, after being invited to apply for same by the judge, continued with his abusive
allegations as to my motives and integrity in pursuing the claim.
Things started to get heated and my wife was obviously upset and
extremely agitated; she then started to tidy away our papers and the Judge
advised that it would be in our interests to sit down, listen to the costs
application and respond to it. Whether there would have been any time for us
to do that in a satisfactory manner, given that there was only 10 minutes or so
of court time remaining and Mr Burns obviously still had a lot to say, is a
moot point.
My wife then left the room and I followed her shortly thereafter
– as I was worried about her condition – and in such haste that I left one of
our document folders behind.”
29.
Mr Burns in his affidavit did not take
issue with much of what was said by Mrs Drysdale and the Claimant, although he
denied that he was insulting abusive or provocative in any way and said that
Mrs Drysdale had been abusive and disruptive throughout the hearing
particularly at the end. He did not agree that the process of withdrawal and
dismissal took only ten seconds, but he said that it took place “quickly but in
a measured and unrushed fashion”. He said that he saw no outward or visible
sign of Mrs Drysdale being ill or suffering from any debility. She made no
reference to illness. She appeared to leave during the costs application
because she was angry that a costs application was being made and did not want
to listen to it, rather than because she was feeling ill. He said that the
Claimant and Mrs Drysdale remained in the Tribunal room for about 5 minutes
after the claim had been dismissed (while he was making the costs
application). Neither stated that they wished to change their minds about the
withdrawal of the claim. He accepted that in substance the Claimant had said
the words attributed to him by Mrs Drysdale in her affidavit.
30.
Mr Bird, one of the lay members, said
that when Mrs Drysdale withdrew the claim “she was clearly angry, but she was
in control and certainly articulate. There was no doubt in my mind that she
was aware of the implications of what she was doing”. He also recalled that
Mrs Drysdale had often interrupted cross examination despite being asked not to
do so. He said she was treated courteously and professionally by the Tribunal.
31.
Mr Potter, the other lay member, said:
“Mrs Drysdale on behalf of the claimant very clearly stated that
she wished to withdraw the application on his behalf. The Judge asked her at
least once to confirm that was what she wanted and she said it was....
We had been advised that Mrs Drysdale was a diabetic and this
had featured in the evidence given by the claimant...... Mrs Drysdale was
clearly angry and outspoken at the time the Hearing was ending but she did not,
to my recollection, say she was unwell and needed a further break to recover or
collect her senses.
I do not believe Mr Drysdale was specifically asked to confirm
separately that he wished to withdraw his claim but throughout the Hearing Mrs
Drysdale had made it clear, as she was entitled to do, that she was his
representative and spoke on Mr Drysdale’s behalf. More importantly perhaps, Mr
Drysdale made no attempt to restrain or modify what Mrs Drysdale said even when
the Judge asked her to confirm she was seeking to withdraw the claim.”
32.
It seems to us that there is little if
any dispute as to the facts which are central to the appeal. We did not think
any of the facts were sufficiently in issue to call for oral evidence and
cross-examination; and there was no application for cross-examination by either
side. It is not necessary to make findings about every matter of detail in the
evidence we have; and while we received detailed submissions about some aspects
of what took place we do not think any useful purpose would be served by
setting out submissions on questions of fact. Our findings on what appear to
us to be the key matters are set out in the following paragraphs.
33.
Cross-examination of the Claimant took place until about 3.30 pm.
During that cross examination Mrs Drysdale had made what she describes as
“applications and objections” which were refused. At 3.30pm there was a short
break at the request of the Claimant. It was plain by this stage that the
hearing was not going to be completed that day. The matter was discussed when
the hearing resumed: two further days were allotted – 20 and 21 February 2012.
This was not welcome to the Claimant or Mrs Drysdale. The Employment Judge
also said that they would not sit beyond 4.45 pm.
34.
Re-examination then took place. Mrs Drysdale re-examined the Claimant
for about 40 minutes. During this time she repeatedly asked leading questions
of the Claimant – which the Employment Judge explained were not appropriate.
