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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sivanandan v London Borough Of Enfield & Ors [1998] UKEAT 450_98_0110 (1 October 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/450_98_0110.html Cite as: [1998] UKEAT 450_98_0110, [1998] UKEAT 450_98_110

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the 1st Respondents For the 2nd and 3rd Respondents	MR J CAWSTON Head of Legal Services London Borough of Enfield PO Box 50 Civic Centre Silver Street Enfield Middlesex EN1 3XA MS C BATES (Solicitor) Messrs Rowe & Maw Solicitors 20 Blackfriars Lane London EC4V 6HD


 


MR JUSTICE MORISON (PRESIDENT): This was a meeting for directions in prolonged litigation between Ms Sivanandan, the London Borough of Enfield, the Enfield Racial Equality Council, and as third respondent a named individual, Ms Bhatia. The purpose of these directions was to consider five matters:

1. Whether the leave granted by His Honour Judge Levy was properly granted.

2. Whether the Notice of Appeal submitted by the appellant conforms to the leave granted.

3. Whether the issues set out in paragraphs 13, 14 and 15 of the appellant's Notice of Appeal are res judicata.

4. The late submission of the third respondent's answer.

5. The correct parties to the appeal.

The background to these matters may be very shortly stated. Ms Sivanandan was employed to work at the Enfield Racial Equality Council with effect from 22nd September 1996. Following a disciplinary hearing, she was dismissed with effect from 11th December 1996 and submitted a complaint to an Industrial Tribunal on 10th March 1997 naming as the three respondents the London Borough of Enfield, the Executive Committee Enfield Racial Equality Council and the Director of that Council. Notice of Appearance was submitted on behalf of the Executive Committee and the Director by Messrs Bindman & Partners on 19th March 1997 and by the London Borough of Enfield on 25th March 1997.

On 23rd October 1997 the Industrial Tribunal sat for two days to consider a number of issues including the identity of the employer and the correct parties to the proceedings. The tribunal's decision, promulgated on 21st November 1997, was that Ms Sivanandan was employed by the London Borough of Enfield and the Executive Committee of the EREC was dismissed from the proceedings. Although the tribunal did not say so, it might appear that the Industrial Tribunal considered that EREC was an un-incorporated association, it did not have legal personality and could not therefore be sued in that capacity. Time for appealing that decision expired on 2nd January 1998.

The tribunal sat again on 23rd January 1998. At that hearing Ms Sivanandan applied to amend her Originating Application to join 16 individuals, being 16 of the 18 members of the Council's Executive Committee. That application for leave to amend was refused by a decision promulgated on 10th February 1998. Time for appealing that decision expired on 24th March 1998.

The Industrial Tribunal sat again on 20th March 1998 and various directions were given in relation to further and better particulars and discovery and other matters. That decision was promulgated on 9th April 1998 and the final date for submitting an appeal in relation to that was 21st May 1998.

Yet again the tribunal sat on 21st and 22nd September in order to deal with further interlocutory matters and their decision was promulgated on 8th October 1998.

I set out those matters having taken from the skeleton argument submitted on behalf of the second and third respondents simply because it will be of assistance to the Court at a later stage as I shall indicate.

There are three Notices of Appeal which have been submitted by Ms Sivanandan. The first was received on 23rd March 1998 in which she appealed against the decision of 10th February 1998 which decided not to allow her to amend her Originating Application. That is appeal no: EAT/450/98 and as part of the grounds of appeal Ms Sivanandan complains that the Industrial Tribunal was biased against her.

On 7th May 1998 a second Notice of Appeal was received here complaining of the decision which had been promulgated on 9th April 1998. Appeal: EAT/628/98. Again, that Notice of Appeal complained about the ruling itself and also about the way the Industrial Tribunal had conducted its proceedings and there was an allegation of bias.

The following day, 8th May 1998, Ms Sivanandan submitted a third Notice of Appeal, this time in relation to the Industrial Tribunal sitting at Stratford on 20th March 1998 which sent the written decision to the parties on 9th June 1998 with reference to the decision to refuse her application for costs. That is appeal EAT/630/98.

The Employment Appeal Tribunal listed the matter for a preliminary hearing and it came before His Honour Judge Levy sitting with two lay members. Ms Sivanandan appeared in person at that hearing. There was also present a Mr Clark of the ELAAS scheme, although the question as to whether he was her authorised representative or not is very much in issue and no doubt reference will be made to it at the hearing in due course. Solicitors attended for the second and third respondents as observers. The Employment Appeal Tribunal made three orders. Firstly in relation to appeal EAT/450/98 Ms Sivanandan was given leave to amend the Notice of Appeal to be submitted within 14 days against the Industrial Tribunal's decision to dismiss from the proceedings the second respondent. That order was made upon Ms Sivanandan withdrawing the grounds of bias in the Notice of Appeal. In appeal EAT/628/98, the tribunal ordered that the appeal be dismissed on its withdrawal. In relation to appeal EAT/630/98, the Employment Appeal Tribunal ordered that the appeal be dismissed. However, the Court granted Ms Sivanandan leave to appeal against the tribunal's decision to dismiss the proceedings against the second named respondents. That was a decision promulgated on 21st November 1997. There was in fact no appeal against that decision. The first Notice of Appeal did not refer to that decision and that was submitted to us on 23rd March 1998. Ms Sivanandan made no application for any extension of time and it would appear that the learned Judge made no reference during the proceedings to the issue of time. It would appear, with great respect to him, that he confused the two decisions of the Industrial Tribunal promulgated on 21st November 1997 and 10th February 1998. Again, I have taken that history from the skeleton argument submitted on the second and third respondents behalf. Purely to enable the matter to be set in its correct context.

