Appeal No. UKEATPA/0311/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 2008

Before
HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR W SINGH	APPELLANT

LONDON UNDERGROUND LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MR EGYPT EGYPT
(a non practising Barrister on behalf of the Appellant)
Cain & Abel Law Firm
52 Trafalgar Avenue
London  SE15 6NR	

SUMMARY
PRACTICE AND PROCEDURE
	Case Management
	Appellate jurisdiction

This is an appeal on a matter of case management and discretion when an Employment Tribunal refused to admit a document which was inconsistent with the Appellant’s case (an unappealed finding), 13 days into a trial when a representative appeared for a day to make the application.  No error of law by the Employment Tribunal, so fully conversant with the evidence and issues and of the fact of the Claimant’s earlier self-representation, in its case management of this application. Permission to appeal to the CA refused on the exacting grounds for interim appeals in the CPR: Ezsias applied.

HIS HONOUR JUDGE McMULLEN QC

1.	This case seeks to challenge the exercise of discretion and case management of one aspect of a complex race and religious discrimination problem.  I will refer to the parties as the Claimant and the Respondent. 

Introduction
2.	It is an appeal by the Claimant in those proceedings against the unanimous judgment of an Employment Tribunal sitting at Watford over 17 days chaired by Employment Judge Mahoney  registered with reasons extending to 37 pages on 30 January 2008.

3.	The Respondent was represented by Counsel. The Claimant represented himself, an important feature of which the Employment Tribunal was aware and of which I have been reminded by a number of references made today.  On two days, however, the Claimant was represented by Mr Egypt Egypt, a non-practising barrister who appears today.  Thus, almost at the end of the proceedings, the Claimant was represented and a document became relevant.

4.	The substance of the Claimant’s claim had been mapped out for the Tribunal in two CMDs when the Claimant was unrepresented, although initially the Claimant was represented by a solicitor engaged by his union.  However, I am told that for the purposes of disclosure, the Claimant and his solicitor had parted company and he was not represented thereafter save for the two days when Mr Egypt parachuted into the case.

5.	The outcome was to dismiss every one of 20 or so allegations made by the Claimant.  There is no appeal against those findings.  However, there is an appeal against the decision made on day 14, which relates to the inclusion of the document.  The Claimant contends that the majority decision of the Employment Judge and Mrs Shirley relating to the admission of the document was wrong in law and the minority decision of Mr Skelton was correct.  He therefore, appeals against the refusal to allow the document to be adduced.

6.	On the sift of this Notice of Appeal in accordance with Practice Direction paragraph 9, Elias P exercised his power under Rule 3(7) of the EAT rules.  He concluded in Chambers that the case disclosed no reasonable grounds for bringing the appeal and he said this.  

“The Tribunal was entitled to refuse to allow the claimant to rely upon the signed COT3, given that it did not emerge until the fourteenth day of the hearing and – this, in my judgment is important – there was no cross-examination on the additional information contained in the COT3 and no reference to it by the claimant himself until the fourteenth day.  The decision of the Tribunal was plainly one they were entitled to make.  Moreover, one might have thought that if it was an important element in the claim it would not have been overlooked as it was. 

It is wrong to say that the Tribunal should have obtained the original ACAS COT3 of its own motion.  A Tribunal is fully entitled to assume that the documents in the agreed bundle are just that: documents which it has been agreed, are accurate and relevant.  It would be an impossible burden among tribunals to have to check the authenticity and accuracy of all copy documents which are contained in their bundles.”

Where no point of law is found, Section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case.

7.	The Claimant was given the opportunity to have the case heard before a judge under Rule 3(10).  I am thus hearing this case on more material than was available to the President and form my own view of the prospect of success of the appeal.  The question for me is whether there is a reasonable prospect that the appeal will succeed in relation to this single point so that the Judgment be set aside.
The legislation
8.	No specific legislation has been placed before me. A tribunal may regulate its own procedure and may determine issues during the course of the hearing in accordance with the overriding objective and case management directions which it has previously given.  It has the power in its discretion to admit, or to refuse to admit, documents and to express views on their admissibility.

