Donovan v London Borough of Barking & Dagenham [2012] EWCA Civ 1375

Case No A2/2012/0926[2012] EWCA Civ 1375
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Jeffrey Burke QC
No: UKEATPA/0694/11/JOJ
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/10/2012
Before
LORD JUSTICE RIMER
Between
OLIVIA DONOVANAppellantLONDON BOROUGH OF BARKING & DAGENHAMRespondent
The Applicant, Ms Donovan, appeared in person for in person for The Respondent was not representedHearing Hearing date: 16 October 2012
JudgmentLord Justice Rimer :
[1]This is a renewed application for permission to appeal. It is made by Olivia Donovan. She had worked for the respondent, the London Borough of Barking & Dagenham, since February 2004 and had a role in its Housing Developments and Partnerships department, in which by 2006 she became a team leader. In 2009 she brought employment tribunal proceedings against it, complaining of sex and race discrimination, harassment and detriment on the grounds that she had made a protected disclosure. Her claims were heard by a tribunal chaired by Employment Judge Jones, sitting with Mr B. Banks and Mrs J. McPake. Ms Donovan represented herself. The respondent was represented by counsel, Mr Cheves. The hearing started on 8 November 2010 and occupied five days. The judgment, with written reasons, was sent to the parties on 7 April 2011. As amended on 18 August 2011 under the slip rule and/or rules 34 to 36 of the Employment Tribunal Rules 2004, the judgment dismissed all Ms Donovan’s claims and the reasons explained why.[2]The proposed appeal to the Court of Appeal goes not to the reasoning or findings of the tribunal on the substantive issues raised by the claims but to the fairness of its process. Ms Donovan complains that she had an unfair hearing because of the apparent bias of EJ Jones. The starting point is paragraph 4 of the tribunal’s reasons:
‘4. At the start of the Hearing … [it] was also noted that the solicitor acting for the Respondent, Winston Brown, is an acquaintance of the EJ Jones. The Tribunal considered it to be appropriate to disclose this to the Claimant. EJ Jones duly disclosed the nature of the relationship to the parties at the start of the Hearing. That is that she had previously worked with Winston Brown as a colleague at a previous employment and that they were now friends and had recently socialised together. There was then an adjournment in order to give the Claimant an opportunity to consider whether she wished to proceed with this particular Tribunal or whether she wished to have her case re-listed before another Tribunal at a later date. All other Employment Judges at the East London Hearing Centre were otherwise occupied and so it would not have been possible for the hearing to continue on 8 November. 5. After a short adjournment, the Claimant informed the Tribunal that she wished to continue with the present Tribunal.’
And that is what happened.[3]Ms Donovan presented a notice of appeal to the Employment Appeal Tribunal (‘the EAT’). She challenged the tribunal’s findings of fact and asserted that they were perverse and biased. She said this on the last page of her grounds:
‘This bias is in my view due to the fact the Judge is a friend and former colleague of one of the Respondents employees who has played a key role in this case. In paragraph 4 of the Decision the Judge EJ Jones declares that she is a friend of the Respondents in-house solicitor. Her declaration was at the start of the hearing she also said they had had dinner the night before I thought at the time that knew the Respondents barrister because she used the word Counsel. i.e. I known the Respondents Counsel, that said I would have probably still gone ahead with the case because as can be seen from the letter of 25th Feb 2010 (a letter written by a member of staff supervised by the Judges friend Winston Brown) I was being put under pressure to leave my job and just prior to the Hearing the Respondent suspended me for matters related to the case (nearly 8 months later I still have not been allowed to return to the workplace) also the Judge said that I would have to wait until January 2011 (a delay of 3 months) for a new date. Obviously, had I known I would have to wait 5 months for the ET’s Decision a January Hearing may have produced an earlier Decision but I did not have the benefit of hindsight at that time. …’