At about 4.35 the Employment Judge asked how much longer she would be. Mrs
Drysdale was reluctant to continue re-examination. She asked what was to
happen next. As she knew, there were three witnesses to be called on behalf of
the Respondent. She was told that the hearing would be resuming on 20 February
– the date already fixed some time earlier.
35.
At this time Mrs Drysdale said that she wished to withdraw the claim.
The Employment Judge asked her to confirm that this was what she wished. She
did so. Counsel for the Respondent applied for the proceedings to be dismissed
in the light of the withdrawal. The Tribunal briefly conferred and granted the
application.
36.
Counsel for the Respondent then made an application for costs. During
this application Mrs Drysdale was visibly angry, repeatedly interrupted
counsel, and was asked by the Employment Judge not to interrupt and to listen
to the application. The Claimant joined her; they left the room while the
costs application was still being made.
37.
The withdrawal by Mrs Drysdale, the application to dismiss and the
decision of the ET took only a short length of time. No-one was measuring the
time: it is impossible to be as precise as Mrs Drysdale suggests, but it is
reasonable to conclude, and we find, that it will have taken substantially less
than a minute. The subsequent period, until Mrs Drysdale and the Claimant left
the room, is again incapable of precise measurement: but it is reasonable to
conclude, and we find, that it was probably of the order of 4 or 5 minutes.
38.
The Claimant was not asked by the ET whether he endorsed Mrs Drysdale’s
withdrawal of the claim. However, at no time during the hearing before he left
did he inform the ET that the claim had been withdrawn without his authority or
that he wished to revisit the question of withdrawal. At no time during the
hearing before he left did either he or Mrs Drysdale say to the ET that she was
unwell or that the withdrawal had been made because she was unwell.
39.
When he left the Claimant did speak to
the ET, saying “Thank you gentlemen for your time, thank you for your efforts;
I’m sorry that we haven’t come to a good resolution in this matter. Thank
you!” He did not say that the claim had been withdrawn without his authority
or that he wished to revisit the question of withdrawal. Nor did he say that
he was worried about his wife’s health.
Submissions
40.
The Claimant attended the hearing of the
appeal. He was again represented by Mrs Drysdale. It would seem curious to a
practitioner in the civil and criminal courts that the Claimant should be
represented on appeal by the very person who was said to have acted contrary to
his interests at the hearing below. It was, however, the Claimant’s right
before the EAT to be represented by the person of his choice: see section
29(1)(c) of the Employment Tribunals Act 1996.
41.
Mrs Drysdale placed substantial emphasis upon the decision of the Court
of Appeal in Gee v Shell UK Limited [2003] IRLR 82. She
acknowledged that as a general rule withdrawal took effect immediately: she
drew our attention to Khan v Heywood & Middleton Primary Care Trust
[2007] ICR 24 and Silva-Douglas v London School of Economics and
Political Sciences UKEAT/0075/07. But she submitted that where the
withdrawal took place in consequence of an unfair and oppressive approach by
the ET, the EAT was entitled to intervene and set aside the withdrawal: see Gee
at paragraph 20.
42.
Mrs Drysdale submitted that the ET had indeed behaved unfairly and
oppressively. She submitted that if it was apparent to the ET that the
Claimant did not intend to abandon his claim or if there was good reason to
suppose that the Claimant and his representative were in disagreement with each
other or were under some pressure to withdraw the claim, the ET should have
satisfied itself that the Claimant had acted voluntarily or that his representative
was indeed expressing the Claimant’s will. She placed reliance on the judgment
of the EAT in Adese v Coral Racing UKEAT/0760/04 in support of
the proposition that in some circumstances the ET would be under a duty to
enquire into these matters. She submitted that it must have been clear in the
circumstances to the ET that she was not acting on the Claimant’s instructions
or “with aforethought” when she withdrew the claim. In the absence of some
intervention or enquiry by the ET the Claimant had no time to understand what
was happening or articulate opposition to the withdrawal of the claim or to the
subsequent dismissal of the claim.