The facts
9.	The facts relevant to the narrow issue on appeal are contained in the following paragraphs of the judgment.  
“4.2 On 3 May 2005 the Claimant submitted another claim through solicitors in a different form alleging discrimination on the grounds of race and on the grounds of religion or belief.  This claim asserted various complaints in writing had been sent to the employers at least 28 days prior to the presentation of the claim. 

4.3 On 2 June 2005, Messrs Eversheds, acting for the Respondent, lodged a response denying the claims stating that voluntary further particulars would be provided in due course. 

4.4 This claim, together with claims by three other turban wearing Sikhs against the Respondent, were listed for Case Management Discussions on 13 December 2005 at which the Claimant was represented by Counsel and all four cases were consolidated.  Terms of settlement in respect of the other three cases were reached on the first and second days of this Hearing.” 

There is a textual difference in two of the paragraphs in the ACAS document known as COT3 recording the settlement.  Little attention has been given before me to the changes of wording in paragraph 1.6.  No importance lies in the additional words inserted into it, and no argument has been addressed to me upon it.  But as to paragraph 1.7, there is a difference.  

10.	The Tribunal is criticised on three grounds.  First, the Claimant represented himself.  I am reminded by Mr Egypt Egypt how important it is that Employment Tribunals recognise that frequently appearing before them are those who are not represented and who are not themselves lawyers.  It goes without saying and, indeed, that reflects our experience in the EAT. 

11.	Mr Egypt Egypt submitted that it is also important to note was said in Neale v County Council of Hereford and Worcestershire [1985] IRLR 281 EAT that it is not always necessary to rely on what the parties are saying and the tribunal can look at matters in the round.  That, however, has important qualifications.  The obvious one is that he overlooked both the reversal of that Judgment in firm terms by the Court of Appeal, restoring the Employment Tribunal’s finding of fair dismissal and the express restriction placed on the passage Mr Egypt Egypt relied on: Hereford v Neale 1986 IRLR 168 paras 43-45 per May LJ, paras 53-54 per Peter Gibson LJ.  The tribunal is obliged to make decisions on the issues which are extant between the parties at the end of the hearing.  Some of them may have fallen away during the course of the hearing from those originally prescribed at a CMD.  It is not there to make decisions on issues which are not advanced by the parties: Chapman v Simon [1994] IRLR 124 CA.  The contention in ground 1 is that failure to implement fully the terms of the COT3 signed in May 2004 and, in particular, clauses 1.6 and 1.7 was itemised in the CMDs conducted by Employment Judge Mahoney which set up the full hearing, 

12.	The question is whether or not the Tribunal erred in not admitting the new document.  It must be borne in mind that this was a case management decision and it was one for its discretion.  As the Tribunal made clear, the documents which had to be disclosed were those which were to be relied upon and which were in the possession of one or other of the parties.  The hearing had operated on the basis that the text of the unsigned ACAS document was the one which was in play and although the Tribunal could have allowed the document to be adduced, it gave two reasons for the majority judgment against doing so.  These were that there had been cross-examination on the unsigned document and that the case advanced by the Claimant was inconsistent with the case set out in the wording in paragraph 1.7. 

13.	In my judgment, even if Mr Egypt Egypt were right in his attack upon the correctness of the Tribunal’s judgment, he has made no submission in relation to this second finding, that is, that the document itself does not assist the case the Claimant made.  Since it is not attacked before me I must assume that paragraph 4.13.2 remains the position and that is a short answer to this case.  Whatever the rights and wrongs of the decision of the Tribunal, the claim made by the Claimant was inconsistent with the wording of the signed ACAS document.

