Appeal No:  UKEAT/0290/07/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 March 2008

Before
THE HONOURABLE MR JUSTICE UNDERHILL
(SITTING ALONE)

MR T B NICHOLLS	APPELLANT

(1) CORIN TECH LIMITED	RESPONDENTS
(2) LARASIAN LIMITED
(3) MR C O’CONNELL
(4) MR B CURRIE

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T B NICHOLLS
(The Appellant in person)	
For the Respondents	MR B CURRIE
(The Respondent in person)
Representing himself and the first Respondent

SUMMARY

Disability Discrimination	–	 Post employment
Practice and Procedure	– 	Striking-out/dismissal

Claimant ex-employee in disability discrimination proceedings allegedly subjected by Respondent to abuse and intimidation calculated to deter him from proceeding in the corridor of the Tribunal following a hearing.  Claim summarily dismissed by Chairman on basis that alleged conduct attracted the “judicial proceedings immunity”.

Held (1) that if the conduct were proved it would arise out of and be closely connected with the employment relationship and would accordingly fall within the terms of s16A(3) of the Disability Discrimination Act 1995;  (2) the alleged conduct would not attract judicial proceedings immunity.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	The Appellant, Mr Nicholls, was employed by the first Respondent, Corin Tech Limited, between 26 May 2004 and 15 January 2006.  Following the termination of his employment he brought proceedings against Corin Tech alleging, inter alia, disability discrimination.

2.	On 11 and 12 April 2007 there was a hearing in the Southampton Employment Tribunal to determine the issue as to whether Mr Nicholls suffered from a disability within the meaning of the Disability Discrimination Act 1995.  Mr Nicholls objected to some aspects of the way in which Corin Tech prepared for and conducted that hearing.  He also says that immediately after the conclusion of the hearing on the second day, when the Tribunal had reserved its decision, he was subjected to threats and abuse by Mr Brian Currie.  Mr Currie owns Corin Tech, through a parent company called Larasian Limited, and is a director of it, and he had had the conduct of the hearing on behalf of Corin Tech.  

3.	Mr Nicholls sought to raise those complaints - that is to say, the complaints about the way in which the hearing had been prepared for and conducted and the complaint about Mr Currie’s behaviour immediately afterwards - in fresh proceedings before the Employment Tribunal.  The Respondents to those proceedings were Corin Tech, Larasian, Mrs O’Connell, an employee of Larasian who had responsibility for Human Resources issues within the group of companies, and Mr Currie himself.  He presented his ET1 on 22 April 2007.  

4.	On 8 May the Regional Secretary wrote to Mr Nicholls as follows:
“I am returning your claim because it raises a matter which an Employment Tribunal has no power to determine, namely, that it relates to the conduct of a previous proceedings and is not a matter for an Employment Tribunal.  A Chairman, Mr R Peters, has, therefore, decided that it cannot be accepted.”
Although the phrase “immunity” was not used in that letter, it is plain that the Chairman was rejecting Mr Nicholls’ claim on the basis that the matters of which he sought to complain all attracted the absolute immunity which attaches to things said or done in the course of judicial proceedings (to which I will refer as “judicial proceedings immunity”).  The most recent discussion of that immunity is to be found in the decision of the Court of Appeal in Heath v Commissioner of Police of the Metropolis [2005] ICR 329.

5.	Mr Nicholls has appealed against the decision contained in the letter of 8 May 2007.  At a preliminary hearing on 10 October 2007, HHJ Richardson dismissed the appeal as regards Mr Nicholls’ complaints about the preparation for and conduct of the hearing before the Tribunal, but he allowed it to proceed to a full hearing as regards the justiciability of the complaint about the conduct of Mr Currie on 12 April 2007.  That is the matter which is now before me.  Mr Nicholls appears in person.  Mr Currie likewise appears in person both on his own behalf and on behalf of Corin Tech.