43.
Mrs Drysdale further submitted that the ET did not consider the effect
of her medical condition and stress. She did not suggest that this was the
sole reason for the withdrawal; but she said that it was a contributory
factor. She argued that it should have been plain to the ET that she was no
longer fit to take such a decision by reason of her condition. She described
this as a “mishap”, borrowing in this respect language sometimes found in cases
concerned with review under rule 34 of the Employment Tribunal Rules of
Procedure.
44.
On the question of costs, while Mrs Drysdale acknowledged that she and
the Claimant absented themselves during the application, she submitted that in
all the circumstances the ET should nevertheless have afforded them an
opportunity to make submissions on that question.
45.
In an annex to her skeleton argument Mrs Drysdale made a variety of complaints
about the ET’s earlier hearing and procedure which, she argued, amounted to
unfair or unequal treatment by the ET. These are not encompassed by the
grounds of appeal which we have quoted; the ET’s views and comments on them
were not sought; but we will say something about them later in this judgment.
46.
Mrs Drysdale also took a point, not in her Notice of Appeal, concerning
rule 25(4) of the Employment Tribunal Rules of Procedure. She submitted that
the ET was not entitled to give judgment dismissing the appeal in the absence
of a written application by the Respondent.
47.
In his submissions on behalf of the Respondent, Mr Burns carefully
distinguished between two aspects of the case, both of which might be engaged
by the use of the word “capacity” in paragraph 18 of the Notice of Appeal.
48.
On the one hand, “capacity” might be concerned with the mental capacity
of Mrs Drysdale to take a decision on the Claimant’s behalf. He submitted that
Mrs Drysdale had the requisite mental capacity to represent the Claimant. He
referred by analogy to tests applicable in the criminal courts (Pritchard
[1836] 7 Car & P 303 at 304) and in the law of contract (for example, Imperial
Loan Company v Stone [1892] 1 QB 599 at 604). Since Mrs Drysdale was
capable of understanding the process and understanding what she was doing, she
did not lack the requisite mental capacity.
49.
On the other hand “capacity” might be concerned with the question
whether Mrs Drysdale had authority to withdraw the claim. Mr Burns submitted
that Mrs Drysdale had actual authority to do all the things which a
representative could do, including the withdrawal of the claim. Further, he
submitted that the Claimant acknowledged, endorsed and ratified what his
representative had done: his closing words showed that he was well aware that
his claim was over.
50.
Mr Burns submitted that save in exceptional circumstances the ET was
under no duty to make enquiries of the Claimant as to whether his
representative was acting with his authority. The task of the ET was to be an
impartial umpire: it was not for the ET to intervene and make enquiries as to
what transpired between the Claimant and his representative. He referred to
and relied on Adese at paragraph 96. Exceptional circumstances
would exist, he submitted, only if there was something akin to open conflict,
manifest at the time of withdrawal, between a claimant and his representative.
There was no such state of affairs in this case.
51.
Mr Burns further submitted that once proceedings had been withdrawn the
ET had no further jurisdiction to allow the withdrawal to be withdrawn: Khan
at paragraph 74.
52.
On the question of costs, Mr Burns submitted that the Claimant and Mrs
Drysdale wilfully and defiantly absented themselves from the hearing; and that
fairness did not require the ET, in those circumstances, to afford them any
further opportunity to make representations.
53.
Mr Burns submitted that the point taken concerning rule 25(4) of the
Employment Tribunal Rules of Procedure was erroneous. Rule 25(4) was not intended
to prevent an application being made when the withdrawal took place at a
hearing attended by both parties. The requirement in rule 25(4) for a written
application within 28 days was to set a time limit, not to prevent an earlier
application.
54.
