HIS HONOUR JUDGE McMULLEN QC
1.
This case is about Employment Tribunal procedure under the broad heading
of apparent bias and substantive issues of unlawful race discrimination,
victimisation and unjustifiable discipline by an independent trade union of its
members. This is the Judgment of the court to which all members, appointed by
statute for their diverse specialist experience of law and unions, have
contributed. We will refer to the parties as the Claimant and the Respondents.
Introduction
2.
It is an appeal by the Claimant in those proceedings against the
Judgment of an Employment Tribunal sitting over some 40 days at London Central,
under the chairmanship of Employment Judge James Tayler, sitting
with Ms Macintosh and Mr Carter. The Respondents were represented,
some by Mr Mohinderpal Sethi and some by Ms A Mayhew of counsel.
The Claimant was represented by Mr Mark Sutton of counsel. Today she
is represented by Mr Joe Sykes, a consultant, and Mr Sethi
appears now for all six of the Respondents. They are five officers of FDA, a
trade union, and a further unincorporated association.
3.
The Respondents contended that they did not discriminate against, or
victimise, the Claimant, nor cause any unjustifiable discipline to be taken
against her. The Employment Tribunal found against the Claimant on all of her
extensive catalogue of complaints. She appeals, raising both substantive and
procedural issues. First, she contends that the Tribunal gave the appearance
of bias and, secondly, that the Tribunal was in any event wrong in law.
4.
The focus of this case is not only the Judgment which extends for some
90 pages, sent to the parties on 17 September 2010, but also the
decision made by Judge Tayler to refuse an application for review,
contained in a letter of 11 November 2010. There are other
communications which are relevant to the apparent bias appeal.
5.
A direction sending these two appeals to a preliminary hearing, at which
both parties are represented, was given by HHJ Peter Clark. I also made
case management decisions just before the hearing, none of which is now
relevant or pursued further.
The legislation
6.
As to the substantive claims, the legislation is set out without
controversy by the Employment Tribunal in paragraphs 414-445 in some seven
pages of its Judgment.
7.
Direct race discrimination is outlawed by s.1 of the Race Relations Act 1976.
The Act applies to trade unions by s.11 and requires the same fair treatment by
a trade union as by employers.
8.
The Tribunal addressed itself in relation to the burden of proof under
s.54A and the relevant authorities. S.2 of the Race Relations Act gives
protection against discrimination by way of victimisation, which requires there
to be a protected act and action taken on the ground of having done a protected
act. That is applied to a trade union by s.11(3), requiring less favourable
treatment on the ground that a protected act has been done, as a result of
which the Claimant has suffered a detriment. The Tribunal in its own words
said this:
“430. However, the section does not apply where any allegation
made by the Claimant was both false and in bad faith.”
9.
Secondary liability, as the Tribunal coined it, is provided by s.32 and
applies to agents. Section 33 makes unlawful the aiding of unlawful acts. A
claim should be presented within three months (see s.68) but there is a just
and equitable extension (see s.68(7)). The Tribunal directed itself about that
extension and what is known as a continuing act (see paragraphs 440 and 441 of
the Judgment).
10.
It is common ground that the elements relating to information, and
allegations being false and made not in good faith, apply both to victimisation
and to unjustifiable discipline, as Mr Sykes helpfully puts them both
together in his skeleton argument. Taking the relevant passage from ss.64-65
of the Trade Union Labour Relations Consolidation Act 1992:
“(6) An individual is not unjustifiably
disciplined if it is shown-
(a) that the reason for disciplining
him, or one of them, is that he made such an assertion as is mentioned in
subsection (2)(c), or encouraged or assisted another person to make or attempt
to vindicate such an assertion,
(b) that the assertion was false, and
(c) that he made the assertion, or
encouraged and assisted another person to make or attempt to vindicate it, in
the belief that it was false or otherwise in bad faith,
and that there was no other reason for disciplining him or that
the only other reasons were reasons in respect of which he does not fall to be
treated as unjustifiably disciplined.”
11.
