Aziz v FDA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Dyson,Lord Justice Richards |
| Judgment Date | 05 March 2010 |
| Neutral Citation | [2010] EWCA Civ 304 |
| Docket Number | Case No: A2/2009/0526 (A) + 0592 (B) + 0526 + 0592 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2010 |
[2010] EWCA Civ 304
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Before: Lord Justice Dyson
Lord Justice Richards
and
Lord Justice Jackson
Case No: A2/2009/0526 (A) + 0592 (B) + 0526 + 0592
The Appellant appeared in person.
Ms A Reindorf (instructed by Russell Jones and Walker) appeared on behalf of the Respondent.
(As Approved)
Lord Justice Jackson:
This judgment is in five parts, namely Part 1 Introduction, Part 2 The Facts, Part 3 The Appeal to the Court of Appeal, Part 4 The Law, Part 5 Decision on the Grounds of Appeal.
Part 1. Introduction
This is an appeal against a decision of the Employment Appeal Tribunal to the effect that certain heads of claim are time—barred. The appellant, Ms Halima Aziz, is claimant in the employment tribunal, appellant in the appeal to the Employment Appeal Tribunal and appellant in this court. I shall refer to her as Ms Aziz. The respondent in the employment tribunal proceedings and in the appeal to this court is the First Division Association, generally known as “FDA”. FDA is a trade union whose members include many employees of the Crown Prosecution Service.
I shall use a number of abbreviations in this judgment. I shall refer to the Crown Prosecution Service as “CPS”. I shall refer to the employment tribunal as “ET”. I shall refer to the Employment Appeal Tribunal as “EAT”. I shall refer to certain proceedings brought by Ms Aziz in the Leeds Employment Tribunal as “the Leeds proceedings”. I shall refer to certain proceedings brought by Ms Aziz in the London South Employment Tribunal as “the London proceedings”. I shall refer to the Race Relations Act 1976 as “the 1976 Act”.
Section 68 of the 1976 Act provides so far as material:
“1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of—
(a) the period of three months beginning when the act complained of was done;
…………..
6) a court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
7) For the purposes of this section –
…………..
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it;
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.”
After those brief introductory remarks I must now turn to the facts.
Part 2. The Facts
Ms Aziz is a solicitor and a senior crown prosecutor employed by the CPS. Between 1995 and 2001 Ms Aziz was based at the Bradford branch of the CPS. On 10 October 2001 Ms Aziz was suspended pending an inquiry into allegations against her of gross misconduct. The individuals who were involved in the decision to suspend were Neil Franklin (Director of Human Resources), Nigel Cowgill (Head of Bradford Criminal Justice Unit) and Jean Ashton (Area Business Manager). Following the meeting at which Ms Aziz was suspended, she was escorted to her desk, required to collect her possessions and to leave the premises. As the CPS office was open plan, Ms Aziz understandably found this a deeply humiliating experience.
By 14 October 2001 Mr Franklin had reached the conclusion that suspension was not necessary. He invited Ms Aziz to come to the office in order to discuss her transfer to a different branch of the CPS. By that time, however, Ms Aziz was suffering from depression and unfit for work.
Over the next few months the allegations against Ms Aziz of gross misconduct were investigated and found to be without substance. Although Ms Aziz was vindicated by the investigation, she was understandably aggrieved by the circumstances in which she had been suspended.
On 21 December 2001 Ms Aziz commenced proceedings against the CPS in the employment tribunal at Leeds (“the Leeds proceedings”). In the Leeds proceedings Ms Aziz was alleging racial discrimination against her by the CPS.
In early 2002 Ms Aziz asked her trade union, FDA, to assist her in the Leeds proceedings. In a letter to Ms Aziz dated 28 March 2002, Mr Dave Penman an official of FDA stated:
“We spoke a number of weeks ago regarding your Employment Tribunal Applications and Disciplinary investigation.
At this time you indicated that you wanted FDA assistance on your case. I explained that as you had submitted Employment Tribunal Applications before seeking advice from FDA, we would not normally support further legal action.
