Bennett v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LONGMORE,Lord Justice Sedley,Lord Justice Longmore,Lord Justice Ward |
| Judgment Date | 21 February 2002 |
| Neutral Citation | [2002] EWCA Civ 223,[2001] EWCA Civ 711 |
| Docket Number | Case No: A1/2001/0441,NO: A1/2001/0441 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2002 |
[2001] EWCA Civ 711
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Longmore
NO: A1/2001/0441
MR JOE SYKES (instructed by Philip Glah & Co, 259/260 Temple Chambers, Temple Avenue, London EC4Y 0HP) appeared on behalf of the Applicant
This is a most unfortunate case originated by a claimant in the Employment Tribunal; the applicant which was dismissed in the mid-1990s and began proceedings for racial discrimination and/or unfair dismissal.
The first tribunal after ten days hearing disqualified themselves because they considered that the representative of the applicant had accused the tribunal of racial bias. The matter was left in the air. There was then an application by the respondents to a second employment tribunal for an order striking the case out on account of the vexatious nature of the conduct of the appellant's representative. That application succeeded.
The matter then went to the Employment Appeal Tribunal which held that the first tribunal was wrong to have disqualified themselves and to stop the hearing after ten days, that there was therefore no ground for the invocation of the services of a second employment tribunal but that they themselves, the Employment Appeal Tribunal, having all the powers of an employment appeal tribunal, would decide whether the case should be struck out, and they did decide that the case should be struck out, thereby effectively agreeing with the decision of the second tribunal.
Although this is a second-tier appeal, it seems to me it is right to grant permission to appeal. It is in my judgment arguable first that questions of principle as to the correct approach to both the employment tribunal and the Employment Appeal Tribunal are in issue where a question is raised as to the possible bias of the tribunal, and, secondly, it is arguable that the consequences of allowing the appeal from the discontinuance order of the first employment tribunal were not fully or accurately addressed by the Employment Appeal Tribunal.
It is a most unfortunate fact that the applicant was dismissed many years ago, as she was, but the other unfortunate fact is that no hearing has yet been brought to a conclusion. Therefore, it seems to me that it would be right to grant permission to appeal in what I repeat is a very unfortunate case.
(Application to appeal allowed)
[2002] EWCA Civ 223
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT
APPEAL TRIBUNAL (His Honour Judge
Peter Clark).
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Longmore
Case No: A1/2001/0441
Mr. Joe Sykes (instructed by Philip Glah & Co.) for the Appellant
Mr. Andrew Burns (instructed by Legal Contract Services) for the Respondent
These cross-appeals arise out of some regrettable events which occurred in industrial tribunal proceedings as long ago as January 1997.
Events
It is not necessary to say more about the initial claim than that Mrs Bennett, who is black, had worked as a care manager for the London Borough of Southwark (LBS) from 1985 to September 1994, when she was dismissed. By then she had already, in August 1993, presented an originating application detailing a prolonged history of what she contended was race and sex discrimination. To this, following her dismissal, she added a further originating application adding allegations of victimisation. She gave consolidated particulars of the two claims, and they were listed for hearing on 1 July 1996 with a 10-day time allocation.
At the hearing, chaired by Mr Lamb, the applicant was represented, as 4she had been in the internal procedures, by Mr Errol Harry, who (relevantly) is black. He is himself a former employee of LBS and a regular lay representative in employment tribunals. The ten days were insufficient, and the hearing was adjourned part-heard to 27 January 1997 with an allocation of 8 more working days. On 27 January the applicant was absent, apparently suffering both from flu and from a bad back. Mr Harry sought an adjournment, but LBS opposed it and it was refused. The tribunal took into account the loss of allocated time and resources which would result from an adjournment; the expense to LBS; the further delay of many months; and the fact that the applicant had given her evidence and that Mr Harry could cross-examine the remaining LBS witnesses in her absence.