It is apparent that the Tribunal had in its mind that linkage between
the two statutory provisions (see the passage we have cited from 430 and the
above citation from the 1992 Act). The time limit in respect of such acts,
however, is not as generous. The employment rights jurisdictions and s.66 of
the Trade Union Labour Relations Consolidation Act provide a period
of three months, unless it was not reasonably practicable to so present. So
the Tribunal had in mind the two different time limits for the different forms
of offence alleged here.
Our approach to the appeals
12.
The central and novel feature of this case is the appointment of three
of the five individual Respondents as lay members of the Employment Tribunals.
Ms O’Toole’s involvement goes back a long time and it was for that reason
that the case was moved from London South, where she sits, to London Central.
During the time when the Respondents were the subject of these proceedings
brought by the Claimant, Ms Crighton was appointed to London Central and
Mr Whiteman to London South.
13.
We have been referred in detail to the law on apparent bias emerging
from such authorities as Locabail (UK) Ltd v Bayfield Properties Ltd
[2000] QB 451 at 480, paragraph 26, and the standard authority on apparent bias
(Porter v Magill [2002] 2 AC 357). In particular, the
Judgment of the House of Lords in Lawal v Northern Spirit Ltd
[2003] UKHL 35 is particularly relevant since it deals with the unique
tripartite constitution of the EAT and the relationship between that bench and
advocates who sit on it as recorders, and who appear before it. It provides
much material for decision-making in respect of the junior branch of our
jurisdiction, the Employment Tribunals.
14.
We consider that the unique circumstances of this case should warrant a full
hearing. It is not simply the constitutional position of the three
Respondents. There is also a relationship with two witnesses, one on each
side, who are lay members; and the circumstances in which an allegation of
apparent bias arises in its particular detail, for example in respect of the
meeting of a Respondent and the member at a training course. These matters will
require a full discussion.
15.
In the skeleton argument advanced by Mr Sykes, there is mention of
actual bias, but no oral argument was addressed to us on that basis.
Mr Sethi noted in his submissions that no argument on actual bias was
advanced and Mr Sykes in reply said nothing. So this case will go forward
on the basis of the procedural challenges based upon the contention that there
was an appearance of bias in the Tribunal. The substantive Judgment of the
Tribunal and Judge Tayler’s refusal of review will be relevant, because in
the latter he developed certain matters which were not fully developed in the
substantive Judgment and, in fairness to the Claimant, both of these matters
will go forward.
16.
Insofar as there is an application for new evidence, the material which
is before us will be exigible before the full hearing, but no other matters:
the appeal will be tried on this material alone. There have been a number of
applications for further questions to be weighed against the Employment
Tribunal but they are not now live.
17.
At the outset of the proceedings, we canvassed with both advocates the
possible outcomes and it was agreed by both of them that if there were a full hearing
and the procedural point succeeded, the likely conclusion is that the whole
Judgment would be set aside, there would be an order for a re-hearing, and it
would probably be in a different region. On that basis we considered whether
it was necessary for us to hear arguments on the substantive point.
Mr Sykes most helpfully confined his arguments to the written material he
had produced, and indicated they would take only a few minutes.
18.
Mr Sethi responded by reference to his very detailed submissions in
writing, dealing with the substantive points, he being content to rely
principally on the liability Judgment and the Judge’s Reasons on refusal to review
to uphold the Judgment against the challenge of apparent bias.
19.
In those circumstances, it is expeditious for us to deal with the
substantive points, acknowledging, as we do, that if Ms Bhardwaj does
succeed on an allegation of apparent bias, it is most likely that the whole
Judgment would be set aside. We also consider it expeditious because very
considerable Judge and lay member time has been invested in this preliminary hearing.
As we have said the Judgment is 90 pages, the bundle before us is already 438
pages and the authorities extend to some 212 pages. The skeleton arguments and
written submissions of the parties extend to about 40 pages. So, it is in
accordance with the overriding objective that we dispose of the substantive
points. We hope we will be forgiven in dealing with them in the same concise
and expeditious way in which both Mr Sykes and Mr Sethi have
addressed us.
20.
To that end, our description of the facts will be the shorter, and we
bear in mind that we are telling the story to the people who have been involved
in this for many years, as well as for review by the Court of Appeal if so
minded.
The facts
21.
The Tribunal introduced the parties to us in the following way:
“13. The FDA is an independent trade union representing senior
staff in the Civil Service and National Health Service. It has approximately
13,000 members in the Civil Service.