14.	I acknowledge that the document is important because it has statutory force in allowing a Claimant to contract out of employment rights.  However, the document which was operated on and the subject of evidence was the unsigned document.  The case had been going for some 14 days before the point arose.  The Tribunal was entitled to consider whether or not it should flexibly allow the matter to be reopened. As I understand it, by this stage the Claimant and his five witnesses and four of the seven witnesses of the Respondent had given their evidence and there would have to be further evidence in the light of the new document.  That was a matter for the Tribunal to weigh when it was considering the application.  

15.	In my judgment, the Tribunal cannot be faulted when it decided in those circumstances not to allow the material to be adduced.

16.	The second ground is that the disclosure obligation was imposed on both parties, that is, that the document signed by both parties was one which should have been handed up by both parties.  The Claimant was unrepresented and the Respondent was represented by lawyers.  However, Mr Egypt Egypt accepted, when I reminded him of the finding in paragraph 4.11, that this ground could not succeed in the light of the fact that the Claimant had this document in his attic.  The finding by the Tribunal is that the Claimant had just found the document.  There is no finding that the document or a copy of it was held by the Respondent.  On the contrary, this original document was in possession of the Claimant and he was under an obligation himself to disclose it and he did not do so. Ground 2 cannot succeed in the absence of evidence that the document was held by the Respondent.

17.	The third ground is that the Tribunal was itself under a duty to demand the signed COT3.  This is misconceived.  The tribunal, as the President pointed out, is there to deal with the documents which the parties have placed in an agreed bundle, and it is entitled to assume that documents in the agreed bundle represent the relevant documents and where there are disputes about documents they will be proved by relevant witnesses.  It is itself under no duty to make further inquiries.  Indeed, it was not alerted to any kind of problem.

18.	It had a copy of a document which was said to be the COT3, albeit not signed.  It was not put on notice that there was an issue about signatures or about the contents of two of the paragraphs until Mr Egypt Egypt’s arrival on the stage, late into Act V. The Tribunal cannot be criticised for itself not provoking an investigation and it was under no special duty by reason of the nature of the document, or the self-representation of the Claimant, to allow, as a matter of law, the adduction of the document at this stage of the proceedings.

19.	I reject the contention that because the judge had ordered at the CMD disclosure of documents he and his colleague in the majority became entrenched and blind taking up a rigid position going to the core of the Claimant’s complaint.  That is an unfair criticism and the Tribunal has explained its judgment both by way of majority and minority and, as a matter of fact, it is incorrect.

20.	The direction of the CMD was for disclosure of the relevant documents, and since the Claimant, it appears, is the only one with the document he was himself under that duty to produce it even if it was stored in his attic.  So, the imagery of the Employment Tribunal of the Claimant producing a rabbit out of a hat is one which it was entitled to take into account when applying the overriding objective and exercising its case management functions in the trial.

Disposal
21.	For those reasons, the application fails.  Independently of the President, I have reached the same conclusion on the material now available to me and, effectively, the appeal is dismissed. 

22.	A submission has been made by Mr Egypt Egypt for permission to take one aspect of this appeal to the Court of Appeal.  The approach I take may be wrong but at least it is consistent.  Since this case has no reasonable prospect of success under Rule 3 it cannot improve in the Court of Appeal where, of course, the Respondent will send along its Counsel.  Mr Egypt Egypt has still in neither of his applications addressed the finding at paragraph 4.13.2 about the inconsistency in the Claimant’s case and while that finding remains unchallenged no appeal can succeed.
23.	My approach to this application is also affected by the parallel approach to case management decisions and interim Judgments adopted by the civil courts. I accept the reflection of Maurice Kay LJ in Eszias v North Glamorgan NHS Trust [2007] ICR 1126, [2007] IRLR 603 to the effect that where interim or case management orders are the subject of appeals, a more exacting test should apply. An appeal lies from the County Court to the High Court and not to the Court of Appeal, I would hold that the Claimant has not shown any reason of sufficient significance to justify why the cost of the appeal and the procedural consequences of an appeal outweigh the significance of this case management decision.