Finally, as regards the complaints made
relating to the ET’s earlier conduct of the hearing and earlier procedure, he
submitted that the complaints were not covered by the Notice of Appeal and not
the subject of any enquiry to the ET. It would be wrong in principle to allow
such complaints to be raised at this stage.
Statutory provisions
55.
The right of a litigant to be represented
before the ET by “any …. person whom he desires to represent him” is enshrined
in primary legislation. Section 6(1) of the Employment Tribunals Act 1996
provides:
“6 Conduct of hearings
(1) A person may appear before an [employment tribunal] in
person or be represented by—
(a) counsel or a solicitor,
(b) a representative of a trade union
or an employers' association, or
(c) any other person whom he desires
to represent him.”
56.
The procedure to be adopted before the ET
is regulated by the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004. These make provision for an overriding
objective in the following terms.
“3 Overriding objective
(1) The overriding
objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6
is to enable tribunals and [Employment Judges] to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable:—
(a) ensuring that the parties are on
an equal footing;
(b) dealing with the case in ways
which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with
expeditiously and fairly; and
(d) saving expense.
(3) A tribunal or Employment Judge shall seek to give effect to
the overriding objective when it or he:
(a) exercises any power given to it
or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or
(b) interprets these Regulations or
any rule in Schedules 1, 2, 3, 4, 5 and 6.]
(4) The parties shall assist the tribunal or the [Employment
Judge] to further the overriding objective.”
57.
The 2004 Regulations contain, in Schedule
1, Employment Tribunal Rules of Procedure which were applicable to the
Claimant’s claim and in particular to the hearing which took place in October
2011. Rule 14 gives wide discretion to the ET in the management of hearings.
It provides, so far as relevant -
“(2) So far as it appears appropriate to do so, the Employment
Judge or tribunal shall seek to avoid formality in his or its proceedings and
shall not be bound by any enactment or rule of law relating to the
admissibility of evidence in proceedings before the courts.
(3) The Employment Judge or tribunal (as the case may be) shall
make such enquiries of persons appearing before him or it and of witnesses as
he or it considers appropriate and shall otherwise conduct the hearing in such
manner as he or it considers most appropriate for the clarification of the
issues and generally for the just handling of the proceedings.”
58.
Rule 25 of the Rules of Procedure confers
upon a claimant with a right to withdraw proceedings. In its present form it
provides as follows.
“25 Right to withdraw proceedings
(1) A claimant may withdraw all or part of his claim at any time
– this may be done either orally at a hearing or in writing in accordance with
paragraph (2).
(2) To withdraw a claim or part of one in writing the claimant
must inform the Employment Tribunal Office of the claim or the parts of it
which are to be withdrawn. Where there is more than one respondent the
notification must specify against which respondents the claim is being
withdrawn.
(3) The Secretary shall inform all other parties of the
withdrawal. Withdrawal takes effect on the date on which the Employment
Tribunal Office (in the case of written notifications) or the tribunal (in the
case of oral notification) receives notice of it and where the whole claim is
withdrawn, subject to paragraph (4), proceedings are brought to an end against
the relevant respondent on that date. Withdrawal does not affect proceedings as
to costs, preparation time or wasted costs.
(4) Where a claim has been withdrawn, a respondent may make an
application to have the proceedings against him dismissed. Such an application
must be made by the respondent in writing to the Employment Tribunal Office
within 28 days of the notice of the withdrawal being sent to the respondent. If
the respondent's application is granted and the proceedings are dismissed, the
claimant may not commence a further claim against the respondent for the same,
or substantially the same, cause of action (unless the decision to dismiss is
successfully reviewed or appealed).
(5) The time limit in paragraph (4) may be extended by [an
Employment Judge] if he considers it just and equitable to do so.”
59.
The reference to a review contained in
rule 25(4) is a reference to rule 34 of the Rules. If an application to
dismiss proceedings is granted the result will be a judgment under rule 28(1)
(a judgment being the appropriate means of finally determining proceedings or
an issue in proceedings – see rule 28(1)(a)). Such a judgment can be reviewed
under rule 34 on various grounds, including the ground that the interests of
justice require a review.