14. The FDA is organised into sections, one of which is the CPS
Section. The CPS Section is divided into branches; one of which is the CPS
London Branch. The branches elect delegates to the CPS Section Council, which
is governed by a CPS Section Committee. The members of the CPS Section Committee
are elected by the delegates to the CPS Section Council.
15. In 1994 Ms Crighton became a Member and lay
representative of the FDA. In 1995 she was elected as Deputy Convenor of the
CPS London Branch.
16. In 2001 the Denman report into race equality within the CPS
was published. Ms Denman concluded that there was evidence of
institutional racism within the CPS. This finding was accepted by the then
Director of Public Prosecution, Sir David Calvert Smith.
17. In 2001 Ms O’Toole was elected as a lay FDA
representative.
18. On 9 February 2002 (1/9) the CPS London Branch
held its AGM. It was recorded in the minutes of the meeting, under the heading
Whitley Council Representatives:
‘It was resolved that the Area Whitley Council
representatives shall be the Convenor, the Secretary, the Deputy Convenor of
the London Branch. In the event that any of the named officers are unable to
attend any meeting, the Convenor and Secretary shall nominate a replacement.’
19. On 12 January 2005 the Claimant commenced employment
with the CPS as a Crown Prosecutor based at Edmonton Police Station. On
24 February 2005 the Claimant joined the FDA. In April 2005 the
Claimant contacted the FDA for advice in relation to her concern that her
starting salary was lower than that of equivalent Crown Prosecutors and that
this might constitute race or sex discrimination. The Claimant met with
Paul Nielson, the paid officer of the FDA with responsibility for the CPS
at the time, and discussed her concerns. On 11 October 2005 Mr Nielson
wrote to the Claimant stating that the FDA would not support her proposed
complaint against the CPS (1/15):
‘I can see why you feel unfairly treated by the CPS but as
I explained at out meeting, although they could have handled matters better,
there is, in my opinion, n formal challenge we can mount.’
20. Later in the letter he stated:
‘As I explained, the record of the CPS in appointing women
and ethnic minority staff to C2 over the last year is such that we could not
mount a realistic challenge that your interview score was affected by issues of
discrimination.’”
22.
There was a good deal of bad blood between a number of the actors in
this drama, and in due course the Claimant issued claims alleging race
discrimination, victimisation and unjustifiable discipline against her union,
and the individual officers concerned.
False and in bad faith
23.
The Tribunal examined the 20 or so acts of alleged detriment and the 15
or so protected acts, and dismissed all of them for one reason or another. The
central tenet of the Tribunal’s reasoning can be summarised by its finding at
the end of a long analysis under the heading of “Applying Law to the Facts” in
the following way, giving us some feel for the background:
“501. These were the real reasons for the Claimant’s treatment.
502. The Claimant relies on the letter from Cater,
Leydon, Millard as the eleventh Protected Act. In that letter it was alleged,
on the Claimant’s behalf, that the actions of the Section Committee in
suspending the Claimant amounted to victimisation and unjustifiable
disciplining. The letter made no reference to the fact that the Claimant had
suggested that the London Respondents should be suspended. We return in our
further analysis to the question of whether the Claimant’s allegation was made
false and made in bad faith.
503. The Claimant raises a number of matters in
respect of the CPS Section Committee meeting of 13 November 2008.
She complains as Detriment 18 that a decision was taken to suspend the
operation of the committee in the light of a fundamental breakdown of trust and
confidence between the committee and herself. The decision to suspend the
committee was taken as a result of the e-mail that the Claimant sent to all
members asking them to note that potential individual liability and the
complaints made in the letter from Cater, Millard, Leydon of
6 November 2008 suggesting that the removal of the Claimant from her
role as London Equalities Officer was unlawful. We return in our
later analysis to the question of whether these allegations were false and made
in bad faith.”
24.
