Appeal No.	EAT/0142/03/SM &
		EAT/0266/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 2003
Judgment delivered on 7 October 2003

Before
MR RECORDER LUBA QC
MS C BAELZ
LORD  DAVIES OF COITY CBE

MR SURESH DEMAN	APPELLANT

THE ASSOCIATION OF UNIVERSITY TEACHERS	RESPONDENTS
DR DAVID TRIESMAN
MR PAUL COTTERELL
MR ALAN KETT
MR P MITCHELL

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant
	MR JOHN DAVIES QC
Thomas Dunton Solicitors
217/219 High Street
Orpington
Kent
BR6 0NZ	
For the Respondents	MR M SETHI
(of Counsel)
Messrs Pattinson & Brewer Solicitors
71 Kingsway
London
WC2B 6ST	

MR RECORDER LUBA QC

Introduction

1. 	This judgment is concerned with appeals brought by Mr Suresh Deman against two decisions made by the London Central Employment Tribunal.  The first Employment Tribunal decision was notified to the parties on 12 November 2002.  That Tribunal was presided over by Mr Haynes, Chairman (hereafter the “Haynes” Tribunal). The appeal from that decision is 0266/03.  The second appeal is brought against a decision notified to the parties on 14 January 2003 made by a Tribunal presided over by Mr Sigsworth, Chairman (hereafter the “Sigsworth” Tribunal). That is appeal 0142/03.

2.	These appeals are the latest facet of extended litigation between Mr Deman and the Association of University Teachers and certain of its officers who are the individual Respondents. In order to understand the context in which the present appeals fall for determination it is necessary to set out a short history of this litigation.

3.	Mr Deman is an academic. He is a U.S. national of Asian origin. He has been a member of the Association of University Teachers for a number of years.  As a member of that Association he has sought services, benefits and other facilities to which he believed, as a member of the trade union, he was entitled. He has also applied for appointment as a member of the Association’s staff, has asked the union to nominate him as a tribunal member, and has made other requests to the AUT for its assistance. He has not been satisfied with the Association’s response on these matters and has brought a series of complaints against the Association and various of its officers alleging, amongst other matters, racial discrimination and victimisation.

4.	The first relevant application by Mr Deman to an Employment Tribunal was made by Form IT1 on 19 February 1996 (reference 10726/96).  The second IT1 was lodged on 25 July 1996 (reference 46499/96).  Those applications were heard together by an Employment Tribunal presided over by Mr Menon, Chairman (hereafter the “Menon” Tribunal) and were dismissed.  The decision of that Tribunal was notified to the parties on 23 April 1999.  It was subject of an unsuccessful appeal to this Employment Appeal Tribunal.  However, Mr Deman thereafter secured permission to appeal from the Court of Appeal and subsequently the Court of Appeal allowed his appeal and remitted the two applications he had made for fresh consideration by a new Employment Tribunal.

5.	Mr Deman’s third IT1 was submitted on 10 August 1999 (reference 6004846/99).  That was shortly followed by a fourth IT1 filed on 14 November 1999 (reference 2201016/99).  Those two originating applications were considered by the Haynes Tribunal.  The Haynes Tribunal dismissed all of Mr Deman’s complaints.  The appeal against that decision is the first of the appeals before us for consideration.  It is right to record that it came forward for a preliminary hearing in our List but the parties have agreed that this judgment should be treated as the judgment on the appeal itself in the circumstances we describe more fully below.

6.	A fifth application on Form IT1 was lodged with the Employment Tribunal on 11 June 2001 (reference 2200898/01).  That was the application considered by the Sigsworth Tribunal which, in the circumstances we shall shortly describe, struck out most of that application.  The appeal against that striking-out falls for our consideration as a full appeal.

7.	By a sixth application on Form IT1, lodged on 2 December 2002 (reference 2205607/02) Mr Deman brings further matters for adjudication by an Employment Tribunal relating to the Association and its officers.

The Haynes Tribunal

8.	As we have indicated, the Haynes Tribunal was convened to deal with the two applications lodged by Mr Deman in 1999 (his third and fourth).  Before those complaints could be heard the fifth complaint mentioned above had been lodged.  In those circumstances, the Association and the other Respondents applied to the Employment Tribunal for the third, fourth and fifth originating applications all to be heard and adjudicated upon together.  Mr Deman opposed that application.  It was considered on notice by an Employment Tribunal Chairman and rejected.  The fifth originating application was stood-out to be heard separately by a different Employment Tribunal and the Haynes Tribunal was looking only at applications three and four.  In those circumstances, it was confined to adjudicating upon complaints relating to matters arising before the date of the presentation of the second of those two applications, i.e. 14 November 1999.