60.
The procedure to be followed upon an application for costs is dealt with
in rule 38 of the Rules. So far as material rule 38 provides:
(7) A party may apply for a costs order
to be made at any time during the proceedings. An application may be made at
the end of a hearing, or in writing to the Employment Tribunal Office. An
application for costs which is received by the Employment Tribunal Office later
than 28 days from the issuing of the judgment determining the claim shall not
be accepted or considered by a tribunal or [Employment Judge] unless it or he
considers that it is in the interests of justice to do so.
(9) No costs order shall be made unless
the Secretary has sent notice to the party against whom the order may be made
giving him the opportunity to give reasons why the order should not be made.
This paragraph shall not be taken to require the Secretary to send notice to
that party if the party has been given an opportunity to give reasons orally to
the Employment Judge or tribunal as to why the order should not be made.
Discussion and conclusions
61.
It is, we think, helpful to keep in mind
and analyse separately the three stages of the process before the ET:
withdrawal, dismissal and the order for costs.
Withdrawal
62.
Rule 25 of the Rules of Procedure is not
altogether easy to construe and apply. Its drafting has been described as
“lamentable” and “ambiguous: see Khan at paragraph 78 (Wall LJ).
It has given rise to a number of appeals; and rule 25(4) has been amended to
spell out its purpose more clearly. As regards withdrawal of the whole claim,
however, two things are clear. Firstly, withdrawal may be made orally at a
hearing and takes effect when the ET is notified of the withdrawal: see rule
25(1) and (3). Secondly, the effect of withdrawal is to bring the proceedings
to an end on that date: see rule 25(3). This was conclusively established in Khan,
where Wall LJ said:
“74 ...... the words “brought to an end” mean what they say.
Those particular proceedings have indeed been brought to an end, and cannot be
revived against a respondent. That does not mean, however, that absent
dismissal a fresh claim on the same facts cannot be made.
75 I am equally unable to accept Miss Sen Gupta’s alternative
proposition that other rules in the 2004 Regulations enable the ET to permit a
claimant to revive a withdrawn claim. ....”
63.
Even though withdrawal brings proceedings
to an end before the ET, we are satisfied that the EAT retains the power to set
aside the withdrawal and give consequential directions (for example for a fresh
hearing below) if the withdrawal has been caused by reason of an error of law
on the part of the ET or because the ET has failed in its duty to secure a fair
hearing below. In Gee v Shell UK Ltd the ET had placed unfair
and oppressive pressure on a claimant by issuing an unjustified costs warning.
It was held by the EAT and by the Court of Appeal that this pressure had left
the claimant with no alternative but to withdraw and that the EAT was entitled
to relieve her from the consequences of this unfair pressure by the ET: see the
judgment of Scott Baker LJ at paragraphs 28-30.
64.
Gee was decided at a time before rule 25 existed in its
present form. Earlier versions of the Rules did not provide expressly that withdrawal
of itself brought proceedings to an end. But this seems to us to make no
difference. The EAT is empowered to deal with any question of law arising in
any proceedings before an ET, and to remit the case to the ET: see section
21(1) and 35(1) of the Employment Tribunals Act 1996. If the withdrawal
was consequent upon an error of law or unfairness by the ET then the EAT is
empowered to intervene.
65.
The question is therefore: was the withdrawal caused by a failure on the
part of the ET to secure a fair hearing for the Claimant, or otherwise by an
error of law on the part of the ET? If it was, the Claimant will be entitled
to an order from the EAT setting at nought not only the dismissal but the
underlying withdrawal.
66.
As we have seen, section 6 of the Employment Tribunals Act 1996
grants to a litigant before the ET a right to appear in person or by a lay
representative of his choice. A great deal of the ET’s work concerns
self-represented litigants; and a substantial element also concerns litigants
who choose to be represented by persons with no qualification.
67.
