Hassan v Leicestershire Partnership NHS Trust & Ors [2005] EWCA Civ 1781

Case No A2/2005/0808Case No A2/2005/0805Case No A2/2005/1298[2005] EWCA Civ 1781
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE WILKIE QC
HIS HONOUR JUDGE SEROTA QC)
Venue Royal Courts of JusticeDate Friday, 4 November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
Between
HASSANAppellant-v-
Between
LEICESTERSHIRE PARTNERSHIP NHS TRUST and OthersRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in person for The Respondent was not represented and did not attend
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]The applicant seeks permission to appeal against decisions of the Employment Appeal Tribunal made by His Honour Judge Wilkie QC in March 2005 and His Honour Judge Serota QC in May 2005.[2]In summary, the facts and background are as follows. The applicant is an Austrian national of Egyptian origin and is a practising Muslim. He applied for and was successful in obtaining employment with the respondent as a Trust doctor in July 2003. He had not received his registration with the General Medical Council, and, pending this, he joined the respondent on a work shadowing post with a Dr Aktar. Once the registration was obtained the applicant was employed by the respondent as a Trust doctor from 13 October 2003 until 1 January 2004. This was a non-training post. The applicant's wife also worked for the respondent as a consultant prior to the applicant's appointment. The applicant had also applied for a training post as a specialist registrar but this application was rejected.[3]The applicant began to suffer from both professional and personal problems while at work. It is his case that he suffered less favourable treatment, detriment and unfair dismissal under the Race Relations Act 1976 based primarily on the conduct of his former supervisor, Dr Aktar, which he contends caused him to resign. The conduct alleged includes interference with the applicant's right to education and training, freedom of religion and thought, a right to private life and so forth.[4]The applicant made his first claim to the Employment Tribunal on 14 March 2004 and a second claim on 8 June 2004. The claims were consolidated by the tribunal in its order of 20 December 2004. On that date it made various case management directions, including defining what the issues in dispute were and making a disclosure direction. The tribunal also refused the applicant's application to add five individual respondents to his claim, to amend his claim to raise new issues. But the tribunal did allow an amendment in relation to acts said to amount to continuing harassment having taken place in letters of 27 July and 26 August 2004 referring the applicant to the General Medical Council, which would put his ability to work in the United Kingdom as a medical practitioner at risk. The tribunal also refused the applicant's application for certain questions to be answered by the respondent.[5]There was also an application by the applicant to strike out the second and third respondents' claim for a pre-hearing review deposit order. That eventually resulted in an order for him to deposit £100 because his complaints against the second and third respondents were regarded as having little prospect of success. It was that matter that was the subject matter of the second appeal. The second hearing also dealt with various other case management matters that had not been disposed of in December.[6]The Employment Appeal Tribunal heard the first and second appeals of the applicant together. The applicant appealed all three of the orders of the EAT, and the basic contention was bias and a lack of impartiality on the part of the chairman who had refused the applicant's application that he should recuse himself on 17 August 2004. There were also allegations of inability to have a fair trial under Article 6. The applicant now extends his complaint of bias to the decisions of the Employment Appeal Tribunal. The Employment Appeal Tribunal decided the first and second appeals on 18 March 2005. There had been agreement as to the issues in dispute, and the tribunal considered that the statement of issues fairly reflected the essential matters which the tribunal would have to decide in considering the claims.[7]The Employment Appeal Tribunal also dealt with the complaint that the chairman had failed to record reasons for not recusing himself, noting that that was a matter that had already been canvassed and decided, and the fact that no reasons were recorded did not mean the order that had been made was in any way erroneous in point of law. The tribunal entirely rejected the contention that the chairman of the tribunal was biased or lacking in impartiality. It pointed out also that they were entirely satisfied that an informed observer would not think that there was a possibility even of unconscious bias.[8]The Employment Appeal Tribunal found that the Employment Tribunal was perfectly entitled to refuse the applicant's application to add new respondents and it was entitled to do so as part of its case management powers. The Employment Appeal Tribunal dealt with a number of other case management directions to which it is not necessary to refer. They are all set out in the judgment of the tribunal. The Employment Appeal Tribunal went on to say:
"It follows from what we have said that there are no arguable grounds for this appeal and it is therefore dismissed at this stage without the need to go to a full hearing."
[9]As to the second appeal, the Employment Appeal Tribunal again rejected the complaints of bias and lack of impartiality on the same grounds as in the first appeal. It noted that inadequate notice had been given by the respondents in respect of one matter but that there was a discretion in the chairman to allow a shorter period of notice, and went on to conclude that the payment of £100 required from the applicant was no more than nominal. It also made reference to what it described as disgraceful allegations which the applicant had been quite happy to make on the basis of bare assertion, and costs were ordered against him.[10]As to the third appeal, which was dealt with by Judge Serota QC on 26 May, again he was essentially dealing with matters of case management. Judge Serota said:
"I am therefore driven to the conclusion not only that this appeal lacks merit, but it is an appeal which is misconceived and should never have been pursued ..... "
[11]The applicant seeks to attack all three orders: the first two made by Judge Wilkie QC, as he then was, and the third one made by Judge Serota QC. He raises some 20 or so different grounds of appeal, none of which as far as I can see has the slightest scintilla of merit. All these appeals relate not to Dr Hassan's substantive case, which is yet to be heard, but to directions given preparatory to the hearing. It would only be where there was a plain error of law or some important point of law or practice that the court would contemplate interfering with a management decision that had already been considered on appeal from the Employment Tribunal to the Employment Appeal Tribunal.[12]Dr Hassan unfortunately displays a complete inability to see the wood for the trees. Whether this is deliberate on his part, I know not. What I do know is that if every litigant conducted his case like Dr Hassan the whole system would very soon grind to a halt.[13]The applicant also claims bias on behalf not only of the Employment Tribunal chairman but also the members of the Employment Appeal Tribunal. He outlines this in detail in his skeleton argument and he has made further reference to it in his oral submissions today. Suffice it to say that such allegations are, in my judgment, completely without any basis whatsoever. It is no doubt tempting for Dr Hassan, when he obtains a ruling that is adverse to what he wishes, for him to claim that the tribunal that made it is biased.[14]In my judgment there is no arguable merit in any of the numerous grounds advanced by Dr Hassan, and in these circumstances his applications for permission to appeal are all refused.

Order

Applications refused. The appellant to be supplied copy of transcript of judgment at public expense.