9.	The hearing before the Haynes Tribunal extended over several days in late September and early October 2002.  The Tribunal members spent three further days in chambers deliberating on the applications and produced a long and detailed document containing their Extended Reasons (running to some 60 closely typed pages).  The Tribunal set out the nature of the evidence received by them (in terms of the witnesses they heard, the documents they considered) and the submissions they received.  They also refer to the voluminous documentation which was before them in relation to Mr Deman’s applications.  In the event, as we have already indicated, the Haynes Tribunal dismissed all the complaints in both applications then before them.  They had identified the first application as covering some 16 discrete “heads” of complaint and a further 5 heads of complaint were contained in the second application. All were rejected.

10.	At the outset of the hearing before the Haynes Tribunal Mr Deman had invited the Tribunal to consider, as relevant material to the complaints of specific acts of discrimination and victimisation up to 14 November 1999, certain matters which had occurred after that date.  In particular, he wished the Tribunal to take into account in determining whether he had been wrongly denied “legal aid” assistance by the AUT, the subsequent failure of the Association to supply him with such “legal aid” in relation to other potential proceedings.  The Tribunal acceded to that application.  They record at paragraph 10.11 (et seq) of their Extended Reasons the facts which the applicant had asked them to take into account “for background purposes”.  Thereafter, the Tribunal give a recital of the various factual matters and developments in relation to the later “legal aid” application which occurred in a period running from 27 January 2000 up to and including matters which occurred in March 2001.

11.	Accordingly, in the determination of the complaint of discrimination and/or victimisation made by Mr Deman in relation to legal aid matters in the period prior to November 1999, the Tribunal considered what assistance it could derive from those subsequent matters urged upon them by Dr Deman.  In paragraphs 20.24 through to 20.29 of the Extended Reasons they set out their considerations in relation to those additional factual matters relating to the period post-November 1999.

12.	In short, they found that Mr Deman had indeed subsequently been refused legal aid to undertake further proceedings but that such refusal had been explicable by reason of his own failure to provide reasonably required information. They considered that the applications were not approved for reasons which amounted to reasonable grounds and which had nothing to do with discrimination or victimisation.  This echoed their conclusion on the “legal aid” matters pre-November 1999 which were the actual subject of complaint before them.

13.	By a Notice of Appeal to this Employment Appeal Tribunal dated 23 December 2002, Mr Deman contends that the Haynes Tribunal erred in law.  The Notice of Appeal gives reasonable particulars of the contended errors of law.

14.	At a preliminary hearing on 2 July 2003, this division of the Employment Appeal Tribunal gave an extempore judgment dealing with the majority of the grounds set out in the Notice of Appeal.  For the reasons that we gave in our judgment on that day we struck-out the majority of grounds in the Notice of Appeal as not being matters which disclosed an arguable error of law.  That left in the Notice of Appeal an attack on the Haynes Tribunal’s handling of the post-1999 factual matters.

15.	The particulars contained in the Notice of Appeal essentially challenge the Employment Tribunal’s decision on the basis that 

(1) 	it exceeded its jurisdiction in making the findings at paragraphs 20.24 to 20.29 of its Extended Reasons in relation to post-1999 matters;

(2) 	it erred in making findings or rulings upon those matters; and

(3) 	it failed to heed its own direction referred to at paragraph 10.11 of the Extended Reasons that the post-1999 matters were “not relevant to the issues in these matters because they occurred after the presentation of both the complaints which we are considering but are facts which the applicant has asked us to take into account for background purposes”.

16.	Mr Davies QC appears for Mr Deman on the appeal.  He makes no complaint of the fact that the Employment Tribunal acceded to the request of Mr Deman that it take into consideration matters said to be relevant and arising after the date of presentation of the last of the originating applications that that Tribunal was considering.  Indeed, on the basis of long-established authority (see, for example, Chattopadhay v Holloway School [1981] IRLR 487, EAT), the Tribunal might well have erred in law in failing to accede to the request made by Mr Deman to consider these matters once they had satisfied themselves that they might be relevant to the issue before them.

17.	Mr Davies’s challenge lies along a different path.  He contends that once having taken into account those more recent facts and having recorded them, the Haynes Tribunal ought to have limited their function to considering whether those factual matters assisted them in determining the complaints of discrimination and/or victimisation that were specifically before them, i.e. the complaints in regard to matters prior to November 1999.  He submits that they erred in going further.

18.	In considering those submissions, we have had the advantage of written submissions in reply lodged by the Respondents.  Before dealing with our conclusions on that appeal it is sensible to relate what next occurred by reference to the subsequent hearing before the Sigsworth Tribunal.