Up to a point the ET can be expected to assist such persons in such
matters as clarifying the issues and following the ET’s procedure correctly.
But the extent to which the ET gives assistance to a self represented litigant
or to an unqualified representative is very much a matter for the judgment of
the ET. Care needs to be taken before imposing upon an ET a legal duty to
intervene where it has not done so.
68.
The need for caution in this area is to our mind exemplified by the
decision of the Court of Appeal in Mensah v East Hertfordshire NHS Trust
[1998] IRLR 531, discussed and applied in Adese v Coral Racing upon
which Mrs Drysdale relied.
69.
In Mensah the Court of Appeal cited with approval a dictum
of Knox J in Dimtsu v Westminster City Council [1991] IRLR 450 (a
case where a lay representative had not made an application to extend time in a
case where there was an issue as to whether a claim form had been presented in
time). Knox J said (paragraph 14):
“.. the majority would not wish to cast any doubt on the
propriety of the long-established practice whereby chairmen of Industrial
Tribunals give assistance where it is needed in the formulation and
presentation of the cases of persons before them, be they applicant or
respondent, who have not got the benefit of professional representation and
indeed on some occasions when they have such representation. But this must be a
matter for the judgment of the Industrial Tribunal in each individual case and
should not be erected into an obligation which if not fully complied with leads
to a conclusion that an error in law has been committed.”
70.
In Mensah Peter Gibson LJ
endorsed this approach (see paragraph 83) and Sir Christopher Slade said
(paragraph 84):
“I too would strongly encourage industrial tribunals to be as
helpful as possible to litigants in formulating and presenting their cases,
particularly if appearing in person. There must, however, be a limit to the
indulgence which even litigants in person can reasonably expect. The
desirability in principle of giving such assistance must always be balanced
against the need to avoid injustice or hardship to the other party on the
particular facts of each case. This, in my judgment, is a very good reason for
holding that the manner and extent of such assistance should generally be
treated as a matter for the judgment of the tribunal and not as subject to
rigid rules of law.”
71.
In our judgment, applying this approach,
we should be cautious before imposing a duty upon the ET to intervene in any
way in Mrs Drysdale’s notification of withdrawal, either as a matter of law or
as a matter of fairness.
72.
We deal firstly with Mrs Drysdale’s submission (which, as we have said,
is not a ground of appeal as such) that earlier decisions and actions of the ET
were such as to put unfair pressure upon her to withdraw the claim. We reject
this submission without hesitation. The various matters to which she refers in
Appendix 1 to her skeleton argument seem to us to be ordinary matters of case
management, well within the remit of the ET, giving rise to no question of law
or unfairness to the Claimant. In any event, her grounds of appeal did not
truly encompass this submission.
73.
We deal next with Mrs Drysdale’s submission that the ET ought to have
intervened because it should have considered the effect of her medical
condition and stress. We reject this submission. Neither Mrs Drysdale nor
the Claimant – who was present and knew her better than the ET could possibly
know her – suggested to the ET that the withdrawal was in any way caused by the
effect of her medical condition and stress. We see no basis upon which it can
be said that the ET acted unfairly or was under any duty to intervene to
enquire whether the withdrawal was caused by her medical condition or by
stress.
74.
We doubt whether the reference to “capacity” in the Notice of Appeal was
intended to suggest that Mrs Drysdale lacked the mental capacity to act for the
Claimant or to withdraw the claim. We do not think it is necessary or
appropriate for us to discuss in any extended way what test for mental capacity
should be applicable in the case of a chosen representative in ET proceedings.
We cannot envisage any test by virtue of which Mrs Drysdale would be held to
lack mental capacity, still less any duty upon the ET to investigate that issue
in the circumstances which obtained at the hearing.
75.
We deal next with Mrs Drysdale’s submission that the ET ought to have
intervened because it should have appreciated that she was acting without
authority.
76.