[4]Ms Donovan’s notice of appeal came before the then President of the EAT, Underhill J, on the paper sift. On 6 July 2011, the Registrar conveyed his direction that, as a preliminary to a further consideration of her proposed appeal, the matter should be referred back to EJ Jones for two purposes. First, for the judge to consider whether, in light of the tribunal’s failure to deal formally in the judgment with certain of Ms Donovan’s claims, the tribunal wished ‘to clarify and/or amend its Judgment and/or Reasons under the slip rule and/or rules 34-36.’ Second, in light of the paragraph from the grounds of appeal just quoted, Underhill J invited comments as to whether, when the judge declared her relationship with Mr Brown, ‘she used the term “counsel” so that Appellant was led to believe that the relationship was in fact with the Respondent’s barrister.’[5]On 3 October 2011, Ms Ramjan, for the Regional Secretary of the Tribunals, wrote in response to the EAT on EJ Jones’s behalf. By then the judgment and reasons had been amended as I have mentioned. Paragraphs 1 to 8 of the letter relate to aspects of Ms Donovan’s grounds of appeal that are no longer in issue. Paragraph 9 dealt with the bias complaint. It made plain that EJ Jones had disclosed to Ms Donovan at the start of the hearing that she was a friend of Winston Brown and that Ms Donovan was therefore clear about who was being referred to. EJ Jones had said that she had seen him ‘recently’ but that there had been no dinner the night before the hearing, nor had there recently been a dinner with both present. EJ Jones could not recall the last time she had seen Mr Brown socially. Paragraph 9.2 described Mr Bown as ‘counsel’ and so I presume he is an in-house barrister. There is no doubt that EJ Jones was making clear that her disclosure had related not to counsel representing the respondent at the hearing (Mr Cheves) but to the in-house lawyer who had conduct of the case on behalf of the respondent (Mr Brown). The letter continued:
‘9.3 The disclosure was made at 10.35am. The Hearing was adjourned and the Claimant was given time to consider her options and told the position with regard to obtaining a fresh listing as things stood at London East at that time. She was advised to take the time to telephone any legal or other support that she had in place, in order that she could discuss what she wanted to do. At 10.55am the Claimant indicated to the clerk that she was ready to proceed. The Respondent requested more time before the Hearing resumed. At 11.00am the parties were recalled to the Tribunal and the Claimant did not request any more details or clarification but informed the Tribunal that she wished to proceed.’
[6]EJ Jones’s response was supported by the tribunal’s wing members. Mr Banks had sent Ms Ramjan a copy of his notes taken at the time of EJ Jones’s disclosure, which recorded that she had said that she knew ‘the solicitor for the [Respondent]’ (my emphasis), that the other judges in the building had already started their cases and so the case could not be switched to them, that if it was to be re-listed it would take priority ‘next year’, and the giving to Ms Donovan of time to consider her options, which were to continue with the case or to have it adjourned. Mrs McPake had taken a shorthand note of the disclosure, and her note (as transcribed), also sent to Ms Ramjan, recorded that EJ Jones declared that: ‘… the solicitor for the respondent is a personal friend of mine. You may need to consider whether you might wish to not proceed with this tribunal and go with another tribunal. Mr Brown and I have worked together and have met outside socially recently. I will give you a break to give you the opportunity to consider whether you wish to proceed with this case. You can call a friend and make your mind up. There is no other judge to offer you today. … ‘ (my emphases). Those comments made clear that, whether or not EJ Jones was accurate in describing Mr Brown as ‘a solicitor’, she was not referring to Mr Cheves.[7]The matter returned to Underhill J. On 20 October 2011, the Deputy Registrar conveyed Underhill J’s views. He had concluded that the amendments to the judgment and reasons met certain of the complaints in the notice of appeal. He did not consider that the complaints as to the tribunal’s delay in producing its judgment and reasons provided an arguable ground of appeal, any more than did the complaints as to the tribunal’s findings of fact. He then said:
‘As for the allegation of bias, it is clear from the Judge’s comments recorded in the letter of 3 October and the notes of the lay members (copied herewith) that there is no ground for alleging either actual or apparent bias.’
Ms Donovan was informed that Underhill J therefore considered that her appeal had no reasonable prospect of success, and that he had directed, in accordance with rule 3(7) of the applicable rules, that no further action should be taken on it.[8]Ms Donovan exercised her right, under rule 3(8), to file an amended notice of appeal with the EAT, which confined her challenge to the tribunal’s decision to one based on bias. The revised grounds were, I infer, drafted by someone with legal experience. It asserted that a fair-minded observer would have concluded that there was a real possibility of bias on the part of the tribunal by virtue of the friendship between EJ Jones and Mr Brown, and reference was made to Locabail (UK) Ltd v. Bayfield Properties Limited [2000] IRLR 96, at paragraph 25. Particulars of that assertion were given. They did not include an assertion to the effect either(i) that the disclosure that EJ Jones had made was of a personal friendship with Mr Cheves rather than with Mr Brown; or(ii) that, whatever EJ Jones had actuallydisclosed, Ms Donovan had understood her to have disclosed a friendship with Mr Cheves rather than Mr Brown.