The first three matters which are in issue today can be dealt with together. It is obvious because there has been a mistake made by the Court that there needs to be further rehearing of the issue. The question before me was what was to be the ambit of that rehearing? It was submitted to me that because Ms Sivanandan had withdrawn her allegation of bias it was now not possible for that matter to be reventilated during the course of those proceedings. My attention was drawn to a decision of the Court of Appeal Barber v Staffordshire County Council [1996] ICR 379 where it would appear that an order made by the EAT renders the allegations to which that order relates res judicata, so that a dismissal on withdrawal causes judgment estoppel.

Ms Sivanandan contends that she only withdrew the contention of bias because she was put under undue and she submits improper pressure from the Court in that context. She said that effectively she was told by the Court that were she to succeed in relation to that complaint it would affect the whole of work previously done by the Industrial Tribunal. She says that that is not correct, but that during the course of a hearing where she felt that she was not being fairly dealt with, in the heat of the moment she agreed to make a withdrawal of the allegations of bias. She told that in relation to the September hearing to which referred, that is 21st and 22nd September and decision in relation to it being promulgated on 8th October 1998, that she will be lodging a Notice of Appeal alleging that the Industrial Tribunal was biased, and as part of her claim in relation to bias, she will be relying on all the events that have occurred to which I have made reference, which she says, shows a systematic pattern of bias against her by the Industrial Tribunal. Accordingly she says, and I see the force of it, that whether she is allowed to re-open the withdrawn allegation, we will be bound to have to consider the tribunal's attitude towards her over the very many hearings that have taken place in relation to an appeal which has not yet been lodged, but which she says she will be lodging in due course. Given the history of this matter, I am quite prepared to accept that an appeal will be lodged here soon and that that appeal will include an allegation of bias, as have the other Notices of Appeal to which I have referred. In those circumstances, she submits that it would be correct for the Court not to stifle her claim in relation to bias in relation to that part of the case which she withdrew. I see the force of that.

It seems to me that the sensible, practical course to take is to include at the renewed hearing the allegation of bias which has been withdrawn. The Employment Appeal Tribunal will be able to examine its merits. If it is of the view that there is merit in it but there is a legal technical difficulty in dealing with it, that difficulty can then and there be confronted. If on the other hand, it were to take the view that there was no merit in it, then the legal difficulty would not arise for consideration. That way she will be assured that the Employment Appeal Tribunal, presided over by the President and two lay members, will fully look at all the complaints which she wished to make against the Industrial Tribunal unimpeded by the withdrawal which she says she was induced to make.

On that basis, bearing in mind that there is a hearing which is fixed in the Industrial Tribunal to take place in March 1999, it would be right to order that the matter come back to the Employment Appeal Tribunal for an inter partes preliminary hearing with a view to the matter proceeding to a full hearing on the same occasion if we are persuaded that the arguments are credible, and to list it as a Category P matter, that is marking it to ensure that the President himself deals with it. Given the background to this case, it would be right that we should allocate proper time to consider this matter with care, and I believe that one day will be sufficient. I therefore direct that the hearing should come on before Christmas for one day, Category P. This will give an opportunity to the Employment Appeal Tribunal to correct the error which has been made and to re-look at the issue in relation to bias anew.

In so far as the decision of the EAT related to the question of costs, Ms Sivanandan very properly says that she does not want to re-open that matter and therefore that will not be in issue at the resumed hearing.

That deals I think with the first three matters. The next question relates to whether the third respondent, that is the named individual, should be precluded from contesting an appeal on the grounds that the Notice of Appearance was lodged out of time. The underlying facts are that on 3rd July 1998 the Employment Appeal Tribunal received from solicitors dated 2nd July 1998 a respondent's answer identifying as the respondent the Executive Committee of Enfield Racial Equality Council. The solicitors were Messrs Bindman & Partners, but at all material times the person in charge of dealing with this matter is a Ms Bates who herself transferred from that partnership to Messrs Rowe & Maw. On the top of that document is written by somebody, probably from the Employment Appeal Tribunal office, "2nd & 3rd" to indicate that it was being treated as the respondent's answer on behalf of the second and third respondents, although the name of the respondent did not include the name of the third respondent. The next event is that there was a respondent's answer filed by the first respondents making the point that the appeal against the decision to dismiss Enfield Racial Equality Council from the proceedings was not made timeously.

On 10th August 1998 the Employment Appeal Tribunal received a respondent's answer purporting to be on behalf of Ms Chandra Bhatia, the third named respondent, and underneath her name was written "The Executive Committee of Enfield Racial Equality Council". For the first time on behalf of the respondents other than the first respondent, a time point was taken.

