Neutral Citation Number: [2014] EWCA Civ 1243

Case No: A2/2013/2171 
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE RICHARDSON)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Wednesday, 9 July 2014
 
B e f o r e: 

LORD JUSTICE UNDERHILL

LORD JUSTICE MAURICE KAY 

LORD JUSTICE TOMLINSON 

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Between: 
	EYITENE	Appellant	
	v		
	WIRRAL METROPOLITAN BOROUGH COUNCIL	Respondent	
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The Appellant did not appear and was not represented
Mr T Kenward (instructed by Wirral MBC) appeared on behalf of the Respondent 
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J U D G M E N T

1.	LORD JUSTICE UNDERHILL:  This is an appeal against a decision of the Employment Appeal Tribunal (HHJ Judge Richardson and members) at a preliminary hearing on 4 July 2013, dismissing the Appellant's appeal against a decision of an Employment Tribunal sitting in Liverpool (Employment Judge Ryan and members), which in turn dismissed his claims of race and disability discrimination.  The decision of the Employment Tribunal was reserved and was promulgated in the form of a judgment and written reasons sent to the parties on 7 February 2012.  
2.	The Appellant, who is a solicitor, acted in person in Tribunals below, though in the Employment Appeal Tribunal he had the assistance of counsel under the ELAAS scheme.  He was due to appear before us in person this morning.  He has written to say that he is unwell and unable to attend, but he has asked for the case to proceed in his absence.  We are content to take that course.  We have of course read with care his skeleton arguments and all the materials on which he relies.  It has not been necessary to call on Mr Kenward of counsel for the Respondent, though we are grateful for his skeleton arguments.  
3.	The grounds of appeal initially filed were multifarious, but permission has been refused on all save one very specific point.  The nature of that point makes it unnecessary that I should say anything more about the substance of the Appellant's claims.  
4.	The issue on which permission was granted arises in this way.  The Appellant's original appeal against the decision of the Employment Tribunal alleged that the Employment Judge had said things in the course of the hearing, and that things had been said in the written reasons, which demonstrated bias on the part of the Tribunal.  In the usual way the Employment Appeal Tribunal asked for the comments of the Employment Judge himself and of the lay members.  One of the matters that was said to demonstrate bias was a statement at paragraph 2.37 of the reasons referring to a particular aspect of the Appellant's conduct as "brinkmanship".  In their response to that criticism both of the lay members said that they had not seen the written reasons and so were not in a position to comment on what was said in the paragraph in question.  The Appellant submitted to the Employment Appeal Tribunal that it was wrong in principle that the lay members should not have seen, and cannot therefore have approved, the written reasons and that it followed from that fact that the decision could not be regarded as a properly made decision of the whole Tribunal.  
5.	The Employment Appeal Tribunal dealt with that point at paragraph 30 of its reasons as follows:
"In our judgment, there is no force in this point at all.  The practice is for the Employment Judge to consult the members and agree findings, conclusions and reasons before the judgment and reasons are given.  Based on the results of that consultation, the Employment Judge will then give reasons either orally or in writing.  There is no reason to doubt that this process occurred here.  The fact, if such it be, that the members did not receive a copy of the written reasons does not provide any support for the proposition that they did not associate themselves with the judgment and reasons.  The members said they did not have a copy of the written reasons, but nothing in their comments suggests for a moment that they would or did disagree on the question concerned."
6.	One of the grounds of appeal to this court raised the same point.  In giving permission Rimer LJ said this:
"That, so it appears, neither of the lay members saw and approved the reasons of the ET sent to the parties on 7 February 2012 is a matter that I regard as giving rise to arguable concern.  The EAT dismissed the point at paragraph 30 of its judgment.  If what the EAT there says is the practice of Employment Tribunals, I consider that it is one that merits consideration by the Court of Appeal."
7.	Following the grant of permission a direction was made by Elias LJ requiring the Employment Judge and the members to provide their comments on this ground of appeal, and in particular in relation to: 
"(a) the practice and arrangements made and adopted by the Employment Judge and the members in this case for the purposes of any deliberation or discussion in chambers or otherwise and for the purposes of arriving at the judgment and reasons.  
 (b) the extent of any agreement or otherwise on the part of the Employment Judge and members as to the judgment and reasons."
I will summarise the effect of the members' responses to that order.  