6.	I should start by setting out the terms of the ET1.  In section 6 - that is, the section concerned with discrimination - Mr Nicholls ticked the heading “Disability” and referred to an attached document.  The attachment set out his various complaints.  The only part which is relevant is paragraph 2(3) of the attachment, which reads as follows:
“The fourth Respondent, Brian Currie, knowing that the Claimant did have two outstanding grievances with the four Respondents … did, on 12 April 2007, at about 4.45pm, cause serious harassment to the Claimant at the Southampton Employment Tribunal’s fourth floor outside the lifts.  The Claimant strongly believed after being strongly abused and strongly threatened by Brian Currie that if he made any more allegations against Brian Currie’s employees or Brian Currie, or took his outstanding grievances further, that he would suffer a serious injury caused by violence to his person.  Please see the complaint; faxed letter to the four Respondents dated 12 April 2007, faxed 13 April 2007.”

The letter there referred to reads as follows:
“Subject: Serious Complaint

1.  Today, 12 April, the Southampton Employment Tribunal heard the final day of the hearing to decide if the Claimant has a disability within the meaning of the Disability Act.  When the proceedings commenced Brian Currie announced to the Tribunal Chairman, Mr Scott, that for the hearing that day he would be representing the Four Respondents and not their solicitors Lester Aldridge.

2.  The hearing concluded about 4.42pm.  First to leave the Tribunal Room 3 were Brian Currie, Mike Barton, Chris O’Connell, and a further lady, who the Claimant understands is the Corin Tech Ltd Personnel Officer.  After a couple of minutes the Claimant and his son Mark Nicholls also departed.

3.  When the Claimant and his son arrived at the lift area (4th floor) they found Brian Currie, Mike Barton, Chris O’Connell and the Personnel Officer waiting for a lift.  Immediately on Brian Currie seeing the Claimant, Brian Currie walked over to the Claimant and came up close to the Claimant’s face and in a very angry tone said:
“Fucking Jailbird.  Fucking Crook.  Do not say any more allegations about my employees.  Don’t say a word, if you do, I will give You a disability.  You fucking Crook.”

4.  The Claimant was totally shocked and stayed silent.  The Claimant was completely surprised by Brian Currie’s threatening with menaces behaviour, as when Brian Currie arrived in the morning he shook hands with the Claimant, plus had a nice smile.  The lift arrived and Brian Currie and his team then departed.  The Claimant gave them 4 / 5 minutes to leave, and then the Claimant and his son caught a lift to the ground floor.

5.  The Claimant contends that Brian Currie’s threatening tactics are further evidence of the Respondents harassment against the Claimant.”

7.	Although he uses the term “harassment” in the ET1, Mr Nicholls put his case before me primarily on the basis that his complaint is one of discrimination by way of victimisation (see sections 3A and 55 of the 1995 Act) and not of harassment within the meaning of section 3B.  The distinction may be important because the Tribunal found in the first proceedings that he was not suffering from a disability (though that finding is subject to appeal), so that a claim under “straight” section 3A or section 3B would be unpromising, whereas all that is necessary for a claim under section 55 is that he should show that he had been treated in the manner complained of by reason of the fact that he had brought proceedings under the 1995 Act whether or not he was in fact disabled.  Although the word “victimisation” is not used in the ET1 or the annexed documents and there is no explicit reference to section 55, I accept that such a claim can properly be understood from it.  I note in particular the allegation that Mr Nicholls understood Mr Currie to be saying that he would suffer a serious injury if he took his outstanding grievances any further.

8.	I must assume for the purpose of this appeal that the factual account given by Mr Nicholls is true.  It is right, however, that I should record that while Mr Currie very fairly acknowledges that there was indeed an incident of the kind that Mr Nicholls alleges, he says that the detail of what he is alleged to have said and done has been much exaggerated.  He says that he had been angered by some outrageous things which Mr Nicholls had said in the course of the hearing and that he expressed himself afterwards in a way which he now regrets and which was inconsistent with the generally civilised manner in which, as Mr Nicholls accepts, the proceedings had been handled up to that day.  But he denies that he says or did anything that could reasonably have been understood as a threat of violence or, as I understood him, as anything intended or calculated to put pressure on Mr Nicholls not to proceed with his case.  I cannot resolve the difference between those two accounts on this appeal, but it must be appreciated that if all that happened in the case was indeed a show of anger or exasperation in the aftermath of a heated hearing, the issues would look very different from those which I at this stage have to determine.

9.	At the time of the acts alleged, Mr Nicholls was of course no longer employed by Corin Tech but he relies on the provisions of section 16A of the 1995 Act, which came into effect on 1 October 2004 and reads, so far as material, as follows:

“16A     Relationships which have come to an end

(1)	This section applies where: 

(a) there has been a relevant relationship between a disabled person and another person (“the relevant person”) and

(b) the relationship has come to an end.