Those passages fall within a long sequence of similarly phrased
conclusions, all of which can be summarised in the following way:
“512. In our above analysis there are numerous complaints raised
by the Claimant that we have not accepted as a matter of fact or have not held
that the Claimant was subject to a detriment. Save in relation to the matters
that we go on to consider in further detail we have fully accepted the
Respondents’ explanations for the Claimant’s treatment and consider that the
evidence does not support any contention that the Claimant was treated less
favourably on racial grounds, was subject to victimisation or to unjustified
discipline in those respects. We go on to analyse the remaining matters in
further detail. We also note at this stage that we have accepted that a number
of the complaints raised by the Claimant did amount to protected acts.”
25.
Thus, those matters against which there is no appeal were decided
against the Claimant. What remained were what the Tribunal held to be matters
going to the core of the dispute and the Tribunal said this:
“513. The remaining matters go to the core of this dispute. On
5 June 2008 the Claimant sent an e-mail to Ms Crighton, copied
to National Officers, in which she alleged that the London Respondents were
guilty of unconscious race discrimination. We do not accept that these
allegations were true. There is a question over whether they were made in good
faith. The most specific allegations in the e-mail were made against
Mr Sampson. There was no real explanation of why his actions were
suggested constitute race discrimination. There was a lack of clarity as to
the specific allegations against Ms Crighton. There were no real
allegations against Ms O’Toole. However, in the light of our following
analysis, we did not consider it necessary to come to a finalised view on that
issue. What is clear is that the London Respondents reacted directly to the
suggestion that they were guilty of unconscious race discrimination by
instigating complaints against the Claimant and thereafter refused to meet with
her. They were outraged by the allegations that had been made by the Claimant
and considered them to be false and to have been made in bad faith. That was
why they were not prepared to meet with the Claimant.”
26.
This is the source of Mr Sykes’ principal criticism of the Tribunal
in that it did not make a finding and, if it did make a finding, it had no
business making a finding about central issues of the defence of the
Respondents relating to the Claimant’s lack of truth and lack of good faith.
27.
As a matter of construction that cannot be right, because immediately
following the passage we have cited above, there appears this:
“517. We accept that the decision to suspend the Section
Committee arose from the complaint that the Claimant had made in relation to
her suspension from Branch Office. She alleged that this was victimisation
and/or unjustifiable discipline in her email to the members and the letter from
her solicitors to the FDA. However, we consider that these allegations were
false and made in bad faith. The Claimant had on two occasions specifically
suggested that Branch Officers should be suspended. When the Section Committee
acted in accordance with her suggestion she responded by suggesting that they
had acted unlawfully and might face legal action. In so doing she made false
allegations and was not acting in good faith. Furthermore, the real reason for
the suspension of the Section Committee was the breakdown in trust and
confidence that arose from the Claimant’s change of position.”
28.
This passage is the natural follow-on to what it described as the
remaining issues. There is a plain finding against the Claimant on the two
principal matters which constitute the Respondents’ defence. Mr Sykes
takes an old-fashioned pleading point. Falsity and bad faith were not in the
pleadings. Mr Sethi accepts that. However, he submits that when matters
arise during the course of a Tribunal hearing, which do demonstrate matters
which might constitute grounds for asserting falsity or bad faith, these should
be dealt with. To that end, Mr Sethi has the advantage over
Mr Sykes, he having been there and having produced a matrix from
Employment Judge Tayler, handed to the parties, headed this: “Areas
upon which the Parties may wish to Assist in Submission”.
29.
This occurred long before submissions were made by counsel in the case. There
are clearly questions as to bad faith and the Tribunal has made findings about
that. Paragraph 430 indicates the Tribunal’s clear appreciation that to
constitute a defence, the material must be false and made in bad faith, and
there are findings of fact about this. This is an unusually fact-sensitive
exercise by a Tribunal looking at both of those matters.
30.
It cannot be said that there was no evidence for it do this. The matter
was live before it, albeit not in a pleading. The parties were represented and
knew it was coming, and were given the opportunity to make submissions on it,
presumably because the matter had been ventilated in evidence. Therefore we
reject the contention that the Tribunal erred in making a decision upon falsity
and bad faith, and in the decision it made in any event. There was material
upon which it could form that Judgment. It is a question of fact for it.
Agency
31.
The next issue is whether the officers were agents of FDA. No criticism
is made of the self-direction which we have summarised above. The application
of that direction is contained in paragraph 514, where the Tribunal said this:
“514. The first question that arises is that of whether in
making those complaints the London Respondents were acting as agents for the
FDA. We do not consider that they were. The allegations they made were personal.