In our judgment she was not acting without authority. The Claimant had
appointed her as his representative. She acted for him prior to the hearing
and throughout the hearing. He did not limit her authority to represent him in
any way. The Claimant was entitled by statute to be represented by a person of
his choice, and the ET was bound to respect his choice.
77.
Whether the Claimant agreed with the course which Mrs Drysdale took is
not the same as the question whether she had authority to take the course.
There can be no general duty upon the ET to enquire as to whether a litigant
agrees with the course taken by his duly appointed representative. If the law
were otherwise – and the ET was bound to enquire into the authority of a
representative whenever the representative took a decision with which it
thought the litigant might not agree – the practical effect would be
considerable and undesirable. It would in fact undermine a claimant’s right to
be represented by a person of his choice. A decision to withdraw can be
communicated by a representative by email (as in De Silva): we do
not think that the ET is under any duty to enquire into the authority of the
representative to withdraw if the representative’s appointment is in no doubt.
Representatives of all kinds – legally qualified and unqualified – will be
called upon during hearings to take decisions which may involve withdrawing
claims or conceding points. We do not think the ET is under any duty to
enquire into the representative’s authority to do so unless the claimant at the
time disavows the authority.
78.
We would add one further point, which is a different point from the
question whether the lay representative has authority to withdraw the claim and
which applies as much to self representing parties themselves as to chosen lay
representatives. There is no doubt sometimes a risk that a self representing
litigant, or a chosen lay representative of a litigant, will act hastily in
withdrawing a claim under the force of some emotion such as disappointment,
irritation or even (to adopt a phrase which Mrs Drysdale used in her
submissions to us) a “fit of anger”. We think that an ET is entitled to make
such enquiries as appear fit to it to check whether the self representing
litigant or chosen lay representative means what he says: see Adese at
paragraph 99. But the extent of such enquiries is very much a matter for the
ET.
79.
In this case the Employment Judge checked with Mrs Drysdale whether she
meant to withdraw the claim; she said she did; and the Claimant did not
demur. The Employment Judge was entitled to check the position with her; but
we do not think there was any legal duty upon the ET in the circumstances of
this case to go any further. In accordance with the approach in Dimtsu
and Mensah this seems to us to be very much a matter for the
judgment of the ET which will understand and have a “feel” for the case which
appellate tribunal can never have. To impose any duty on the ET to go further
may indeed cause injustice or hardship to the other party. If detailed
enquiries by the ET lead a claimant to assert that a withdrawal was unintended
or unauthorised, then there is a risk of time consuming “litigation within
litigation” to determine a matter which will have arisen through no fault of
the opposite party. Moreover, if the Claimant would otherwise have withdrawn a
claim which had little or no prospect of success, the opposite party might be
put to substantial additional expense.
80.
For these reasons we conclude that the
withdrawal was not vitiated by any error of law or unfairness on the part of
the ET.
Dismissal
81.
The purpose of dismissal under rule 25
was explained by the Appeal Tribunal in a passage in Verdin v Harrods
Limited [2006] ICR 396 at paragraphs 35-40 – a passage approved by the
Court of Appeal in Khan (see paragraphs 44 and 72). It is
sufficient to quote paragraphs 39-40.
“39. So a party who receives a notification of withdrawal of the
whole proceedings, and wishes to establish once and for all that there is to be
no further litigation on the same questions, may apply for dismissal. The
subsequent hearing will then concentrate on the question, which Mummery LJ
identified in Ako. Is the withdrawing party intending to abandon the
claim? If the withdrawing party is intending to resurrect the claim in fresh
proceedings, would it be an abuse of the process to allow that to occur? If the
answer to either of these questions is yes, then it will be just to dismiss the
proceedings. If the answer to both these questions is no, it will be unjust to
dismiss the proceedings.