The Sigsworth Appeal

19.	On 18 and 19 November 2002, there came before the Employment Tribunal for determination the fifth of Mr Deman’s Employment Tribunal originating applications (i.e. that lodged on 11 June 2001).  That raised complaints of discrimination and/or victimisation including matters occurring after the filing of the fourth complaint (14 November 1999) but before the lodging of the fifth complaint (11 June 2001).  As might be supposed, that complaint covered similar territory to the additional factual material which the Haynes Tribunal had been urged to consider during the hearing before that Tribunal.

20.	Perhaps unsurprisingly in the circumstances, the Respondents applied to the Sigsworth Tribunal to strike-out the fifth originating application on the basis that the matters contained within it had earlier and recently been determined by the Haynes Tribunal.  Put shortly, the Respondents’ case was that the Applicant, Mr Deman, was seeking to re-run consideration by an Employment Tribunal of matters in relation to which an earlier Employment Tribunal had made relevant and adverse findings of fact.  The Respondent’s application was opposed by Mr Deman who was represented before the Sigsworth Tribunal by Mr Davies.

21.	The Respondents’ application to strike-out succeeded (save in respect of one matter which was stayed to await the outcome of any appeal against the substantive striking-out decision).  Further, the Sigsworth Tribunal ordered that the Applicant pay costs in the sum of £9,752.50 to the Respondents.  They concluded that the Applicant had pursued complaints which were misconceived and/or acted unreasonably in the conduct of the proceedings.

22.	From that decision, i.e. the Sigsworth Tribunal decision, Mr Deman lodged a Notice of Appeal with this Employment Appeal Tribunal on 24 February 2003.  That Notice of Appeal takes issue both with the finding that it was appropriate to strike-out the bulk of the application and with the Order in relation to costs.  In summary, the Notice of Appeal contends that the Sigsworth Tribunal erred in law in holding that either an issue estoppel applied or that it would be an abuse of process for Mr Deman’s complaints to be considered on their merits in the light of the matters which had occurred at the Haynes Tribunal.

The Common Theme in these Appeals

23.	As will immediately be apparent, these appeals essentially raise two linked questions.  Firstly, what is the correct method by which an Employment Tribunal should entertain and dispose of matters urged upon them by an applicant which antedate or post-date the specific matters embraced in the application made to the Tribunal about which they are concerned to reach a conclusion? Secondly, what is the correct approach to be taken by a subsequent Employment Tribunal invited to consider an application raising the same factual material as has been previously entertained and considered by another Employment Tribunal as “foreground” or “background” material?

The Relevant Law

24.	It is common ground between the parties that an Employment Tribunal considering a complaint of discrimination (on whatever grounds) or victimisation, may properly take into account in assisting them to reach conclusions on those complaints, matters which either antedate or postdate the specific complaints themselves.  Consideration of such matters, postdating or antedating the specific complaints, can assist a Tribunal in understanding both the “background”, (i.e. the period leading up to the specific complaints with which they are concerned) and the “foreground” (that is the more recent history).

25.	As we have indicated, the admissibility of such material is well established (see the Chattopadhay case referred to above).  The references to “background” and “foreground” are to be found in the well known decision of this Employment Appeal Tribunal in Qureshi v Victoria University of Manchester [2001] ICR 863.  In that case Dr Qureshi had been denied promotion on what he contended were racial grounds.  As the Employment Appeal Tribunal (Mummery J. (as he then was) presiding) record at page 874F:-

“Dr Qureshi relied extensively on circumstantial evidence that there was a racial ground for the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years from 1988 to 1994. The incidents relied on by him antedate, accompany and postdate, the alleged acts of racial discrimination and victimisation particularised in his 1993 and 1994 applications. It was necessary for the Tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue, namely, whether the act and decisions complained of in the proceedings were discriminatory “on racial grounds”. [Emphasis added]

26.	In that case the Employment Appeal Tribunal described the responsibility of an Employment Tribunal as being to “find the facts” relating to those incidents which antedate, accompany or postdate the alleged acts of racial or other discrimination.  It described those facts, i.e. the non-directly material facts, as “evidentiary facts”. That phraseology “evidentiary facts” is picked up again later in the judgment (page 875F).  As the Employment Appeal Tribunal observed:

“There is a tendency, however, where many evidentiary incidents or items are introduced to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself in relation to each such incident or item, whether it was itself explicable on “racial grounds” or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the Respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on “racial grounds”. The particular importance of “evidentiary facts” is that they may assist the Tribunal in the difficult task of determining precisely why an applicant was treated in the way he or she was in relation to the specific complaints which are subject of the originating application.  From the force of the primary or evidentiary facts it may be possible for the Tribunal to justify an inference of racial grounds where there is no direct evidential material.”

27.	As this Tribunal recorded in Qureshi, however:

“It may find that any inference that it might have made is negated by a satisfactory explanation from the Respondent of non-racial grounds of action or decision”.