(b) said:

‘The claimant is of the view that EJ Jones stated that she was a friend of the Respondent’s in-house solicitor and that EJ Jones had eaten dinner with Winston Brown the previous night. The claimant recalls EJ Jones referring to her knowledge of the Respondent’s counsel. (EJ Jones refers to Winston Brown as “counsel” in her letter dated 3rd October 2011);’
Whatever point was being made in the somewhat obscure second and third sentences, the first sentence appears to have made clear (‘The claimant is of the view …) that EJ Jones had disclosed a friendship with Mr Brown and that Ms Donovan had understood that. Paragraph 7(iii)(c) summarised Mrs McPake’s transcription of the disclosure, including its reference to the fact that the disclosure related to Mr Brown, and did so in terms reflecting an acceptance of it as correct.[9]The grounds of appeal then referred to the decision of the Court of Appeal in Jones v. DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071; [2004] IRLR 218, in which guidance was given as to how tribunals might deal with cases of apparent bias. It was said that Jones explained that a full explanation had to be given to the parties, including of their options(a) to consent to the judge hearing the case, in which case the consenting party would be likely thereafter to lose her right to object, or(b) to apply to ask the judge to recuse herself. It was said that EJ Jones did not give Ms Donovan sufficient guidance as she was not told that ‘consenting to having her case heard by the tribunal might result in the loss of her right to object nor was she told that it was her right to apply for the judge to be recused nor was she told that the tribunal will not take it amiss if she exercised her right to object.’ Accordingly, therefore, ‘the unrepresented claimant was not given a detailed explanation of, or informed of, all facts relevant to making a decision and the consequences of the options open to her.’[10]The revised grounds of appeal were put before Underhill J, whose view was that they raised no point with a real prospect of success. Even if it was arguable that the judge’s disclosed friendship with Mr Brown gave rise to an appearance of bias (as to which Underhill J was doubtful), Ms Donovan had elected to continue after proper disclosure was made. It had been made clear to her that she had a right to object to EJ Jones continuing with the case; and it was self-evident that, if she did not exercise that right, she could not object afterwards. Underhill J therefore directed in accordance with rule 3(7) that no further action was to be taken on the revised notice of appeal.[11]Ms Donovan exercised her right under rule 3(10) to challenge that conclusion at an oral hearing. That came before His Honour Judge Burke QC on 29 March 2012. Consistently with her revised grounds of appeal, Ms Donovan’s skeleton argument made no suggestion that she had understood (or misunderstood) EJ Jones’s disclosure to relate to a friendship with Mr Cheves rather than Mr Brown. The only ground on which she sought to make good her right to pursue an appeal to the EAT was that the guidance in the Jones case had not been followed by EJ Jones ‘in spirit or actuality’.[12]Judge Burke’s judgment reflects that Ms Donovan’s argument was confined to the points outlined in her skeleton argument. The only points made were that the disclosure to her had been inadequate because(i) she was not told that, if she consented to her case being heard by the tribunal as constituted that day, she might be taken to have waived her right to object to that constitution;(ii) she was not told that she had a right to ask EJ Jones to recuse herself; and(iii) she was not told that the tribunal would not take it amiss if she did exercise her right to object to EJ Jones continuing with the case.[13]It does not appear to have been part of Ms Donovan’s case before the EAT that any apparent bias that might be said to have affected EJ Jones by her friendship with Mr Brown was a vitiating circumstance that it was not open to the parties to waive. In any event, that they could waive any such objection is shown by the decision of this court in Locabail (UK) Ltd v. Bayfield Properties Ltd and Another [2000] QB 451, where the court (comprising the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor) said, at paragraph 15, that:
‘Although disqualification under the rule in the Dimes case, 3 H.L. Cas. 759 and Ex parte Pinochet (No. 2) is properly described as automatic, a party with an irresistible right to object to a judge hearing or continuing to hear a case may, as in other cases to which we refer below, waive his right to object. It is however clear that any waiver must be clear and unequivocal, and made with full knowledge of the facts relevant to the decision whether to waive or not.’
If there is a valid waiver, that is the end of the matter: the party who has waived his right to object to a particular tribunal hearing his case cannot, when he loses, raise the very objection to the constitution of the tribunal that he has waived.[14]Any waiver must, however, be given with full knowledge of the facts and Jones gave guidance as to how tribunals faced with the sort of problem with which EJ Jones was faced should deal with them ([2004] IRLR 218, paragraph 35). Judge Burke noted that Ms Donovan’s grounds were based on paragraph 35 in Jones, which he quoted. He pointed out, however, that the Court of Appeal was there doing no more than giving guidance and he drew attention to what the Court of Appeal said at the end of that paragraph:
‘We repeat that this guidance is no more than that: this is not a checklist, still less a definitive checklist for all cases. Sometimes some of these suggestions may be adopted, sometimes none of them may apply. We wish strongly to disabuse any disgruntled litigant of the idea that he may seize upon this judgment and use it as the mantra for complaint about ill-treatment. Any attempt to do so will receive short shrift.’