After lunch Mr Harry, who had by now spoken to Mrs Bennett and been told that she was unhappy with the case proceeding in her absence, reapplied for an adjournment. The tribunal gave him till next morning, when he renewed the application. He made two remarks in particular:
"If I were a white barrister I would not be treated in this way."
"If I were an Oxford-educated white barrister with a plummy voice I would not be put in this position."
The Tribunal, having retired to consider matters, concluded that they could not continue to hear a case on race discrimination in which they themselves had now been accused of racism. They returned and said that this was the case and that in consequence they were discharging themselves from further participation. They put the matter over to a fresh tribunal, leaving to that tribunal any application LBS might want to make to have the case struck out, and for costs.
The regional chairman directed relisting before a tribunal chaired by Mr Warren. Its sole remit was to decide whether to strike out the proceedings on the ground (spelt out in R 13(2)(e) of the Employment Tribunals Rules of Procedure 1993) that the manner in which the proceedings had been conducted was scandalous, frivolous or vexatious. The Warren tribunal sat on 30 May, and on 7 July 1997 promulgated a decision striking out the claims on the ground that Mr Harry's conduct of Mrs Bennett's case before the Lamb tribunal had been scandalous. They made a costs order for just under £500 against her on the ground of unreasonable conduct.
Mrs Bennett gave notice of appeal against the Warren tribunal's decision. It was out of time, but Morison P enlarged time and also, sensibly, gave both sides permission to appeal and cross-appeal out of time against the Lamb tribunal's decision which lay at the root of the Warren tribunal's decision. The main submissions that thus came before EAT were these: the applicant submitted that the Lamb tribunal should not have recused itself, at least without notice; but if that was right, LBS said the Warren tribunal decision should nevertheless stand, albeit it ought properly to have been made by the Lamb Tribunal. The EAT (Judge Peter Clarke presiding) elaborated the second issue in this way: "Should the cross-appeal by Southwark be allowed, and if so, ought we, exercising our powers under s. 35(1)(a) of the Employment Tribunals Act 1996, to affirm the decisions reached by the Warren tribunal?"
The EAT concluded, as I would, that the Lamb tribunal was wrong to recuse itself as and when it did. I will come to the reasons why in a little more detail later in this judgment. The critical question was therefore whether the decision to strike out the proceedings, predicated as it was on the Lamb tribunal's decision, could stand. The EAT rejected the applicant's submission that the right course was for the Lamb tribunal to reconvene and continue: this Judge Clarke considered to be precluded by the view the Lamb tribunal had arrived at, rightly or wrongly, as to its own ability to decide the case impartially. The alternatives were that the case should restart before a fresh tribunal or that the whole claim should be struck out. The EAT decided that the latter was the right course – in other words that the Warren tribunal had done the right thing, albeit in the wrong circumstances—and that in the exercise of EAT's own power to make any order an employment tribunal (here presumably the Lamb tribunal) could make the claims should be struck out. This appears to be the course they took, notwithstanding that in their final paragraph they said that they were dismissing the appeal against the Warren tribunal's decision. The EAT did not explain why it needed to exercise its own power rather than simply uphold the Warren tribunal's decision, but it must have been because, in the light of its first conclusion that the Lamb tribunal ought not to have recused itself, the Warren tribunal had been without authority to adjudicate.
With the permission of Longmore LJ Mrs Bennett now appeals against the eventual decision that her claims should be struck out, and LBS cross-appeals against the EAT's decision that the Lamb tribunal was wrong to recuse itself in the first place. At the hearing we granted Mr Sykes permission to amend Mrs Bennett's grounds so that they fully reflected the issues now before the court.
Evidence
It is relevant to the issues to which it is now necessary to turn that both the applicant and her representative gave evidence to the Warren tribunal, where Mrs Bennett stood by what Mr Harry had done. Of Mr Harry's attitude the tribunal records the following:
"9. Mr Harry admitted using the words and expressions about which the Lamb Tribunal complained and based...
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