(2)	In this section a “relevant relationship” is: 

(a) a relationship during the course of which an act of discrimination against or harassment of one party to the relationship by the other party to it is unlawful under any preceding provision of this Part other than sections 15B and 15C, or 

(b) a relationship between the person providing employment services and a person receiving such services.

(3)	It is unlawful for the relevant person:

(a) to discriminate against the disabled person by subjecting him to a detriment or 

(b) to subject the disabled person to harassment where the discrimination of harassment arises out of and is closely connected to the relevant relationship.”

Mr Nicholls says that, this being a case of discrimination (albeit by way of victimisation), it falls within subsection (3)(a).  He says that the “relevant person” is Corin Tech, his previous employer, which is vicariously liable for Mr Currie’s conduct under section 58(2).  He says that Mr Currie himself is also liable under section 57.  I heard no argument on that but will assume it to be correct for present purposes.  It was common ground between Mr Nicholls and Mr Currie that on the basis of HHJ Richardson’s decision no claim lies against the other two Respondents.

10.	The Respondents by their Answer dated 11 December 2007 have sought to uphold the decision of the Chairman not only on the basis of judicial proceedings immunity but on what are pleaded as several other grounds.  There is in fact an element of overlap between those grounds, and on analysis they seem to me to resolve into two points.  

11.	The first point is that the conduct complained of did not arise out of and was not closely connected to the previous employment relationship between Corin Tech and Mr Nicholls and accordingly could not be unlawful under section 16A(3).  HHJ Richardson at the preliminary hearing anticipated that that was a point which was likely to be argued.
12.	The second point is that Mr Nicholls does not have a disability.  It is a nice point, on which I have not heard argument, whether the reference in section 16A(1) to “a disabled person” means that a claim of discrimination by way of victimisation by a person who is not in fact disabled cannot be brought by an ex-employee.  But I need not consider that point because it is not open to me on this appeal to decide whether or not Mr Nicholls is a disabled person.  Although, as I have said, the Tribunal has held that he is not, (a) that decision is subject to a pending appeal and (b), though this may be a purely formal point (I do not know enough about the facts to know whether it is), the decision in question will necessarily have been directed at a different moment in time from that which would be relevant for the purpose of the present proceedings.  Accordingly, I do not think that this second point raised by the Respondents arises at this stage.

13.	Thus, the issues falling for determination on this appeal are:  (1) whether the acts complained of would, if proved and subject to the question of judicial immunity, be capable of being acts “arising out of and closely connected to” the employment relationship between Mr Nicholls and Corin Tech; and (2), if so, whether such a claim would nevertheless fail because the acts complained of attract immunity.  I should emphasise that those issues are only the issues which arise on this appeal, which is an appeal against what was in effect the summary dismissal of the claim by a Chairman.  They are not necessarily the only issues that would arise if the claim were to proceed.  But I can only consider such issues to the extent that they are capable of summary determination, and the two which I have identified are the only ones that are relied on for that purpose.

14.	I take first the question whether the acts complained of arise out of and are closely connected to the employment relationship.  I start from the position that it is necessary that the acts in question should not only “arise out of” the relationship in question and be connected with it but that the connection should be “close”.  The requirement of closeness should be given due weight.  It should not be enough that the conduct in question would not have occurred but for the fact of the previous relationship or that some other indirect connection with that relationship can be shown.  Parliament expressly provided that the connection should be close, and the intention must be that it be sufficiently close to justify the case falling within the scope of a group of statutory provisions designed to protect employees.  Whether the requisite degree of closeness has been shown requires an exercise of judgment by a Tribunal which may not always be easy, as is illustrated by the decision of the House of Lords in Rhys-Harper v Relaxion Group plc [2003] ICR 867.  That decision pre-dated the coming into force of section 16A, but the exercise required by the ratio of the majority (in so far as a majority ratio can be established) is not dissimilar, and it is clear that not all the members of the House found it straightforward.  However, if the facts of the present case are as Mr Nicholls alleges, I do not think that it falls into what may be quite an extensive grey area.  On his case, the conduct in question occurred not only by reason of the fact that he had brought proceedings in the Employment Tribunal to vindicate his rights as an employee - which is a necessary part of his averment under section 55 - but, more specifically, in order to induce him not to proceed with his claim.  I cannot accept that if that is established the conduct in question would not be caught by section 16A.  In considering whether the connection is sufficiently close, it is legitimate, indeed necessary, to take account of the purpose behind the provision.  At least in part that purpose must be to ensure compliance with the United Kingdom’s obligations under EU law to see that employees, including ex-employees, are not inhibited in exercising their rights to seek judicial protection of their rights as employees:  see, for example, the passages in the decision of the European Court of Justice in Coote v Granada Hospitality Limited [1999] ICR 100 cited in the speech of Lord Hope in the Relaxion case at paragraphs 109 to 115.  It may, I repeat, turn out that Mr Currie’s conduct was not such as to engage that principle because it was not intended or calculated to deter Mr Nicholls from continuing with his proceedings.  In those circumstances it would be open to the Tribunal to find that the fact that the conduct in question occurred in the context of Tribunal proceedings against his previous employer did not constitute a sufficiently close connection for the conduct in question to be unlawful under section 16A(3), but that will depend on the details of the Tribunal’s findings of fact. 