[15]Judge Burke noted that EJ Jones did not tell Ms Donovan that if she continued with her case, she could be taken to have waived her right to object. Nor did the Jones guidance suggest that it was necessary for her to have done so. But, said Judge Burke, it was obvious that when Ms Donovan was being presented with the choice of(i) going on with the case before the Jones tribunal or(ii) not going on with it before that tribunal, she was not being told ‘You are not being put to your election at all, because if you choose to continue, you can still make your objection later.’ He said, and I agree, that that would make nonsense of the choice that the litigant was being asked to make. In short, it was obvious to Ms Donovan that if she elected to go on with the Jones tribunal, she could not thereafter, if she lost the case, complain as to the tribunal’s decision on the ground of apparent bias.[16]Ms Donovan’s second point was that EJ Jones did not tell her that she had a right to ask EJ Jones to recuse herself. Judge Burke rejected that summarily as being ‘inconsistent with the plain facts’. I agree. What else could Ms Donovan think that EJ Jones was doing other than telling her that she had a right to object to the Jones tribunal continuing to hear the case?[17]Ms Donovan’s third point was that EJ Jones did not tell her that the tribunal would not take it amiss if she did object. As to that, Judge Burke said, in paragraph 13: ‘… The suggestion that that should be done, or can be done, is in paragraph 35(iv) of Jones; but there is no suggestion that, on the facts, that was actually said in Jones. The omission of that step does not, in my judgment, give rise to any arguable error of law on the part of the Tribunal or to any right to a litigant to seek to object months later in a Notice of Appeal when the objection was not raised earlier at any stage. The Claimant does not say that she thought that, if she objected, it would count against her; the point appears to be entirely theoretical’.[18]Judge Burke therefore dismissed Ms Donovan’s application and her appeal. Whilst expressing sympathy with the position of litigants in person in employment tribunal proceedings, he said that the imbalance of representation before the tribunal did not give rise to any legitimate complaint in terms of the European Convention on Human Rights, nor was there any other human rights issue in the case.[19]Ms Donovan’s grounds of appeal to this court complain first that she has been deprived of the right to a full appeal in the EAT and so deprived of ‘the right of reply or the opportunity to correct major errors in the Judges findings of fact on which they based their decision.’ That ground is, with respect, a mistaken one. There is no right of appeal to the EAT for the purpose of correcting errors in an employment tribunal’s findings of fact, because appeals to the EAT lie only on the basis of alleged errors of law by the employment tribunal (see section 21 of the Employment Tribunals Act 1996). Of course, if the complaint is that the employment tribunal has made findings of fact that are perverse (in the sense that no reasonable tribunal could have made them), that will be an error of law; and Ms Donovan’s original grounds of appeal to the EAT asserted perversity. However, those grounds cut no ice with Underhill J when he ruled on them on 20 October 2011: his assessment was that a perversity challenge was misplaced and that in any event ‘none of the points challenged is central to the Tribunal’s reasoning’. He accordingly ruled those grounds of appeal out under rule 3(7) and Ms Donovan did not exercise her right to argue orally for their re-instatement under rule 3(10). She instead exercised her right under rule 3(8) to put in a revised notice of appeal, which abandoned all the factual challenges in the original grounds and confined itself to the ‘apparent bias’ point. Even if Ms Donovan hadbeen allowed by Judge Burke to pursue a full appeal on that point, it would not have been open to her on such appeal to re-open the factual challenges raised in her original grounds. Those grounds have finally gone and cannot be resurrected.[20]The second ground is that Judge Burke was wrong to say that the case did not raise any human rights issues, since Ms Donovan believed that a right to a fair trial was a Convention right (article 6). A right to a fair trial is such a right, but Judge Burke found that she did have a fair trial.[21]The third ground is that Judge Burke gave no reasons for refusing Ms Donovan permission to appeal to the Court of Appeal. That is, again with respect, no ground at all. It is obvious why he refused permission, namely that he had concluded that Ms Donovan had no arguable case, and his judgment of 29 March 2012 gives full reasons for that. It was, of course, open to Ms Donovan to ask the Court of Appeal for permission, as she has. Elias LJ (also a former President of the EAT) refused permission on the papers on 16 July 2012, saying (inter alia) that the appeal had no realistic prospect of success, that the election to continue was made with full information, that there was no human rights issue and that the reasons of Judge Burke ‘were plainly adequate’. The oral hearing before me was Ms Donovan’s renewed bid to obtain permission.[22]Ms Donovan’s grounds of appeal to the Court of Appeal therefore raise only one theoretically legitimate point, namely that she did not have a fair hearing, and so was deprived of her article 6 rights. Her skeleton argument in support of that case seeks, however, to resurrect the same point as that made in the passage from her original grounds of appeal to the EAT that I have quoted in paragraph 3 above, namely that EJ Jones’s disclosure had related to a friendship with Mr Cheves, not to one with Mr Brown. I have explained how those grounds were ruled out by Underhill J and replaced by the revised grounds summarised in paragraphs 8 and 9 above. Those revised grounds do not assert that EJ Jones disclosed a relationship of friendship with Mr Cheves rather than with Mr Brown, nor do they suggest that Ms Donovan understood that that was what EJ Jones had disclosed.[23]By her skeleton argument, Ms Donovan said that:
‘I did not know that the judge knew a Council employee … when I agreed to go ahead with the hearing. I was told that she knew the Respondents Counsel … who I assumed meant their barrister, a person not directly employed by the Council. I only realised it was Mr Brown who I knew from my dealings with him as Council employee, when I received the Employment Tribunal Decision in April 2011. So I was not in a position to object until then.’