40. I agree with a submission made by Mr Nicholls, that where
one party withdraws the other party will generally be entitled to have the
proceedings dismissed. This is because the party who withdraws will generally
have no intention of resurrecting the claim again, or if he does will generally
have no good reason for doing so. There is sometimes a temptation for a
litigant, as the day of battle approaches, to withdraw a claim in the hope of being
better prepared on another occasion. That will be unacceptable. Tribunals will
no doubt be astute to prevent withdrawal being used as an impermissible
substitute for an application for adjournment. Occasionally, however, there
will be good reason for withdrawing and bringing a claim in a different way.”
82.
Once granted, as we have held, that the
withdrawal of the claim by the Claimant’s chosen representative was not
vitiated by any unfairness or error of law on the part of the ET, it inevitably
follows that the Respondent was entitled to an order dismissing the claim.
The Claimant’s representative indeed intended when withdrawing the claim to
abandon it: this was not a case where she withdrew the claim in order to
advance it in other proceedings, and it would have been an abuse of the process
for the Claimant to do so. It is true that dismissal of the proceedings in
this case followed hard upon the confirmation by the Claimant’s representative
that she did indeed withdraw them. In this case, however, dismissal was
inevitable and it was no injustice to the Claimant or his representative to
deal with the matter there and then.
83.
This leaves the submission of Mrs
Drysdale that the ET should not have entertained the application to dismiss
because it was not made in writing to the ET office within 28 days. The
drafting of rule 25 is – as we have already observed – problematic in places.
But we think it is plain that the second sentence of rule 25(4) is intended to
impose a time limit on an application to dismiss, not to prevent an application
to dismiss being made orally at the hearing where the claim has been
withdrawn. We can discern no valid purpose in requiring a written application
to the ET office when the parties are present at a hearing and the matter can
be addressed there and then. To require a written application, with the
possibility that a further hearing may then be necessary, would be inimical to
the overriding objective, which includes dealing with cases expeditiously and
saving expense. Construing rule 25 in accordance with the overriding objective
(see reg. 3(3)(b) of the 2004 Regulations) we consider that it does not
preclude the ET from dealing with the question of dismissal on an oral
application made at a hearing when a claim has been withdrawn. If we had
thought there was any substance in Mrs Drysdale’s submission we would at least
have entertained an application to amend the grounds of appeal: but we consider
that it has no force.
Costs
84.
We can deal much more briefly with the
second ground of appeal.
85.
It is plain that the Claimant and Mrs Drysdale, though asked to stay and
listen to the application for costs, chose to leave in the course of it. Mrs
Drysdale moreover, prior to leaving, had repeatedly interrupted the making of
the application and had effectively ignored the Employment Judge’s request to
listen to the application. Neither the Claimant nor Mrs Drysdale sought any
adjournment of the application. In these circumstances it was not unfair for
the ET to continue with the hearing of the application in the absence of the
Claimant and the Claimant’s representative.
86.
The Respondent was entitled to make an application for costs at the end
of the hearing: see rule 38(7) of the Rules of Procedure. Where the ET begins
to hear an application for costs orally it is implicit that it is affording the
opposite party an opportunity to make oral submissions. If the opposite party
chooses to leave rather than avail itself of that opportunity, we do not think
the ET is under any further duty to afford the opposite party an opportunity to
make submissions.
87.
It is true that in this case time was short: the ET had said it would
not sit beyond 4.45pm. Because the Claimant and his representative left
abruptly, we will never know how the ET would have dealt with the shortage of
time. It might have thought it best to complete the matter that day,
postponing its other engagements: it is one thing to finish at 4.45 pm when a
case is bound to last another two days, another thing altogether to do so when
by listening to submissions the whole case might be finished. It might have
allowed a further short hearing on another day; or after discussion with the
parties arranged a time table for written submissions. In our judgment,
however, the ET was under no duty to afford a further opportunity to make
submissions when the Claimant and his representative had left abruptly during
the course of an application for costs, contrary to the ET’s plainly expressed
wishes.
88.
The Claimant has not sought the ET’s reasons for its order for costs.
She has not satisfied us that the ET erred in law in any way in making the
order which it made.
89.
For these reasons the appeal will be
dismissed.