28.	It is common ground in the present appeal that the Employment Tribunal must proceed on the basis of taking into account the evidentiary facts and matters urged upon them by the complainant.  Indeed, in delivering his judgment in Anya v University of Oxford [2001] ICR 847, LJ Sedley said:-

“What King and Qureshi tell Tribunals and Courts to look for in order to give effect to the legislation are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair minded decision was or equally was not affected by racial bias”.

29.	Thus, in the instant case, the Employment Tribunal (the Haynes Tribunal) was urged by Mr Deman to take into account matters arising after the time of the particular matters mentioned in his two originating applications, so as to see whether they may demonstrate that the particular acts or omissions complained of were or were not affected by racial bias.

The Submissions of the Parties

30.	In his attractive written and oral submissions, Mr Davies contends that it was no part of the function of the Haynes Tribunal to make “binding” findings of fact in relation to matters arising post-1999. He makes no complaint of the Tribunal’s consideration of those matters, or the entertaining of them, but he does urge that there could be no conclusive disposition of those factual matters because the Tribunal was not seized of any specific complaint or allegation of discrimination or victimisation in relation to them.  On his approach, the Tribunal, having recorded the facts which they found in paragraph 10 of their Extended Reasons, ought to have asked themselves the simple question whether that material assisted them in determining the actual complaints of discrimination and victimisation which were before them.  Once the Haynes Tribunal had satisfied themselves that no assistance could be derived by them from those facts they should have stopped at that point.  He, therefore, contends that in relation to these “evidentiary matters” the Tribunal should not have determined them as a matter of substance. Or, if investigation were called for, ought not to have reached conclusions as to “why” the facts or matters relied upon by the Applicant had occurred.  If we have understood his submissions correctly, this would involve simply considering the Applicant’s account of the factual matters and finding whether they occurred or not.  This would not seem to permit consideration of an “answer” from the Respondent to each of the matters introduced by the Applicant as to “whether” or “why” they occurred.

31.	Mr Sethi for the Respondents, in written submissions, seeks to uphold the approach taken by the Haynes Tribunal to the question of the background material.  First, he submits that the Haynes Tribunal correctly and properly understood and directed itself that the material post-1999 was truly “background material”.  He reminds us of paragraph 13 of the Extended Reasons wherein the Tribunal directed themselves:

“We are not limited to considering the facts put forward in the ambit of the issues before us but can consider incidents which happened both before and after that period as background material”.

32.	He submitted that the Tribunal’s consideration of the post-1999 matters had been entirely at the instigation of the Applicant and that the Applicant had made the procedural applications necessary to put the evidence relating to the 2000 and 2001 matters before the Tribunal.  He contends that the Tribunal dealt properly and reasonably with the material before them.  He submits that the Haynes Tribunal made no error of law.

Deciding “Evidentiary Matters”  

33.	In our judgment, it inevitably follows from the approach taken by this Tribunal in Qureshi and by the Court of Appeal in Anya that an Employment Tribunal must take into consideration relevant factual matters urged upon them by an Applicant which arise either before or after the material subject of the substantive complaints before them and which may assist them in determining whether the Applicant’s assertions of discrimination and/or victimisation are made out.

34.	Further, it is the responsibility of an Employment Tribunal to make findings of fact upon those additional matters.  Without such basic findings it is impossible to know whether the ante-dating or post-dating matters in fact occurred or for what reason or in what circumstances they occurred.  Thus, it may be urged by an Applicant, in a hearing of a complaint concerning an allegedly discriminatory act that occurred in 2002, that in 2001 or 2003 the same Respondent was guilty of subjecting him to similar detriment in the same respect.  It seems to us inevitable that if that matter is raised and entertained by the Tribunal, the Tribunal must make a finding as to whether such earlier or further incidents occurred and whether they were occasions on which the Applicant was subjected to less favourable treatment and, if so, why.  It is only after such conclusions have been made that the Tribunal can know whether the material assists, or does not assist, in weighing and evaluating the Applicant’s primary complaints.

35.	In order for Mr Davies to succeed in his submissions he has to persuade us that there is something short of a full finding of fact which does amount to a finding but is of only quasi determinative status.  Thus, as we have already indicated, he invites us to accept that the Tribunal should, as it were, identify in relation to the “evidential facts” whether there is the gravimen of material in them which will assist on determining the substantive complaints.  Only such a preliminary determination is necessary.  He urges that if such preliminary determination indicates that the material is likely to be of no assistance in determining the substantive complaint then the Tribunal should not make full findings of fact on these evidentiary matters.