This was the line that Ms Donovan urged upon me at the oral hearing. She submitted that Elias LJ was wrong to refuse her permission on the papers on the ground that her election to carry on with the Jones tribunal was made ‘with full information’. In this connection, Elias LJ added in his reasons that there was no doubt on the evidence that EJ Jones’s disclosure related to Mr Brown, not to Mr Cheves. Before me, Ms Donovan urged that there was no way that she would have assented to a trial by a panel that included a friend of Mr Brown, of whose conduct towards her she was critical.[24]During the argument, I explained to Ms Donovan that there can be no question that the further information from the tribunal members shows that EJ Jones’s disclosure related to Mr Brown, and not to Mr Cheves, and that even if Ms Donovan disagreed with that, there is no question of her being able to make that good by, for example, seeking to cross-examine the panel members: that is something that the EAT will not permit. It appeared to me, therefore, that the highest Ms Donovan might be able to put her case would be that, whilst EJ Jones’s disclosure did relate to Mr Brown, Ms Donovan had misunderstood it as relating to Mr Cheves. If that was an arguable stance for her to adopt on the facts, a question might then arise as to whether, in such circumstances, she did in fact have sufficient information in order to make a properly informed decision as to whether to continue with the Jones tribunal.[25]I have, however, come to the conclusion that it is simply not open to Ms Donovan to run before the Court of Appeal the line that she believed the disclosure related to Mr Cheves. Whilst that is what she said in her original grounds of appeal to the EAT, those grounds have been ruled out and she has replaced them with revised grounds acknowledging that the disclosure did relate to Mr Brown and advancing no case that she had understood anything different. That was her position before Judge Burke, that is the basis upon which she argued the case before him and that is the basis upon which he decided it. That being so, it is not open to Ms Donovan to seek now to jettison the case she made before Judge Burke and seek to resurrect the case that she made in her original grounds of appeal to the EAT, but which have been ruled out. The reason is obvious. Her proposed appeal is against Judge Burke’s ruling that, on the factual basis advanced by her revised grounds of appeal, she has no ground for complaining that she had other than a fair trial. To establish a ground for appealing to the Court of Appeal against Judge Burke’s ruling, she must show that she has a properly arguable case that he fell into error. He plainly did not fall into error by failing to have regard to factual assertions that she did not advance before him and which derive from grounds of appeal that the EAT had earlier barred her from arguing. Ms Donovan cannot now seek to resurrect those grounds in the Court of Appeal.[26]In those circumstances, I consider that there is no arguable ground for the contention that Judge Burke’s manifestly sound reasoning was in error. Nor is there any point under the Convention. Ms Donovan was entitled to a fair hearing but I do not understand how - in circumstances in which, after disclosure as to EJ Jones’s connection with Mr Brown, she gave her considered agreement to continue with the Jones tribunal – it can be said that she did not have a hearing that was fair and Convention compliant. Locabail and Jones proceeded on the basis that such a waiver is valid and effective, and in Jones the court had express regard to article 6 (see paragraphs 20 and 38). Ms Donovan has no realistic prospect of showing on appeal that the hearing before the Jones tribunal did not meet her article 6 rights.[27]In agreement with Elias LJ, I would refuse Ms Donovan permission to appeal.