Appeal No. UKEAT/0243/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 January 2010
Judgment handed down on 18 February 2010

Before
HIS HONOUR JUDGE PETER CLARK
MR D EVANS CBE
MR T MOTTURE

MR A AGBODO	APPELLANT

HERTFORDSHIRE COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JEFFREY JUPP
(of Counsel)
Instructed by:
The Bar Pro Bono Unit
289-293 High Holborn
London
WC1V 7HZ	
For the Respondent	MR MATTHEW BRADLEY
(of Counsel)
Instructed by:
Hertfordshire County Council
County Hall
Pegs Lane
Hertford
SG13 8DE	

SUMMARY
PRACTICE AND PROCEDURE
Bias, Misconduct And Procedural Irregularity
Costs

Employment Appeal Tribunal practice – allegations of apparent bias/procedural irregularity – EAT findings of fact as to what occurred before the Employment Tribunal.  Based on those findings the Porter v Magill test of the fair-minded observer was not met in this case.

Award of £10,000 costs upheld on the basis of the Employment Tribunal’s reasoning.

Lodwick v Southwark L.B. considered.

HIS HONOUR JUDGE PETER CLARK 

1.	Certain cases which come before this appeal tribunal can only be properly determined by a full hearing with both parties present and evidence being heard (see Lodwick v LB of Southwark [2004] IRLR 554).  This is one of them.

2.	The parties are Mr Agbodo, Claimant and Hertfordshire County Council, Respondent.  The case has been proceeding before the Watford Employment Tribunal.  This is an appeal by the Claimant against the Judgment of an Employment Tribunal chaired by Employment Judge Mahoney, promulgated with reasons on 13 February 2008 following a 6 day hearing in January dismissing his complaint of direct race discrimination brought against the Respondent by whom the Claimant was employed at all relevant times as a Grade 3 social worker.  He describes himself as a black man of sub-Saharan African descent.  Further, the Employment Tribunal awarded costs against the Claimant in the sum of £10,000.

Employment Tribunal Procedural History
3.	The relevant claim was contained in the Claimant’s form ET1 dated 21 September 2006, allocated the number 319014/06 (the principal claim) in which he complained of direct discrimination, harassment and victimisation contrary to the Race Relations Act 1976.  For completeness we record that he later brought a separate claim, case no. 3302145/07 (the second claim) to which we shall return.  We note that Employment Judge Postle identified the issues arising in the principal claim at a Case Management Discussion held on 25 May 2007.

4.	At a Pre Hearing Review held before Employment Judge Southam on 7 December 2007, which the Claimant did not attend, that Judge:

(1)	Struck out the second claim.

(2)	Ordered the Claimant to pay a deposit in respect of the complaints of victimisation and harassment in the principal claim.  The Claimant did not pursue those claims at the substantive hearing before Employment Judge Mahoney’s Employment Tribunal in circumstances to which we shall return.

(3)	Directed that the remaining claim of direct discrimination in the principal claim proceed to a hearing in January 2008.  That was the hearing before Employment Judge Mahoney’s Employment Tribunal leading to the present appeal.

5.	It is right to observe, from Employment Judge Southam’s PHR Judgment and Reasons promulgated on 9 January 2008 that he considered that it would not be fair, due to lack of proper notice, to consider striking out the direct discrimination complaint in the principal claim.  Accordingly, Mr Bradley for the Respondent did not pursue that application.  The substantive hearing of the remaining direct discrimination claim took place on 15-18 and 21-22 January 2008.  

Employment Appeal Tribunal Procedural History
6.	The Claimant lodged his Notice of Appeal against the Mahoney Employment Tribunal (ET) Judgment on 25 March 2008.  His accompanying ‘home made’ grounds of appeal ran to 22 pages and contained a number of allegations of what, in shorthand, may be termed bias and procedural irregularity on the part of the Employment Tribunal and in particular Employment Judge Mahoney.

7.	The appeal came before me on the paper sift and I directed, by Order dated 30 July 2008, that the Employment Judge and members be asked to comment on an affidavit sworn by the Claimant in the appeal on 23 May, following an earlier order of this EAT, and permitted the Respondent to lodge an affidavit in reply if so advised.  As a result comments were received from the ET lay members, Ms Hamill and Mr Worthington and from Employment Judge Mahoney and the Respondent’s solicitor who has had conduct of this case, Ms Donner (now Mrs Khan) filed an affidavit in reply sworn on 1 September 2008.

8.	The papers were then placed before HHJ Birtles who formed the opinion that the appeal had no reasonable prospect of success, and applied a direction under EAT R3(7); that no further action be taken on the appeal.  His short reasons for reaching that conclusion were contained in a letter to the parties dated 19 November 2008.