8.	Employment Judge Ryan's response is very full and I need not quote it verbatim.  It can be sufficiently summarised as follows.  He and the lay members deliberated on the case for two or three hours immediately following closing submissions on the last day of the hearing.  In the course of that session he made four pages of detailed manuscript notes which he formally signed and dated.  He also dictated some passages onto tape in the presence of the lay members.  Between them, the notes and the dictated passages recorded the full conclusions of the Tribunal on the issues which it had to decide, on which all three members were agreed.  The notes and tapes were then typed up.  He edited the resulting draft stylistically, "but without changing the findings and rationale of the judgment".  It was not his practice to involve the lay members at this later stage unless there was a minority decision on any issue or there was some particular concern such that he believed that he needed to involve them.  He would send a copy of the final draft version to a member if it was requested, but this almost never occurred.  
9.	As for the lay members, Mr Roberts said this:
"This was a lengthy and complex case which generated a considerable amount of discussion between Tribunal members in chambers following completion of the case.  I had access to my copies of the bundles and my handwritten notes totalling in excess of 80 pages.  Colleagues consulted their own bundles and notes as necessary.  In my many years of Tribunal experience, I have rarely been asked to comment on a draft version of the final written reasons for a judgment, nor have I been regularly copied into the written reasons sent to the parties.  But I have always contributed fully to discussion and deliberations and been fully consulted in agreeing findings of fact conclusions and a final judgment.  I have never had any reason to doubt that the written reasons sent to the parties would do anything other than accurately reflect the views of the Tribunal, unanimous or otherwise.  I am content that Judge Ryan issued written reasons in this case that fully reflected the Tribunal's findings and conclusions."  
10.	Mr Gates, the other lay member, said this:
"Judge Ryan, Mr Roberts and myself sat down and discussed the issues and matters of fact in relation to all aspects of the case in great detail.  We debated the numerous issues that had been raised throughout the hearing.  Judge Ryan made full notes on all points and drafted the decision; again, standard practice in my experience.  The decision we reached was a unanimous one with a full consideration and input from all the members.  Judge Ryan had it typed and sent to the parties.  I say this is normal/standard practice on the basis that I have sat as an ET member for over ten years sitting in six Tribunal hearing centres with judges from at least five Tribunal regions, the process followed in the various Tribunals and regions being broadly similar.  Throughout my time sitting, I have only twice received from a judge a copy of the typed decision.  On both these occasions, the decision of the Tribunal was not unanimous, but majority decisions; the judges on both occasions asking the members to consider the points relating to the differing views in particular."
11.	It is clear from those responses that the members of the Tribunal believed that they were following standard practice about the drafting of written reasons, as did the EAT.  That conforms with my own understanding, acquired when I was President of the Employment Appeal Tribunal and also when I chaired the working party that led to the current Employment Tribunal Rules.  However, we have thought it right to take steps to confirm the position with the current Presidents of the Employment Tribunals in England and Wales and in Scotland.  Current practice, which is sustained through the extensive training which both judicial and lay members are required to undergo, can be summarised as follows:
(1) At the conclusion of the closing submissions the members of the Tribunal will have a full discussion.  It will usually be possible for that discussion to be concluded within the day or, in the case of a multi‑day hearing, within the period set aside for the hearing; but if not, as sometimes occurs in a particularly complex or difficult case, a further day or days will be allocated in order to conclude it.  (Aficionados of Employment Tribunal judgments will have noted that such additional "chambers days" are always noted in the formal parts of the written Reasons.)  
 (2) The conduct of such discussions forms an important part of the training both of Employment Judges and of lay members.  Judges are required to identify with the lay members the issues that require determination and to go through those issues with them thoroughly and in a structured fashion.  They are required to make full notes of the decisions arrived at and the essential reasoning, ensuring that those notes reflect the views of all the members, or recording any points of disagreement.  Some Judges may in particular cases go further and draft key passages in full for the consideration of the lay members or record them on tape in their presence; but that will depend on the case and on the working methods of the Judge in question.  Those materials will form the basis of the formal Reasons.  It is not regarded as necessary for the detailed expression of the reasons to be agreed, which would of course substantially increase the time needed for deliberation; and that is understood to be a matter for the Judge ‑‑ though, as I say, he or she may in fact have drafted some passages in final form with the members.   
 (3) If the case is straightforward the discussion need not take long, and the Employment Judge will be able to deliver both the decision and the reasons orally, within the day or other period set aside for the hearing, on the basis of the notes agreed.  The oral reasons are recorded on tape as they are delivered, and if the parties bespeak written reasons within the time allowed by the Rules the tape will form the basis of those reasons (though the Judge may do a certain amount of editing ‑ as to this, see my own decision, sitting in the EAT, in The Partners of Haxby Practice v Collen UKEAT/0120/12).