36.	We are unable to detect in the developing jurisprudence in this area any scope for such a half-way house.  Indeed, to accede to these submissions would put Applicants in such cases in a remarkably favourable position.  They would be able to deploy a range of facts and matters pre-dating and post-dating the specific complaints made to the Tribunal and expect them to receive only a “litmus testing”.  Only if the litmus testing is favourable to the Applicant would the Tribunal then go on and take the matters into account.  This, in our judgment, affronts any sense of natural justice.  If the Respondent is able to show, in relation to a matter proposed by the Applicant as demonstrating prior or subsequent discriminatory behaviour, that there is not a scintilla of justification in that complaint then that is a matter which must be weighed into the balance also.

37.	Thus, in the instant case, Mr Deman was urging upon the Haynes Tribunal that it should accept that the post 1999 evidentiary facts on which he relied were instances of yet further discriminatory behaviour or victimisation by the Respondents.  The Tribunal, having examined these evidentiary matters, determined that there was no element of discrimination or less favourable treatment within them and that they were matters explicable on entirely different grounds. Indeed, the instant case is a paradigm. Mr Deman’s relevant substantive complaint was that prior to November 1999 he had been subjected to less favourable treatment on racial grounds in the refusal to provide him with legal aid in certain proceedings.  He asked the Tribunal to consider the fact of later refusal of legal aid for other proceedings as useful background in determining his substantive complaint.  In our judgment it was not only proper but essential for the Employment Tribunal to hear the evidence of both parties and find the facts relating to the later refusal.  As the Tribunal aptly put it

“It was the Applicant’s right that these matters should be considered as background, but the Respondents had an equal right to explain the events from their point of view”.  [Para 5.4.1]

38.	Having found that there was indeed a later refusal of legal aid but it was for a perfectly rational reason, wholly devoid of any element of discrimination or victimisation, they were entitled, and in our judgment bound, to say so.  That would be the least necessary to enable the Applicant and any other reader of their decision, to understand why the later refusal of legal aid did not assist them in drawing any inference as to the circumstances of the earlier refusal.

39.	In those circumstances, we reject the challenge brought by Mr Deman to the decision of the Haynes Tribunal.  It seems to us that the Haynes Tribunal did precisely what it was invited to do by the Applicant himself.  It looked at matters subsequent to 1999 for the purpose of determining (on the basis that they were relevant) whether they enabled an inference to be drawn that there had been discrimination or victimisation in relation to the matters of which the Tribunal was expressly seized.  The Tribunal made findings of fact in relation to those later matters and those findings of fact were findings which the Tribunal was, in our judgment, required to make rather than, as Mr Davies would have it, findings it should have stopped short of making.

40.	Accordingly, we reject the contention that the Haynes Tribunal erred in law in handling, in the way it did, the more recent matters urged upon it by Mr Deman.  Having already dismissed all of the other grounds set out in his Notice of Appeal, and now having rejected the grounds within the purview of the present judgment, we are compelled to dismiss Mr Deman’s appeal against the Haynes Tribunal decision.  As we have already indicated in our extempore judgment (on the other aspects of the Notice of Appeal in the Haynes Tribunal case), the time limit for any appeal against either this reserved judgment or the extempore judgment and the orders consequent upon those judgments will run from the date of the sealed Order which follows this judgment.

The Sigsworth Tribunal “strike-out”

41.	The next issue, therefore, is to determine whether the Sigsworth Tribunal dealt appropriately or erroneously with the circumstance in which it found itself as a result of the Haynes Tribunal’s Extended Reasons.

42.	The Sigsworth Tribunal was considering the originating application presented by Mr Deman on 11 June 2001.  The Tribunal summarised the issues raised by that originating application in paragraph 1 of their Extended Reasons by reference to a list that had been prepared for them by the Respondents’ representative, Mr Sethi.  Mr Deman’s representative (Mr Davies) took no issue with this formulation of the matters.  This distillation of the originating application produced some nine issues which fell for consideration by the Sigsworth Tribunal.  The first and fourth of those issues were issues which had formed part of the substantive complaint entertained by, and determined by, the Haynes Tribunal.  The second and third matters were matters of the Respondents’ handling of legal aid applications which had formed the “background” issues which the Applicant had invited the Haynes Employment Tribunal to consider.  The fifth to eighth issues were issues which raised a question as to whether they were brought before the Tribunal in time.  The ninth issue raised a discrete matter which had been brought within time and which the Sigsworth Tribunal eventually stayed.

43.	We can quickly dispose of the matters which were “out of time”.  The original basis for their inclusion in the fifth originating application had been that these matters were but part of a continuing discriminatory practice applied to Mr Deman by the Association and the individual officers who were Respondents. The necessary consequence of the findings by the Menon and Haynes Tribunals was that there was no such continuing practice, or policy, adopted by the Respondents.  Mr Davies, appearing before the Sigsworth Tribunal, candidly recognised that that was so.  Nevertheless, he maintained an application that the “out of time” matters should be entertained by the Sigsworth Tribunal on the basis that was just and equitable for them to be heard.  No additional material was available to the Sigsworth Tribunal in support of that contention.  In short, it was rejected on the basis that there was no evidence to justify the exercise of the discretion for an extension of time.  No appeal is brought by Mr Deman against that disposal of the “out of time” issues.