9.	Dissatisfied with that opinion the Claimant exercised his right to an oral hearing before a Judge under R3(10).  That hearing first came before me on 4 February 2009.  On that occasion the Claimant, who had hitherto represented himself throughout, had the advantage of representation by Mr Matthew Purchase of Counsel under the ELAAS pro bono scheme.  During that hearing two points emerged which, in my opinion, required further investigation.

10.	The first concerned the scheme of the Mahoney ET’s reasons.  In summary, paragraph 2 set out what were said to be the agreed issues; at paragraph 4 are set out the ET’s findings of fact; the legal principles are summarised at paragraphs 6-8 and the ET’s costs reasoning, leading to the award of £10,000 costs in favour of the Respondent at paragraph 9.

11.	What appeared to be missing from that structure, critically, was the ET’s reasoning, applying the law to the facts as found, which led them to conclude that the Claimant’s claim of direct racial discrimination failed (the Meek point).  Secondly, through counsel, the Claimant took issue with the proposition that he had agreed the live issues recorded at paragraph 2 (the issues point).  Consequently, I adjourned the hearing and formulated two questions to be answered by the ET, on the Meek and issues points, under the ‘Burns/Barke’ procedure.

12.	Employment Judge Mahoney provided answers to those questions by letter dated 27 February 2009.  Meanwhile, following the hearing, I granted the Claimant permission to amend his grounds of appeal by substituting 5 grounds settled by counsel.

13.	At the resumed R3(10) hearing before me held on 3 June 2009 Mr Purchase again appeared on behalf of the Claimant.  In the light of Employment Judge Mahoney’s answer to the first Burns/Barke question on the Meek point he withdrew the first ground of appeal relating to that issue, but pursued the remaining grounds.  That being an appellant only hearing and the remaining grounds requiring, in my opinion, not simply full argument from the Respondent but also oral evidence from the deponents, the Claimant and Ms Donner, I directed that those 4 grounds proceed to this full hearing.  

Employment Tribunal Decision
14.	When read with the Employment Judge’s answers to the two Burns/Barke questions the ET’s substantive conclusions may be shortly stated.  On 11 March 2005 the Claimant raised an internal complaint of bullying and harassment against his line manager, Alan Clare, following a meeting held on 17 February 2005.  On 21 February he had been informed that he was to be subject to the Respondent’s Performance & Capability Procedure (PCP).  The Claimant also complained about that step being taken.  The Respondent appointed Greg Hewitson to investigate the Claimant’s complaint of harassment.  On 5 July, separately, a fellow employee Lee Hanley raised a complaint against the Claimant.  No formal action was eventually taken on Lee Hanley’s complaint.

15.	The ET identified as the issue in the remaining direct discrimination claim by the Claimant the question as to whether the panel of three councillors chaired by Councillor Emsall which heard the Claimant’s Stage 4 complaint had treated him less favourably than they would treat an appropriate comparator on grounds of his race in certain respects set out at paragraph 2.1 of the Reasons.

16.	It is apparent from Employment Judge Mahoney’s reply to the Meek point raised by me under the Burns/Barke procedure that in dealing with the 12 points of complaint raised before them by the Claimant the panel would have treated an hypothetical white comparator of similar age and experience as the Claimant, carrying out the same job, in precisely the same way.

17.	As to the costs application made by the Respondent after the Claimant’s claim was dismissed, the ET found that the claim was wholly unmeritorious; it had no possible chance of success.  The Claimant ought to have left the matter alone after receiving an oral apology from Alan Clare for what took place on 17 February 2005, as the panel found (point 1 of their findings recorded at paragraph 4.58 of the Reasons) and further the ET found that the Claimant had behaved inappropriately in the way in which he conducted correspondence with Ms Donner during the course of the proceedings.  The application was limited to the maximum assessed sum permitted under the ET Rules.  That was considerably less than the full amount of costs said by the Respondent to have been incurred.

The Appeal
18.	The first day of hearing before us was taken up with the evidence of the Claimant and Ms Donner; principally the lengthy cross-examination of Mr Agbodo by Mr Bradley.  The matter was then adjourned for a further day’s hearing on 21 January 2010, for the purpose of which Mr Jupp and Mr Bradley have helpfully provided amended skeleton arguments.

19.	The first amended ground of appeal (the Meek point) having been withdrawn we are left to consider the four remaining grounds.  The first three of those may be taken together under the general heading of procedural irregularity; the last ground relates to the ET’s costs order.

Procedural Irregularity
20.	The first complaint by the Claimant is that the Mahoney ET failed to deal with the whole of his case.  That in turn depends upon our finding as to whether, as the ET record at paragraph 2 of their reasons, the Claimant agreed the issues there set out.  In essence, was his claim of direct discrimination limited to the actions of the Stage 4 Appeals Committee or did it extend back to his complaint against Mr Hewitson and other matters which he raised in the attachment to his form ET1 in the principal claim?  In order to resolve that question we must first determine, as a matter of fact, whether the Claimant did agree to the list of issues, prepared by Mr Bradley who appeared below and adopted by the ET, based on the oral evidence and other material before us.  The Claimant insists that he did not agree Mr Bradley’s list of issues on the second day of hearing before the ET.