They refused to meet with the Claimant in their personal capacities. They were
acting on their own behalves, not that of the Union. In such circumstances the
union cannot be liable, nor can the individuals. It was not an act of
disciplining by the Union.”
32.
With respect to Mr Sykes, that is again a straightforward finding
of fact. Why were they doing what they were doing? Who were they doing it
for? And the answer the Tribunal gives is one open to it.
Time
33.
The third substantive matter raised on appeal relates to the out of time
point. The Tribunal, it is accepted, addressed itself correctly in the
passages we have cited from its chapter on the law as to time, under the
different provisions of the statutes. The Tribunal’s application of it occurs
in paragraph 515 to the following effect:
“515. In any event, the discrimination complaint is out of
time. We would not consider that it would be just and equitable to extend
time. Although we do not accept that there is any valid reason to review our
conclusion that it did not formally form part of the Claimant’s evidence in
chief, we were prepared to accept the statement produced by the Claimant for
the PHR as evidence. In it she contends that it was not until she read the
letter from Mr Baume on 15 September 2010 that she realised that
the London Respondents had refused the attempts at reaching a mediate
solution. She accepts that she could then have submitted her complaint. She
did not do so until 8 December 2008, nearly three months later; over
six months after her email of 5 June 2010. The Claimant contends
that she did not do so in an attempt to allow the internal processes to take
place and that it was not until she was informed that she was not separately
appointed as a London Branch Representative that the final straw was applied.
We do not accept it as a “final straw”, being no more than a statement of the
formal position. We do not accept that the Claimant has established sufficient
reason for her delay that would make it just and equitable to extend time. The
Claimant was well aware of her complaint and of the possibility of bringing
Employment Tribunal complaints of victimisation. To have this matter hanging
over them has been a substantial detriment to the London Respondents. These
events took place long ago. We would not have considered it just and equitable
to extend time. It clearly would have been reasonably practicable to submit
the unjustifiable discipline claim within time.
516. If we had accepted that, despite the protagonist’s
holidays and the limited scope for interaction during the period before the
takeover of the Branch, that there was significant exclusion of the Claimant
after her email of 5 June 2010 that amounted to a detriment we would
have considered that this constituted an omission commencing from
5 June 2010 and that any race discrimination complaint in that regard
was out of time. It would not have been just and equitable to consider it for
the reasons set out above, particularly as the Claimant repeatedly suggested
immediately thereafter that she believed that she was being excluded. It would
have been reasonably practical to submit the unjustifiable discipline claim
within time.”
34.
In those circumstances, these claims were truly out of time and there
can be no criticism of the Tribunal’s failure to extend time, either under the
not reasonably practicable jurisdiction or the just and equitable
jurisdiction. In our judgment those were plainly matters of fact for it. In
respect of those three matters of law, said to arise in this Judgment, we
accept in full the written submissions of Mr Sethi.
35.
There is no basis for alleging perversity in this case, and its
bedfellow, lack of reasons, so frequently put together by advocates before us
and so frequently running into the sand. It is very difficult to see how a
complaint could get through of lack of reasons when they consist of 90 pages.
There is no deficiency here. As to perversity, the Tribunal had material upon
which it could decide the disputes between them, and it has to be said that
there is a very substantial number of the disputes resolved against the
Claimant where, by implication on the lack of an appeal, it did not go wrong.
36.
We hold it did not go wrong on the issues which are live before us, and
these matters will not go forward. But, of course, it will be open to
Mr Sykes if he succeeds at the full hearing to make submissions that this
Judgment as a whole be set aside.
Further argument
37.
In answer to my question of both advocates, whether there was anything
missing from the Judgment necessary for it, Mr Sykes has begun to re-open
the case and, on being reminded how narrow is the window available to advocates
on this particular part of the case, he confined his submissions to the
following: he contended that we had not addressed what he describes as the Barneck
point, the settled law. Indeed it is settled law, as the Court of Appeal
upheld my Judgment in Street v Derbyshire Unemployed Workers' Centre
[2004] EWCA Civ 964, and there is, in the Barneck case, reference
to my own Judgment in Lucas v Chichester Diocesan
Housing Association Ltd [2005] UKEAT 0713/04/0702.
