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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sivanandan v London Borough Of Enfield & Ors [2002] EWCA Civ 1443 (7 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1443.html Cite as: [2002] EWCA Civ 1443

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 7th October 2002

LORD JUSTICE MUMMERY:

1. This is an application for permission to appeal. It is made by Miss Natasha Sivanandan in person. I shall refer to her throughout this judgment as "the applicant". There is also an application to amend the grounds of appeal.
2. The applicant wishes to appeal against the decision of the Employment Appeal Tribunal on 23rd July 2002. In a judgment running to 52 pages the President, giving judgment on behalf of the tribunal, dismissed the applicant's appeal against two orders of the Employment Tribunal, before whom she had brought cases of race discrimination, victimisation, sex discrimination, unfair dismissal and breach of contract. The respondents to the claims were the London Borough of Enfield, the Executive Committee of Enfield Racial Equality Council and Chandra Bhatia, the director of the Equality Council.
3. The reason why the Employment Appeal Tribunal dismissed the appeal and refused permission to appeal to this court was that they could detect no error of law in the orders made by the Employment Tribunal. The Employment Tribunal had struck out the applicant's claims, for reasons explained in extended reasons sent to the parties on 22nd September 2000.
4. On 8th March 2001 the Employment Tribunal refused the applicant's request for a review of the striking out decision. That decision was made by the chairman alone. The ground for refusing a review was that it had no reasonable prospect of success. The applicant appealed against both the striking out order and the refusal to review that order.
5. This court can only grant permission to appeal if there is a real prospect of the proposed appeal succeeding. An appeal from the decision of the Employment Tribunal to this court can only be brought on a question of law. A question of law is one which concerns the interpretation of the relevant legislation and case law, the failure to take into account relevant matters or the taking into account of irrelevant matters, or otherwise making a decision which is plainly wrong.
6. There is an additional difficulty in this case. Besides having to show that there is a question of law which has a real prospect of success, the applicant has to show that the Employment Tribunal wrongly exercised the discretions given to it in relation to striking out and review of its decisions. On an appeal to this court against the exercise of a discretion the court will not interfere simply because it would have exercised the discretion differently. It has to be shown that no reasonable tribunal would have exercised the discretion in the way which it did or that it made an error of principle.
7. The discretions in question relating to striking out are contained in rule 13 of the Employment Tribunal Rules. Rule 13(2)(e) provides that, subject to paragraph (3), at any stage of the proceedings the tribunal may order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant (or, as the case may be, respondent) has been scandalous, frivolous or vexatious. Paragraph (3) provides:

"Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made, but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

The tribunal's power to review its decisions is also framed in discretionary terms.

