VALERIE SHODEKE v MR D HILL [2002] EWCA Civ 599

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
[2002] EWCA Civ 599Case No A1/2001/0902Venue Royal Courts of Justice, Strand, London WC2, Monday, 15th April 2002
Between
VALERIE SHODEKEAppellantMR D HILLMR A DOUGLASMR H TINWORTHLONDON BOROUGH OF HAVERINGRespondents
Before
Lord Justice SchiemannLord Justice Robert WalkerMR W PANTON (instructed by Stewart & Co, London N15 5NS) appeared on behalf of the AppellantThe Respondents did not attend and were unrepresentedDate 15 April 2002
[1]Monday, 15th April 2002 LORD JUSTICE SCHIEMANN: My Lord will give the first judgment.

LORD JUSTICE ROBERT WALKER:

[2]This is an appeal by Miss Valerie Shodeke from an order of the Employment Appeal Tribunal made on 28th March 2001. The order was made after a preliminary hearing held in the ordinary way without notice to the respondents. They are the London Borough of Havering, and two individual officers of that local authority, Mr Douglas and Mr Tinworth (a third officer Mr Hill, having dropped out of the proceedings at an earlier stage).[3]At the preliminary hearing the Employment Appeal Tribunal adjourned the main grounds of appeal, based on allegations of unfairness at the hearing before the Employment Tribunal, and directed that further evidence should be put in on the matters raised in those grounds. However, the Employment Appeal Tribunal also ruled that two further grounds of appeal raised in the appellant's notice to the Employment Appeal Tribunal were not fit to go forward to a further hearing. The further hearing is to be by another tribunal, which will also hear the matter as a preliminary hearing without the respondents being present.[4]The two grounds of appeal which have been disallowed are in paragraphs 6.8 and 6.10 of the appellant's lengthy notice of appeal to the Employment Appeal Tribunal. Paragraph 6.8 relates to section 71 of the Race Relations Act 1971, which imposes on every local authority a general duty:
"...to make appropriate arrangements with a view to securing that their functions are carried out with due regard to the need - (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups."
[5]Paragraph 6.10 refers to what the Employment Tribunal called "the seventh issue" - that is, was redundancy the real reason for the appellant's dismissal?[6]The appellant's notice to this court contends that the Employment Appeal Tribunal erred in law in ruling that the local authority's alleged breach of section 71 and the issue as to the real reason for the appellant's dismissal should not go to a full hearing. In each case it is said that the Employment Appeal Tribunal wrongly sought to separate out the allegation of unfairness and bias from these other issues.[7]The background to the matter is that the appellant was employed by Havering as a principal officer in its Social Services Department, Children's Services Division. Until 1st April 1997 there were eight principal officers, three in the Children's Services Division. On that date there was a restructuring under which six service managers replaced the previous ten principal officers. The appellant and five other principal officers underwent a process of selection for the posts as service managers. Three were successful; three, including the appellant, were unsuccessful. In fact the appellant went through the procedure later than the others because she had previously been under suspension and had, on 22nd January 1997 (before the restructuring) made an application to an Employment Tribunal which was withdrawn on 27th February 1997. The deferment of the selection process in the case of the appellant was by mutual agreement.[8]So the appellant did not obtain appointment as a service manager and, after some other events which I need not refer to, she was given notice of dismissal, which took effect on 30th January 1998. She had in the meantime declined some offers of alternative employment which she contends were not suitable. She made other applications to the Employment Tribunal on 11th July 1997, 17th November 1997 and 23rd March 1998. In the proceedings as a whole she alleged racial discrimination, victimisation and, in the last application only, sexual discrimination and unfair dismissal.[9]There is a detailed chronology in paragraph 38 of the Employment Tribunal's lengthy extended reasons. These reasons were promulgated on 24th January 2000 after a lengthy hearing spread over 26 days between 11th October and 3rd December 1999. The appellant appeared in person and many of her complaints of unfairness and bias are linked to the fact that she was a litigant in person conducting a heavy application, having had legal representation until about a fortnight before the hearing. She complains that she was refused adjournments until a stage when she was obviously ill. She complains of indulgence shown to leading counsel appearing against her, and she complains of interruptions both to her evidence and to her oral submissions.[10]The Employment Appeal Tribunal said of her allegation of unfairness:
"We are unable to say that they should go forward to a full hearing. However, we are not able to say they should not."
[11]Hence the adjournment for further evidence.[12]This court is not today concerned with the allegations of unfairness, except so far as they bear on what I might call the case management element of the Employment Appeal Tribunal's decision. It was that case management element which seems to have carried most weight with Mummery LJ when he gave permission to appeal. He wrote:
"The proposed appeal has a real prospect of success. The EAT allowed the complaint of bias to proceed to a further hearing in the preliminary hearing procedure. It is surprising in these circumstances that they did not postpone the entire preliminary hearing on all points. They may well have acted prematurely in not allowing the other issues to await the outcome of the preliminary hearing on bias."
[13]The attitude of the local authority itself to this appeal appears from a letter dated 10th July 2001 from Havering's solicitors. They wrote:
"Our clients were not a party to the decision of the Tribunal below as the hearing was ex parte and whilst our clients will dispute the facts as presented by the Appellant we do not intend to contest this appeal as it relates to procedural issues. Our client does not therefore, intend to lodge skeleton arguments, or attend the appeal provided that there will be no attempt by the Appellant to seek costs against our client. If the Court of Appeal decides that this matter should revert to the EAT so that all grounds appeal can be considered, we will apply to the EAT that this matter be heard inter-partes so that the EAT may be fully advised, and have all relevant documentation before it, on the question of bias."
[14]Mr William Panton, who has appeared in this court but did not appear below for the appellant, has submitted that the Employment Appeal Tribunal has erred in law in dismissing those parts of the appeal relating to redundancy, unfair dismissal and the issue on section 71 of the Race Relations Act before determining the issues of bias and unfairness which go to the root of the Employment Tribunal's decision. In expanding that submission made in his written skeleton argument Mr Panton has submitted that the issue of unfairness and bias goes to the root of the whole matter and that it is not a sensible or proper way to proceed by dissecting out parts of the case since all, he says, are affected by the same allegation of unfairness.[15]Had the local authority been represented here today and had it been minded to oppose the appeal, it might, I think, have put forward two main submissions. First, on the points of substance, it might have argued that neither of the two points which I have mentioned has on its own any reasonable prospect of success. Second, so far as procedure and case management is concerned, it might have argued that the Employment Appeal Tribunal did not act prematurely since it is always sensible to clarify the issues on any appeal by eliminating hopeless points; and that if the appellant does prove to have a good case on unfairness then a rehearing of the whole matter would probably be the inevitable outcome, however unpalatable a further lengthy hearing might be, and that, on a rehearing, all the issues would be open to the appellant.[16]I would see some force in that. If the Employment Appeal Tribunal were persuaded that there must be a fresh hearing on the ground of unfairness, it is almost inconceivable that the order would not direct the hearing to be on all the issues raised in all the different applications made by the appellant. However, it is impossible to be sure that that would be the outcome. I see force in Mr Panton's submission that in a sense the arguments based on unfairness and bias could be said to taint the whole matter; and therefore in line with what seems to have been the instinct of Mummery LJ, a Lord Justice with exceptional experience of employment matters, I would allow this appeal and it may be that the appropriate order in the circumstances would be for the last two paragraphs on page 67 of the bundle to be struck out.

LORD JUSTICE SCHIEMANN: I agree, both of my Lord's conclusion and his reasoning. (Appeal allowed; no order as to costs).

Cited in 5 later judgments