44.	That left, therefore, the two issues which had been substantively considered by the Haynes Tribunal and the two issues which had been embraced in their background consideration.  The striking-out of the two issues which had formed part of the substantive complaints considered by the Haynes Tribunal was, in our judgment, a matter of inevitability.  Whether expressed as covered by some form of estoppel (most aptly res judicata) or by the principle of abuse of process, it could not realistically be contended by Mr Deman that the Sigsworth Tribunal should consider two matters which had formed part of the substantive originating applications considered by the Haynes Tribunal.

45.	The real dispute, therefore, turns on the Sigsworth Tribunal’s handling of the remaining two issues, i.e. the issues which had been covered by the Haynes Tribunal as part of the “background material” in that case.   

46.	The carefully pleaded Notice of Appeal in relation to the Sigsworth decision can be collapsed down to a single point.  It having found that two matters of complaint in the originating application before it had been almost entirely covered by the “background material” entertained by the Haynes Tribunal, the Sigsworth Tribunal had struck-out those two matters.  Mr Davies contends that the Sigsworth Tribunal was wrong to do so.  He urges that the Tribunal misapplied the principle of issue estoppel and/or the wider principle of abuse of process in acting as it did.  More particularly, he contends that Mr Deman is denied a remedy in relation to those matters arising in 2000 and 2001.  He submits that the Haynes Tribunal had had no jurisdiction to determine those matters and the striking-out of the application covering those matters by the Sigsworth Tribunal, was wrong.

47.	Those grounds outlined in the Notice of Appeal are amply augmented by the Skeleton Argument lodged by Mr Davies.  He contends that the findings of the Haynes Tribunal were neither “necessary” nor “relevant” to the issue before the Sigsworth Tribunal.  In those circumstances, they do not make the necessary building blocks with which to assemble the finding of issue estoppel on which the Sigsworth Tribunal relied.

48.	Mr Sethi, for the Respondents in the Sigsworth appeal, also deploys a detailed Skeleton Argument and contends that the Tribunal made no error of law.  The footprint of the findings of fact made by the Haynes Tribunal, he contends, exactly fitted the two relevant complaints before the Sigsworth Tribunal on the “background matters”. The facts that had been advanced before the Haynes Tribunal had been advanced on the initiative of Mr Deman himself and had formed part of his positive case.  It was Mr Deman who had objected to the consolidation of the later originating application with the earlier applications. There was no new relevant documentary or witness evidence which the Sigsworth Tribunal needed to consider which had not itself been considered by the Haynes Tribunal.  In essence, he submitted that this was a classic case of issue estoppel or, more broadly, a case in which it would be abuse of process to allow Mr Deman to re-run his complaints concerning the Association and its officers over essentially the same territory as had been covered by the Haynes Tribunal.
 
49.	The Sigsworth Tribunal itself carefully considered these respective contentions and in their Extended Reasons expressed their conclusions in the following terms:-

“12. We have concluded on the basis of our close scrutiny of the Haynes decision that the issues before that Tribunal are identical with the issues before us - namely: whether in respect of the legal aid applications (QUB and Greenwich) and the complaints concerning Belfast AUT, the Applicant was less favourably treated by the First Respondent and its officers on grounds of race or because he had committed a protected act.  It cannot matter that the Haynes Tribunal was concerned with events in 2000 and 2001 as background (or more properly foreground). They considered these events because the Applicant asked them to do so. The Haynes Tribunal made extensive findings of fact on this evidence and used those findings as its basis (in part at least) for reaching its conclusion that no direct race discrimination or victimisation occurred in respect of those legal aid applications or the handling of the complaints about Belfast AUT. The Applicant is asking us to revisit the same events and make different findings of fact and/or reach different conclusions. We are not an Appeal Tribunal and we cannot do this.

13. The Haynes Tribunal findings are crystal clear and precise. Further, they were relevant and necessary for the decision in that case, as is readily apparent on reading that decision. Finally, it was clearly not outside the Haynes Tribunal’s jurisdiction to make such findings or reach such conclusions ...

14. It would be an abuse of process to relitigate these matters, precisely for the reason that issue estoppel arises but more generally because there must be finality in litigation and employers cannot be expected to defend themselves against the same complaints more than once ...”

50.	In reaching those conclusions, the Tribunal considered the various authorities to which they were referred, including the speeches of the House of Lords in the leading case (on “abuse of process”) of Johnson v Gore Wood & Co [2002] 2 AC 1.