However due to the circumstances of your case and your ill—health, I agreed that I would submit your papers for consideration by our legal advisers.”
Mr Penman duly consulted Thompsons, who were the union's solicitors. Mr Andrew James of Thompsons investigated the matter and had a meeting with Ms Aziz. By letter dated 27 May 2002 Mr James delivered his advice both to FDA and to Ms Aziz. Taking matters shortly, that advice was pessimistic.
On the basis of that advice FDA decided not to fund Ms Aziz's case. There is an issue as to how FDA's decision was communicated to Ms Aziz. Ms Aziz contends that FDA simply stopped communicating with her. She telephoned FDA and left messages requesting Mr Penman to ring her back, but he never did so. FDA does not admit this allegation. However, FDA also states that after such a long lapse of time Mr Penman cannot now recall whether Ms Aziz left telephone messages to which he failed to respond.
One thing, however, is clear. In the early summer of 2002 FDA ceased assisting or advising Ms Aziz in relation to the Leeds proceedings. Ms Aziz was aware that FDA was no longer assisting or advising her in relation to those proceedings. According to her Particulars of Claim in the London proceedings, after the summer of 2002 Ms Aziz had no further dealings with FDA over the next three years.
The Leeds proceedings moved forward at a leisurely pace. Ms Aziz obtained legal representation. There was a hearing lasting nine days in February 2003 and March 2004. On 11 June 2004 the employment tribunal at Leeds gave its decision in favour of Ms Aziz. The CPS appealed. On 24 May 2005 the EAT gave judgment reversing the decision of the employment tribunal. In June 2005 Ms Aziz filed a notice of appeal to the Court of Appeal, seeking to overturn the decision of the EAT.
In July 2005 Ms Aziz contacted FDA seeking advice about the correct interpretation of the CPS disciplinary code. This matter would be important in relation to her appeal. On 12 July 2005 Mr Paul Neilson, the National Officer of FDA, telephoned Ms Aziz. Following that telephone conversation he sent a letter to Ms Aziz in the following terms:
“As stated on the phone, I am in no position to comment on the merits of your case, either with the CPS or the employment tribunal and can only comment on whether or not CPS appeared to follow procedure.
CPS disciplinary procedure allows for suspension where allegations of gross misconduct have been made. It states that the 'line manager will usually take the following action…….'. The use of the term 'usually' does not of course rule out them not doing so and I am in no position to comment on what usually does or does not happen. Usual action could involve preliminary inquiries 'if necessary' and contacting Personnel before suspension. However, none of this prevents an employer from suspending a member of staff with immediate effect, if the allegation is serious enough, pending an investigation.
Any decision to suspend is likely to be contentious. However, we would only have recourse to action if a suspension fell outside the range of reasonable responses that a reasonable employer could take. In view of the seriousness of the allegations and where they come from, it is my opinion that the CPS action to suspend is likely to be deemed to fall within that reasonable response. Looking back at your file, I note that Thompsons also felt it would fall within that range. This of course is not to say that I agree with that action or that it should have happened, merely that they are allowed to do so.
Their letter to you informing you of your suspension follows the template laid down in the procedure and points out that suspension is a neutral act and not an indication of guilt. You were of course exonerated of all charges in the subsequent investigation.
As stated earlier I am in no position to comment on the merits or details of your case or on any exchanges you have had with the CPS. My comments are purely restricted to whether or not CPS could act in the way they did in suspending you.”
After consulting FDA Ms Aziz continued to conduct her appeal as a litigant in person. The CPS was represented by leading and junior counsel. Ms Aziz contended that the employment tribunal's findings of fact were justified; that the ET had correctly construed the disciplinary code; and also that the EAT had erred in holding that the ET had misconstrued the code. Those submissions were successful. In its judgment dated 31 July 2006 the Court of Appeal allowed Ms Aziz's appeal and restored the decision of the employment tribunal: see Aziz v CPS [2006] EWCA Civ 1136. The Court of Appeal directed that the case be remitted...
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