21.	On balance we are satisfied that the Claimant did agree Mr Bradley’s list of issues, which he accepts was given to him, as recorded by the ET.  In arriving at that finding we take into account the following:

(i)	Although not agreed on the first day of hearing, Ms Donner records in her contemporaneous note, which we accept is an accurate summary of the relevant exchange, early on the second day (EAT bundle p354) the Employment Judge saying, having asked the question ‘do you agree the list of issues and received the Claimant’s reply’, ‘he agrees’.  That assessment was not then challenged by the Claimant.

(ii)	That agreement was recorded at paragraph 3 of Mr Bradley’s closing written submissions below (p376).  No challenge was made to that assertion, nor the ET’s statement of issues in paragraph 2 of the Reasons, in the Claimant’s own grounds of appeal lodged with his original Notice.  The point was first raised in the amended grounds of appeal settled by Mr Purchase.

22.	At the end of the first day of hearing before us Mr Jupp sought permission to further amend the amended grounds of appeal to contend that if in fact the Claimant agreed to the list of issues, his agreement was procured in such a way as to render the proceedings unfair: he was not given a full explanation as to the effect that such agreed issues would have on the ambit of his claim.  We refused permission so late in the day.

23.	We agree with Mr Bradley that it is not now open to Mr Jupp to raise, as he does in his revised skeleton argument a further and different contention that even if the Claimant did agree the list of issues, was that sufficient to enable the ET to treat him as abandoning the remainder of the case?  That, it seems to us, is another variation on the new case now sought to be advanced if the Claimant fails on the factual question as to whether he agreed the Respondent’s list of issues.

24.	The second complaint raised by the Claimant is that, having read a number of witness statements lodged by the Respondent, all but two of those witnesses (Councillors Emsall and Singham, who sat on the Stage 4 appeal panel) were not in the event called to give evidence, but the ET nevertheless purported to make findings of fact based on those witness statements.  The following examples are advanced:

(i)	The ET found (Reasons paragraph 4.4) that Val Motyer found it difficult to manage the Claimant.  Ms Motyer’s witness statement was before the ET, but she was not called to given evidence.  However, the ET had before them, within the documentary evidence, a note of interview with Ms Motyer by Mr Hewitson in which she is recorded as saying ‘Abraham (Claimant) was not an easy member of staff to manage’.

(ii)	The ET’s findings as to the Claimant’s workload (paragraphs 4.5-4.7).  It is suggested that the ET’s reference to the Claimant having only 7 current patients in his caseload came from Alan Clare’s witness statement and he was not called to given evidence.  However, as Mr Bradley points out, by reference to a document which the Claimant put before this EAT and which was before the ET (H1) Lisa Chivers recorded Alan Clare saying at a meeting held on 16 March 2005 that the Claimant had only 7 patients.

(iii)	The finding at paragraph 9.6.2 that Alan Clare gave the Claimant an oral apology for his behaviour at the meeting between them on 17 February 2005.  The evidence as to that oral apology came from Councillor Emsall, according to the note taken by Ms Donner (360-360a).  Both lay members recall that the Claimant accepted that he received an oral apology from Mr Clare (206;210).

25.	In short, we are not persuaded that the ET made findings of fact unsupported by evidence (excluding the witness statements of witnesses not called by the respondent).  

26.	The next complaint is that the Claimant was not given a fair hearing due to a costs warning given to him by the Employment Judge at the start of the second day of hearing on 16 January 2008.

27.	The background to this complaint are the orders made by Employment Judge Southam at the PHR held on 7 December 2007.  We have earlier noted that a deposit was ordered in respect of the claims of victimisation and harassment (but not direct discrimination).  The written order to pay a deposit (of £500) was not promulgated until 9 January 2008.  The deposit was payable by 30 January.  Thus, on 16 January, the Claimant was not in breach of the deposit order.

28.	It was the Claimant’s evidence to us that at the start of the ET hearing on 16 January 2008 the Employment Judge asked him if he knew that costs would be awarded against him if he lost the case and that he might have to sell his home to pay the costs.  He said that he found that comment extremely demoralising and thought that those comments prejudiced his case.  He nevertheless went on to pursue his claim of direct discrimination, whilst not pursuing the victimisation and harassment claims.

29.	We find that the Claimant is mistaken in his recollection as to the day on which this exchange took place.  We accept Ms Donner’s contemporaneous note, supported by a separate note taken by her trainee, that it was in fact on 15 January.  We also accept Mr Bradley’s submission that, put in context, the costs warning related specifically to the claims of victimisation and harassment, which the Claimant then chose to abandon (as to which no complaint is made in this appeal).