8. In many ways this is an extraordinary case, not least because the events took place as long ago as 1996. The applicant was employed as a race equality officer. She was dismissed in December 1996. Her IT1 was lodged with the Employment Tribunal (in the days when it was still called an Industrial Tribunal) on 10th March 1997. She listed her claims of race discrimination and victimisation contrary to the Race Relations Act 1976 and unfair dismissal, breach of contract and sex discrimination contrary to the Sex Discrimination Act 1975. She gave details of her complaints in a document attached to the IT1. The case was contested, one of the grounds being that the applicant had been fairly dismissed for gross misconduct. It was denied that there was any sex or race discrimination or breach of contract.
9. In the normal course of things the case would have been heard in 1997 or 1998. But there were many interlocutory applications and decisions and appeals to the Employment Appeal Tribunal. These went on for a number of years. It is not necessary for me to detail the history of all those matters. The history is fully set out in Mr Justice Lindsay's judgment in the Employment Appeal Tribunal.
10. Matters came to a head in the year 2000. On 24th January 2000 the case was listed for hearing. The new hearing date was 5th September 2000. It had been postponed from an earlier date in March 1999. The estimated length of the hearing was 35 days. The hearing started on 5th September. The striking out order was made, following argument, on 6th September. The order was made in the absence of the applicant. The applicant's applications to have the hearing adjourned on medical grounds had been refused.
11. The question I have to address is whether there is any question of law arising from the decision of the Employment Tribunal. In her oral submissions and in her written skeleton argument the applicant makes many criticisms of the Employment Appeal Tribunal. The relevant question for this court is not, however, how the matter was dealt with on the first appeal, but whether, on the proposed second appeal, it will be possible to identify a question of law in the decision to strike out the proceedings by the Employment Tribunal and in the refusal to review that decision. I mention that because it is a common misconception that this court exists to correct errors of the Employment Appeal Tribunal. This court is simply a second tier appeal court dealing with questions of law, if any can be found, in the decision of the Employment Tribunal.
12. The applicant relies on breach of article 6 of the European Convention on Human Rights, claiming that there has been procedural unfairness in the failure of the Employment Tribunal to give her an opportunity to show cause why her claim should not be struck out. She criticised the Employment Appeal Tribunal for failing to give adequate reasons, and intelligible reasons, and failing to deal at all with a number of grounds of appeal. She submitted that there had been no reasoned examination by the Appeal Tribunal of the Employment Tribunal's findings. Issues of prejudice and proportionality raised by her in connection with the drastic order of striking out the proceedings had not been dealt with on the appeal. Evidence relating to her medical condition had not been considered by the Appeal Tribunal. The Employment Tribunal had failed to consider all the relevant circumstances. They were criticised in particular for making a decision partly based on two file notes containing criticisms of her conduct, which had not been disclosed for her to consider before the decision was made. She also said that there had been a failure to consider the effect of the bias, which she contended existed in the Employment Tribunal. There had been no attempt to consider the substantial merits of her case. She asked that proper account should be taken of the fact that she is a litigant in person and that there had been an inequality of arms between the parties.
13. The applicant has explained at considerable length the medical problems she has suffered connected with the anxiety and stress brought about by these proceedings. She has suffered from depression. Her asthma and migraine have deteriorated under the stress of the litigation. She strongly denied any criticism that had been made by the tribunal that she had pretended to be ill or had exaggerated her illness for the purposes of the proceedings.
14. She emphasised that her absence from the tribunal, at the time when the order was made on the respondents' submissions on 6th September, was due to the state of her health. She had evidence as to that from her general practitioner. She had been put on medication. But no account had been taken of the medical evidence and the medication in refusing her requests for adjournments on health grounds. She said that the situation on 6th September 2000 was so serious that her GP had ordered her to go home. She had not had a fair trial when, after she had gone home, the application to strike out had been made and determined in her absence. In those circumstances she submitted that she had no opportunity to show cause. She said that, as far as the power to strike out was concerned, she did not know of the existence of the power in rule 13 of the Employment Tribunal Rules.
15. In her oral submissions the applicant helpfully summarised the five major errors of law which she submitted existed in the Employment Appeal Tribunal decision. I have already mentioned that the focus in this court is not on the decision of the Appeal Tribunal but on the decision of the Employment Tribunal. I will, however, summarise for completeness the criticisms of the Appeal Tribunal. First, no adequate or intelligible reasons were given for rejecting her appeal from a decision which had denied her a fair trial under article 6. Secondly, there was a failure to consider grounds she had raised relating to medical unfitness to conduct the hearing; proportionality; prejudice caused to her by the striking out of the proceedings; and failure to apply the Wednesbury test of reasonableness correctly. Thirdly, the Appeal Tribunal had ignored crucial issues, such as whether a fair trial of the claims was still possible. Fourthly, there had been no account taken of the medical evidence and, in particular, of the fact that it was her medical condition which explained her absence when the strike out order was made. Fifthly, the Appeal Tribunal had ignored the crucial issue of the non-disclosure of two internal file notes containing evidence criticising her, which she claimed to be untrue. They were relevant to her critical argument of bias on the part of the tribunal. She submitted that the wrong approach had been taken to the issue of bias. The proper test to apply was that of the reasonable observer's apprehension of bias. Finally, she said that she had dealt in her arguments in the Appeal Tribunal with a great deal of evidence and case law which had not been referred to in its judgment. The judgment contained errors of fact.
16. The allegations made by the applicant are of course serious and require careful consideration. In my judgment, the main point of all the many points which she made is that, quite unusually, her case has been determined without a hearing on its merits. That is a drastic course for a tribunal to take. Even more unusual is the fact that that decision was made when the applicant had left the hearing, which had started on 5th September. The usual course of tribunal hearings is that witnesses are heard on both sides and submissions are made on both sides, including legal argument, before a decision is made whether to find or reject claims made in the proceedings.
17. Allowing, however, for those exceptional features of this case, the difficulty I have in deciding whether to grant permission to appeal is to identify an error of law on the part of the Employment Tribunal. The Employment Tribunal undoubtedly had very wide powers under rule 13 of the Employment Tribunal Rules. The matter was considered, in my judgment, on a correct approach to the question of the exercise of the tribunal's discretion. I am unable to find that there was an error of law in the exercise of that discretion. The tribunal applied the correct rule and took into account the matters which were relevant to the exercise of that discretion. Nor am I able to find any real prospect of success in the proposed appeal against the refusal of the review by the chairman on 8th March 2001.
18. The tribunal set out the background of the application for the review, which was specifically made on the basis that the decision was made in her absence, that new evidence as to her health had become available since the conclusion of the hearing and that the interests of justice required a review. The tribunal dealt in detail with the new medical evidence and with the arguments advanced. In my judgment, there is no real prospect of persuading the Court of Appeal that that was not a proper exercise of the chairman's discretion.
19. The fact is that Employment Tribunals are given wide discretions - in some cases even wider than those that are possessed by the ordinary courts - in order to do justice between the parties. In this case the discretions have, in my judgment, been correctly exercised by reference to the relevant parts of the Employment Tribunal Rules and have been explained in great detail by reference to the history of the proceedings and to the various arguments which were put forward in them.
20. In those circumstances I am afraid that the applicant will be disappointed to learn that my view, on reading all these papers and considering her written and oral arguments, is that the proposed appeal against the decision of the Employment Appeal Tribunal has no real prospect of success.
21. The reserved judgment of the Employment Appeal Tribunal deals in detail with most of the points which the applicant has raised before me. As for the points which it does not deal with, I have reached the conclusion that the Employment Appeal Tribunal was entitled to omit them from detailed consideration. As I have already mentioned, in a very long judgment the Appeal Tribunal dealt with the main points. There is no obligation on any tribunal or court to deal with every single point simply because it has been raised.
22. Looking at the totality of the points, I have come to the conclusion that, although the striking out of a case that was going to last 35 days was an extreme order for the tribunal to make, it was an order which it was legally entitled to make. The fact that this court or another tribunal might not have made such an extreme order does not mean that the tribunal was in error of law in doing so.
23. I therefore refuse the application for permission to appeal.
Order: application for permission to appeal dismissed.