 (4) If the case is more complex the decision and/or the reasons may have to be reserved, i.e. promulgated later in writing.  Such written reasons are drafted by the Employment Judge on the basis of the notes taken in discussion as described above.  It is part of the training of both members and Judges that lay members are entitled to ask in any case to see the text of the reasons before they are finally promulgated.  But a draft is not routinely circulated to lay members without such a request: the substance will have been agreed and, as I say, the detailed expression is regarded as a matter for the Judge.  Typically, lay members will only ask to see the reasons before promulgation where there is some particular reason to do so, e.g. where the case is peculiarly sensitive.  However, where there is a split decision the lay member or members whose views the Judge is giving will always be sent the draft, in recognition of the fact that it is not always straightforward for a Judge to state correctly a decision or reasoning with which he or she does not agree: that reflects the decision of this Court in Anglian Home Improvements Ltd v Kelly [2004] EWCA Civ 90, [2005] ICR 242 (see per Mummery LJ at para. 12 (p. 247)).
12.	That being the practice, it is clear that the Tribunal in this case did indeed follow it.  The only question is whether the practice is in accordance with the requirements of the statute or any relevant regulations.  As to that, section 4 (1) of the Employment Tribunals Act 1996 provides that, subject to the provisions providing for an Employment Judge to sit alone in certain circumstances, "proceedings before an employment tribunal shall be heard by (a)...the chairman, and (b) two other members, or (with the consent of the parties) one other member..."; and that is reflected in reg. 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2014, which were in force at the relevant time.  It necessarily follows that the decision of the Tribunal must be that of all the members sitting (or, where they cannot agree, that the view of the minority member is recorded); and the same must be true of the essential reasoning which leads to that decision.  The issue is whether written reasons can be said to represent the reasons of all the members where the lay members have not seen and approved the form in which they are finally promulgated. 
13.	 I can understand why Rimer LJ thought that the procedure as stated by the EAT merited consideration by this Court.  It is certainly the practice in some tribunals ‑‑ including, as it happens, the EAT itself (of which he is a former member) ‑‑ for all the members to approve a written decision in draft before it is finally promulgated.  But I do not believe that that is necessary.  What matters is that the decision and reasons as promulgated should truly record the conclusions, with the essential supporting reasoning, of all the members of the tribunal on the matters falling for decision.  
14.	In my judgment the practice described above, if properly followed, ensures that the Employment Judge is in a position to draft reasons which satisfy that requirement.  That being so, it is entirely legitimate for the members to leave the detailed expression of the conclusions and reasoning to the Judge, who has both the responsibility to do the drafting and the relevant expertise; and there is no reason why they should have to see his draft before it is promulgated simply in order to check that he or she has done the job properly.  I note in this connection ‑‑ though it is not in itself in any way decisive ‑‑ that under the then current Rules of Procedure only the Judge is required to sign the reasons: see rule 30(4).  Having said that, the reasons as promulgated remain those of the tribunal as a whole, and I regard it as important that Judges and lay members alike are aware of a lay member's right to ask to see a draft before promulgation and that lay members should feel no inhibition about exercising that right if they wish to do so in a particular case.   
15.	 I would add that if, contrary to my view, it were indeed necessary that members should have approved not only the substance of the reasons but the form in which they are expressed, one consequence would be that the healthy practice of Employment Judges in straightforward cases giving the reasons of the tribunal orally at the end of the hearing would become much less common: the reasons would have to be fully drafted, without leaving any room for extemporisation, and members taken through the draft before it was delivered, which would often simply not be possible within the time allocated for the hearing.  That would be very regrettable.  
16.	That disposes of this appeal.  The Employment Judge says in terms that the reasons drafted by him represented the substance of the reasoning of all members of the tribunal, as ascertained in the post‑hearing discussion, and that they were unanimous on all findings of fact.  That is supported by the responses from the lay members, and there is no reason whatever for doubting it.  
17.	My reading of the Judge's response suggests that the comment about brinkmanship to which the Appellant takes exception was specifically included in the notes agreed in discussion or was part of the passages dictated in the members' presence.  But even if there were some doubt about that, the comment was simply an observation in the course of the narrative section of the reasons and had no conceivable bearing on the dispositive reasoning.  I should also say that I cannot see how it could even arguably be said to be evidence of bias: I am not sure that it was even, in context, pejorative.  But that is no longer an issue. 
18.	I would dismiss this appeal.
19.	LORD JUSTICE MAURICE KAY:  So would I and for the same reasons. 
20.	LORD JUSTICE TOMLINSON:  I also agree.