30.	It is further contended that the Employment Judge exhibited apparent bias, albeit unconsciously, in the way in which he dealt with a complaint by Councillor Emsall, whilst he was giving his evidence, that the Claimant was staring at him.  Ms Donner records that Mr Emsall said to the Employment Judge; please can you ask the Claimant to stop staring at me so intently?  Whereupon the Judge dictated a note which he made in these terms:

‘Note 1.15pm witness complained that the Claimant was staring at him and chair noted staring quite intently at the witness in a manner commonly described as eyeballing’

‘The Claimant was then informed by the Employment Judge of the Tribunal’s powers to strike out and award costs for such conduct.’

31.	We have been taken to the Claimant’s account of this incident (29, affidavit paragraph 3.0) and those of the ET members Ms Hamill (204) and Mr Worthington (208).  There has been considerable debate as to who saw what before the Employment Judge gave his warning to the Claimant.

32.	Our finding is that on the balance of probabilities all three members of the ET were watching the witness giving his evidence when Mr Emsall made his complaint, but upon the complaint being made the Judge looked across to the Claimant and saw what he describes as ‘eye-balling’.  He then issued his warning which, in our judgement, was appropriate in the context of maintaining fairness to all participants in the hearing, including the witness.

33.	Having considered the various complaints raised by the Claimant in this appeal the question for us, based on our findings of fact, is whether a fair-minded observer would conclude that the ET, and in particular the Employment Judge, was biased.  We answer that question in the negative.

34.	We have taken account of the observations of Sedley LJ in Gee v Shell UK Ltd [2003] IRLR 82, but we are not persuaded that the reference to the Claimant having to pay costs, if necessary by selling his home extended beyond the (ineffective) deposit order.  It did not relate to the direct discrimination claim which, unlike Mrs Gee, he then pursued.  Nor do we consider that the strike out and costs warning in relation to Mr Emsall’s complaint was such as to exhibit apparent bias.  Further, we have rejected, on the facts as we find them to be, the complaint that the ET made findings of fact based on the statements of witness who were not called.

The Costs Order
35.	We return to the second point of principle in Lodwick; that an award of costs remains exceptional in the ET (per Pill LJ paragraph 23).  We have therefore looked with particular care at this ET’s reasons for ordering costs against the Claimant (paragraph 9).

36.	We note (paragraph 9.5) that in awarding costs the ET did not hold against the Claimant his failure to produce a witness statement, nor his ‘intimidatory staring’ at Mr Emsall.  They did, however conclude that the claim of direct discrimination had ‘no possible chance of success’; it was misconceived (ET R40(3)).

37.	Given our finding that the Claimant did agree to limit his claim to the decision of the Stage 4 appeals committee, two of whose members gave live evidence before the ET, we are satisfied that the ET were entitled to reach this conclusion.  They also heard from the Claimant and were entitled to form the view (paragraph 9.7) that he did not have a sincere belief in the truth of the allegations which he made against that panel.

38.	Mr Jupp submits, relying on the judgment of Bristow J in Davidson v Calder [1985] IRLR 97, that the ET was wrong to rely upon its finding that the Claimant should have left the matter after receiving an oral apology from Mr Clare in respect of his behaviour at the 17 February 2005 meeting (paragraph 9.6.2).  That related to conduct by the Claimant before proceedings commenced.  However we see that factor as going to the ET’s overall conclusion that the Claimant did not have a sincere belief in the truth of his complaint of direct racial discrimination against the Stage 4 committee.  His real complaint against the Respondent was that he did not receive a written apology from Mr Clare.  It had nothing to do with his race.

39.	The ET made a separate finding of unreasonable conduct of the proceedings in respect of an email which he sent to Ms Donner’s senior (paragraph 9.9).  We agree with Mr Jupp that, of itself, that factor would not justify an award of costs.  However, it cannot be taken in isolation.  The principal finding, triggering the discretion to award costs, was the ET’s permissible finding that the direct discrimination claim had no reasonable prospect of success.

40.	In deciding to make an order for costs the ET took into account (a) the Claimant’s means (paragraph 9.4) and (b) the cost to the Respondent of successfully defending the proceedings.  On the first day of hearing (15 January) the Respondent gave a rough estimate of their costs to date as £20,000.  The Claimant has put before us an itemized bill of the Respondent’s costs to the 17 January 2008 (J1-2) totalling £33,255 (inclusive of VAT).  The ET was entitled to comment (paragraph 9.13) that the Claimant might count himself as fortunate that the Respondent limited its costs claim to £10,000.

Disposal
41.	It follows that we can see no grounds in law to interfere with this ET’s decision.  Accordingly, this appeal fails and is dismissed.