51.	In our judgment, the Sigsworth Tribunal acted perfectly correctly.  The primary basis on which they struck out the relevant complaints was “issue estoppel”. It is not in dispute that the principles of “issue estoppel” apply to the Employment Tribunal jurisdiction just as much as they apply in any court of record: see, for example, McLoughlin v Gordons (Stockport) Ltd [1978] 1RLR 127. Nor is it suggested that the Employment Tribunal gave themselves anything other than perfectly proper directions as to the ingredients of issue estoppel (at paragraph 9 of their Extended Reasons) which were in line with the recent restatement of principles of issue estoppel in Arnold v National Westminster Bank PLC [1991] 2 AC 93, HL.  As this Tribunal has said in Air Canada v Basra [2000] 1RLR 683.

“[T]he question when considering issue estoppel is whether the relevant finding has been made by a tribunal determining one cause of action in the first proceedings which then precludes a different finding being made in the second set of proceedings upon which the second cause of action depends.” [para 73] 

52.	In our judgment it is plain that in the course of the hearing before the Haynes Tribunal, that Tribunal was called upon to entertain and determine disputes of fact arising between the parties concerning matters in 2000 and 2001.  Correct it is that those disputes of fact would not themselves be determinative of the substantive issues before the Haynes Tribunal.  However, they would certainly inform the determination by the Haynes Tribunal of the substantive matters before it as, indeed, they came to do.  It was the Applicant himself who had brought those matters into the frame before the Haynes Tribunal and, indeed, by the procedural applications that he had made he had caused that Tribunal to examine the factual background to those additional matters in some detail.  Further, it was the Applicant himself who had opposed the Respondents’ proposal that the originating applications all be tried together.  It was common ground that Mr Haynes had warned the Applicant of the consequences that would or might follow if he pursued his proposed course.

53.	We have been taken by Mr Sethi in support of his submissions to the relevant passages in Harvey on Employment Law.  Both Mr Davies and Mr Sethi have drawn our attention to particular decisions in the commentary given in Harvey which they considered might be of assistance.  We were referred to, amongst others, McLoughlin v Gordons (Stockport) Limited [1978] IRLR 127, EAT and Ahuja v Inghams [2002] EWCA Civ 1292, CA.  Neither of those decisions were precisely in point and we derived little further assistance from them.

54.	It is somewhat surprising that this issue has not arisen previously.  In particular, since the endorsement of the approach of introducing background material given by the leading Anya case.  However, notwithstanding the absence of previous judicial consideration of the matter, we have without hesitation reached the conclusion that both the Tribunals in the instant case conducted themselves correctly.  The Haynes Tribunal was right to admit, in evidence before it as relevant material, the material post-dating the complaints into which it was enquiring.  It had to reach findings of fact upon that material.  In our judgment, those findings were binding on any subsequent Employment Tribunal and, in so far as any subsequent complaint sought to re-open the findings in relation to that material, it would be prevented from doing so by operation of the principle of issue estoppel.  We record Mr Sethi’s concession, which we consider correct, that had the Haynes Tribunal found facts adverse to the Respondents, the Sigsworth Tribunal would have been bound by those findings also.  This effectively counters Mr Davies’s submission that issue estoppel could not “bite” because the Haynes Tribunal had no jurisdiction to give Mr Deman any remedy in respect of the 2000 and 2001 matters even it it had accepted his account of them. Such remedy could have been obtained from the Sigsworth Tribunal which would have been bound by any findings in Mr Deman’s favour made by the Haynes Tribunal.

55.	The Sigsworth Tribunal sensibly, and in our judgment correctly, proceeded on the basis that the Respondents’ had permission to amend to plead the issue estoppel point and acceded to the application to dismiss on that basis.  We can find no error of approach in their reasoning or in their ultimate conclusion.

56.	Before leaving this appeal, it is right to record that the Sigsworth Tribunal would have reached the same conclusion by any number of different routes.  As they indicate [at paragraph 14 of their Extended Reasons] the same result would have followed whether they had approached the matter on the basis of submissions of abuse of process or on the footing that natural justice demanded the exclusion of the “repeat” complaints by the Applicant.  Indeed, in their view, the same result would have followed from the application of the “overriding objective”. That is that the Tribunal’s procedure regulations must be applied so as to observe the overriding objective of producing the just disposal of cases.  By the Notice of Appeal it is complained that the Tribunal have not provided sufficient reasons to justify their conclusions in these respects.  In our judgment there is nothing in that complaint.  It is self-evident that the Tribunal was deploying in support of each of those conclusions precisely the same reasoning that had informed its judgment on the question of issue estoppel.  To borrow Lord Bingham’s well known phrase from Johnson v Gore Wood (see above):

“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter”.