15.	I turn to the second question.  The precise scope of judicial proceedings immunity may not be a straightforward question.  In the absence of professional representation I have not been taken to any of the authorities save Heath, and while that seems clearly sufficient for me to decide what I need to decide on this appeal I have not had the advantage of any full argument.  I will accordingly express my reasons in as limited a manner as I can.  It is clear that the policy underlying the immunity is that it is necessary in the interests of the judicial process that those participating in it should not be at risk of liability as a result of things which they have done as an integral part of that process.  The effect of the authorities is sufficiently summarised at paragraphs 106 to 109 of the judgment of Neuberger LJ in Heath at page 363.  He was, in fact, dissenting on one issue but the passage in question is not controversial.  I note in particular, the passage from the speech of Lord Hoffmann in Arthur J.S. Hall & Co. v Simons [2002] 1 AC 615 at page 697, where he said:

“The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely.  The interests of justice require they should not feel inhibited by the thought that they might be sued for something they say.”

That being the rationale for the rule, I cannot see how conduct of the kind alleged by Mr Nicholls against Mr Currie in the present case can fall within its scope.  The incident in the corridor did not form any part of the judicial process.  
16.	I will accordingly allow this appeal.  The claim may proceed against the First and Fourth Respondents only, on the basis of the allegations pleaded at paragraph 2 (3) of the attachment to the ET1.  I will extend the Respondents’ time for lodging an ET3 to 28 days from today.  Thereafter the case will have to proceed in accordance with directions given by the Tribunal in the ordinary way.  Mr Nicholls invited me, if I were to allow the appeal, to make directions which would enable his revived claim to be heard alongside proceedings currently pending in the Tribunal.  I do not, however, know enough about the present state of play in those proceedings to make such directions with any confidence

17.	I wish to make two points in conclusion.  

18.	Firstly, I have, as I have said, decided only those points which were explicitly raised before me.  There may be other points, whether of fact or of law, which are available to the Respondents.  I should not be taken to have decided any more than appears from the reasoning of this judgment.  I mention that in particular because Mr Nicholls himself referred in his ET1 to the possibility of some objection being taken on the basis of non-compliance with section 32(2) of the Employment Act 2002.  I have heard no argument about this.  As I say, it was not raised before me and I mention it now only because it appears in Mr Nicholls’ own documents.  I simply mention, however, in case either party regards it as significant, the provisions of regulation 6(4) of the Employment Act 2002 (Dispute Resolution) Regulations 2004, which may (I say no more than “may”) have the effect that the statutory grievance procedures do not apply in the present case.

19.	The second point which I wish to make in conclusion is this.  Even on Mr Nicholls’ own account, and still more on Mr Currie’s, this was a short-lived, one-off, incident with no long-term repercussions.  I can understand why Mr Nicholls was upset by it at the time, but he should give careful consideration to whether there is any real advantage to him from pursuing the claim, even if (which remains to be seen) he is successful in it.  Not every arguable act of discrimination is always worth pursuing, particularly where there are broader substantial claims in issue.  I know too little about the background to this case to say any more than that, but I certainly think that the utility of this litigation should be calmly considered.