38.
As we pointed out, paragraph 430 is a self-direction by the Tribunal in
the clearest, self-emphasised terms. As to time, that matter is dealt with in
the Judgment. We accept Mr Sethi’s submissions on it.
39.
Inadequate reasons? Mr Sykes began to address us on this matter but, as
we thought we had made clear, this is so often a makeweight in appeals. This
is a comprehensive, meticulous Judgment of the Judge on behalf of the three of
them, and we agree with HHJ Clark’s depiction of it as such.
40.
It is said that the material available to the full hearing should be
wider than at present. Case management directions have been given in this
case. There will be no further directions to the Regional Employment Judge, to
the President of the Employment Tribunals or to Judge Tayler. The matters
presently extant will be before the full hearing.
Appeal
41.
An application has been made for permission to appeal by Mr Sykes.
It covers the same material as was taken on appeal. We can dismiss the
application in summary terms by reference to our Judgment above. There was a
correct self-direction in relation to bad faith. The Tribunal was entitled to
make findings of fact as to the running of time. The reasons are adequate and
it is not wrong to refuse to escalate further the questions to be sought to be
answered by the Regional Employment Judge.
42.
We do not think that we would be assisting the Claimant by giving her
permission to appeal. Indeed, as part of Mr Sykes’ submissions, one might
have thought he had lost whereas in fact he is going forward on his apparent bias
allegations. As the Court of Appeal customarily does, we give warnings to
those who are going to the Court of Appeal about costs, where of course
Mr Sykes would not have a right of audience, although of course the
Claimant could represent herself. Mummery LJ frequently makes clear,
there are grave issues to be considered in the grant of permission and, like
Sedley LJ, we consider we would be setting the Claimant on a highway to
nowhere.
Further steps
43.
In the standard order which goes out, there is an indication to the
parties that if they want a piece of evidence, that they cannot agree on themselves,
then the matter can come back to me. At the moment Mr Sethi has
introduced one matter. As to that, there will be permission because the Judge
does not have a note, and so Mr Sethi’s note can be produced and it can be
the subject of an agreement by those acting on behalf of the Claimant, about
the missing note.
44.
As to the applications of the Respondents to become lay members of the
Tribunal, at the moment Mr Sykes has indicated that there are some queries
about that. He expressly raised issues about the timings and so we will direct
that there be a short chronology of the making of the applications by the
relevant actors, and their notifications of appointments and so on, and that
can be sent to him for consideration. We anticipate that he will not have much
to say about it because it is in their hands.
Case management
45.
Mr Sykes, throughout, has been concerned about time, but we pointed
out that these two appeals were set down with an hour and a half time estimate
for both. By the time an hour and a half had been completed, Mr Sykes was
on his feet still, and so case management measures had to be taken because of
the state of our list. Justice has been done in this case. We have worked
during our lunch hour in order to do it, but still we have now dedicated three
and a half hours to this one and a half hour case. It is important. It is
voluminous.
46.
Mr Sykes may be assured, and so may Ms Bhardwaj, that the
interests of justice have not been skimped in her case, and all material which
is necessary for the decision-making today, as to which she has been partly
successful, has been adduced.
47.
The second thing is that Mr Sykes should try conciliation, and we
will put in our order that should be done. This requires an open mind. It
will be some disappointment to the objective, impartial, reasonably informed
observer invoked by Mr Sykes to see many lawyers in court fighting each other,
when they could be looking after the interests of their clients. This is a
case which has reasonable prospects of success. That is why it is going to a full
hearing. Ms Bhardwaj has won and lost today, but this is a case which we
consider is meet for a conciliated solution.
48.
We have discussed what remedies are available, which include
declarations and injury to feelings in the sum of roughly £25,000. There are
prospects of success on both sides, but if the Claimant wins, this case goes
back to another hearing, most likely. And so whether the union contributions
of the FDA are best spent on this matter are matters for the consideration of
those involved.
49.
We will direct that ACAS officers make overtures to the parties with a
view to trying to reach a solution to this case, and there will be a report
within 28 days from the Claimant as to what steps, but not the substance, have
been taken.