57.	Mr Davies’s broad submission, that a Tribunal Applicant should be free to raise by way of substantive complaint a matter that a previous Tribunal has considered by way of “background” in its determination of a different complaint would lead to a proliferation of litigation in respect of the same factual matters which would be both unhealthy and unfair.  At its worst extreme, an individual could have three Employment Tribunal hearings in respect of the same matter occurring, say, in the year 2002.  In relation to any particular incident, act or omission, the employee or other Applicant could make that matter the substantive basis for a complaint to an Employment Tribunal for one particular hearing and then in two different hearings about different substantive complaints invite those Tribunals to re-open the same matter as respectively matters of “foreground” or “background”.  In our judgment, this is impermissible whether the controlling mechanism to prevent its deployment is the general term “abuse of process” or the giving effect of the “overriding objective” or the importance of doing natural justice to both parties, i.e. including Respondents.  Fortunately, there is an even more straightforward course to prevent this particular potential abuse and that is the one followed by the Sigsworth Tribunal, i.e. the application of the well known rule of issue estoppel.  Accordingly, it must follow that we dismiss the substantive appeal in the Sigsworth Tribunal case.

The award of costs

58.	The Sigsworth Tribunal made a significant award of costs against the Applicant, Mr Deman, on the dismissal by striking-out of the bulk of his originating application.  The reasons for that award are contained in paragraphs 20 through to 23 of the Tribunal’s Extended Reasons.  It is important not to misunderstand the reason for the award of costs.  The award was not made in order to penalise Mr Deman for the failure of his case on issue estoppel in respect of two of the nine aspects of the originating application.  Rather, the Tribunal’s award is explained by reference to a number of matters.

59.	First, the originating application before them included matters which were, on the fact of it, out of time.  Those matters could only be sustained if the earlier Employment Tribunals (in their determination of Mr Deman’s complaints) had found a pattern of continuing discrimination and/or victimisation.  As Mr Deman knew in advance of the hearing before the Sigsworth Tribunal, no previous Employment Tribunal had upheld any of his complaints against these Respondents.  In those circumstances, the Sigsworth Tribunal considered that the application to adduce complaints which were out of time, on the basis that there had been a continuing act of discrimination/victimisation, was (to put it in our words) “hopeless”.  Indeed, Mr Davies who did not seek to contend to the contrary.  Instead, he had developed before the Sigsworth Tribunal an application to extend time to admit the stale complaints on the basis that it was just and equitable for the time limit to be extended.  As the Sigsworth Tribunal found, there was no material before them to support such an exercise of discretion.  In those circumstances, they took the view that the continued pursuit of the out-of-time applications was either unreasonable or misconceived from the outset.

60.	Secondly, the Sigsworth Tribunal considered that Mr Deman had had an opportunity since the Haynes Tribunal’s decision was promulgated to consider that it had made clear adverse findings in relation to the matters which were the subject of the pending hearing. That covered both substantive issues and the two Haynes “background” matters. In those circumstances, the Tribunal considered that any reasonable Applicant would have abandoned the substantive claim before them rather than attempting, with the assistance of counsel, to “keep unsustainable claims going” (to use the Tribunal’s words).

61.	We have very carefully considered the appeal against the exercise of discretion in relation to costs.  We have done so particularly as the Employment Tribunal is generally a “no costs” jurisdiction and the award of costs in this case is in a significant sum.  However, we have equally cautioned ourselves that we ought not to interfere with the broad exercise of discretion by an Employment Tribunal on the costs question unless an error of law is clearly established.

62.	Mr Davies has urged that at least some part of the award of costs had been imposed by reason of the contestation of the “issue estoppel” point.  He submits that Mr Deman’s argument on that point was not “unreasonable or inappropriate”.  Accordingly, he submits that the Tribunal’s failure to discretely identify and separate out the costs occasioned by that argument vitiates the whole award.  We reject these submissions.  Although the application of “issue estoppel” in this particular branch of Employment Tribunal jurisdiction might be said to have given rise to interesting and novel contentions, the fact is that the Tribunal made it quite plain - for reasons they gave and which we have upheld - that whatever the result on issue estoppel the attempt by Mr Deman to re-open factual matters earlier found against him also failed (and was bound to fail) on much broader grounds. 

63.	We can find no misdirection by the Tribunal in its reasoning relating to costs.  It plainly had regard to relevant considerations and took no irrelevant considerations into account.  It was called upon to exercise a broad and sensible discretion.  We can detect no error in the Tribunal’s approach or in its conclusion on the costs question.  In those circumstances, the appeal against the order of costs is likewise dismissed.

64.	In the event, therefore, both the appeal against the Haynes Tribunal decision and the appeal against the Sigsworth Tribunal decision are dismissed.  Both Tribunals are to be commended for the way in which they discharged their responsibilities.  The decisions we have been called upon to review have been models of clarity and thoroughness.