The position therefore is that either the respondent's later answer was to be treated as an application for leave to amend the answer which had previously been filed, if that answer was on behalf of the second and third respondents, or was for the first time an answer presented on behalf of the third respondent. If the latter, then it was an answer which was being filed out of time. The solicitor dealing with the matter had changed firms to Rowe & Maw before answer in August 1998 was filed.

What Ms Sivanandan says is that I should refuse leave to the respondents to take part in the appeal and argue the time point, because they were out of time, or alternatively the application for leave to amend was cynically made purely attaching themselves to the coat-tails of the London Borough of Enfield, borrowing if you like the time limit point taken by them.

I invited her to deal with any specific prejudice which she says she would suffer were leave to amend to be granted or leave to take part in the proceedings was granted, despite the late answer. Her case is that she has been made ill by these proceedings and by the way she perceives herself to have been dealt with by the Industrial Tribunal, the Judges at the Employment Appeal Tribunal and the Appeal Tribunal staff and that she has been reduced to a state of ill-health which may require her to be hospitalised. She says that the answer to the question of whether she was prejudiced by this is so obvious that it does not need expanding and that in a sense it was a question which did not deserve to be asked. She says that it would be unjust and inequitable and really totally irresponsible to allow such a late application. It will put her under increased pressure to have this point being argued if I was to extend time or to allow the amendment, and that the interests of justice were all one way.

For the second and third respondents Ms Bates argues that there can be no prejudice caused to the applicant because the time issue is a live issue since it is raised specifically by the first respondent, and therefore, whether or not the second and third respondents were entitled to raise it, would not alter the pressure upon Ms Sivanandan, and would not extend the time taken for the hearing of the appeal. Secondly, she says that in any event, if there is a time limit point, it is a jurisdictional point and does not require to be a point mentioned in a formal document such as a respondent's answer, since at any stage of the proceedings the court must be satisfied that it has jurisdiction to deal with the matter in issue, whether the parties raise it or not. She submitted that there was no specific prejudice to be caused by the late submission of the third respondent's answer. It is her submission, as I understand it, that the answer which was filed in July was not an answer on behalf of the third respondent, and therefore, until the document in August, there was no such answer filed. It is not so much asking for leave to amend as asking for leave to file an answer out of time. Although I think she would accept that the time limit point is to be advanced both on behalf of the second and third respondents. To that extent, even if it is a late respondent's answer on behalf of the third respondent, it contains within it an application for leave to amend the answer of the second respondent.

In the exercise of my discretion, I have come to the conclusion that the interests of justice require that the parties should be able to address to the Employment Appeal Tribunal all matters which they feel they would like to draw to the Court's attention to dispose of these appeals. Just as a practical decision has been taken in relation to Ms Sivanandan's right to raise bias against the Industrial Tribunal even though she may have withdrawn part of her claim, so also in relation to this matter I think it would be entirely appropriate to extend time to permit the parties to have a full debate of the various issues. Apart from anything else, I am persuaded that by allowing a late answer and leave to amend, the appellant will not be prejudiced because the time limit point has been taken by the first respondent and would have to be investigated by this Court in any event. Accordingly, I grant leave in the exercise of my discretion as I think that it is in accordance with the general view of the Court that all issues should be raised.

I then turn to who are the correct parties to the appeal. The issue here can be shortly stated. The Enfield Racial Equality Council is an un-incorporated association and cannot therefore be sued as such. What should happen is that there should be named individuals who form the controlling voice of that Council at the relevant time, who were the members of the Executive Committee of that Council. I was told by Ms Bates that she has such instructions, that is from the 16 individuals concerned who comprise either the whole or the substantial part of the relevant committee of that Council, responsible for the matters complained of; and that the proceedings should be amended to reflect the fact that the second respondents are to be named by the 16 individuals and a reference in brackets to the fact that they are committee members or members of a particular committee of the Enfield Racial Equality Council being sued as such. That will make the position crystal clear. Ms Sivanandan very sensibly though that that was a course which she would willingly accept. Accordingly I direct that the proceedings be amended. I direct that the second respondents do notify the Court within 14 days of the names and new title to the names of the people upon the committee, and the new title to the proceedings and we will then alter our records accordingly.

It follows therefore that there is to be a further hearing in this case when all the matters in issue can be considered. That will take place before Christmas.

I would add in this judgment that I expect an early Notice of Appeal from Ms Sivanandan in relation to the decision of the Industrial Tribunal in relation to the September hearing, so that it can be consolidated with the other matters to which I have referred. Because it was partly on that basis that I made my decision on the first three issues. I would be grateful if Ms Sivanandan would file her Notice of Appeal as soon as is practicable so that the consolidation may then take effect.

There is liberty to apply to the parties for any further directions that they may need in relation to this matter either dealing with them before my normal court list if required.

Finally I should make an order as I indicated that skeleton arguments should be exchanged 14 days before the date of the new hearing before Christmas. Ms Sivanandan accepted that that would be a sensible course to take and she will comply with it.