Wilson, R (on the application of) v Secretary of State for Transport [2015] EWHC 1248 (Admin)

Case No CO/19/2015[2015] EWHC 1248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 25 March 2015
Strand
London WC2A 2LL
B e f o r e:
ALEXANDRA MARKS
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF WILSONClaimantv
Between
SECRETARY OF STATE FOR TRANSPORTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Wilson appeared as a litigant in person for in personMr A Kinnier (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This is a renewed application for permission to apply for judicial review lodged on 5 January 2015. Permission was refused on the papers on 18 February 2015 by Michael Kent QC acting as Deputy High Court Judge. I have been referred to that decision and the reasons for it. The claimant, Mr Wilson, filed a renewal notice on 25 February 2015 and it is pursuant to that renewal notice that we are here in court today.[2]Mr Wilson is seeking permission to challenge the decision of 1 October 2014 of the Maritime and Coastguard Agency (which I will hereafter refer to as “the MCA”). The MCA’s decision found no bias at any stage of the investigation of Mr Wilson’s complaint, nor any breach of the Maritime Labour Convention 2006.[3]The background to this claim is that Mr Wilson was recruited in January 2014 as a two stripe officer, Corporate Fleet Personnel Trainer, with Princess Cruise Lines Limited (“Princess Cruises”. His employment contract was due to end on 6 May 2014. During his time with Princess Cruises, Mr Wilson states that he experienced a string of problems and that he raised grievances about those with his employer. He was directed by Princess Cruises to disembark earlier than contracted, on 10 April 2014. Thereafter, Mr Wilson was told to attend a meeting with the company’s Human Resources manager on 15 April 2014, which he did.[4]Mr Wilson received notification of termination of his employment on 8 May 2014 by way of a letter dated 6 May 2014 from Mrs Jan Caiels, Assistant Fleet Personnel Manager at Princess Cruises. The letter stated that the decision to terminate Mr Wilson’s employment was “based on your questioning of the company’s Core Values and the lack of adherence to them as a company.”[5]This was followed by a much longer letter dated 22 May 2014 to Mr Wilson from Michele Rabe, Director of Employee Relations at Princess Cruises which stated, “The decision to terminate your employment was in recognition that you seemed dissatisfied with the terms and conditions of your employment. This was in no way a retaliatory action.”[6]Mr Wilson says that he sought to resolve matters with the company but was unsuccessful. He therefore emailed the MCA on 25 June 2014 alleging breach of the requirements of the Maritime Labour Convention because, by termination of his employment contract for making complaints, he had been victimised.[7]By an email from Mr Neil Atkinson dated 31 July 2014, the MCA set out its decision, rejecting Mr Wilson's allegation of breach of the Maritime Labour Convention. That email states, at the sixth paragraph:
"From my perspective, the crux of the matter with respect to compliance with Regulation 5.1.5 of the Maritime Labour Convention 2006 are the two letters mentioned above. It would appear from my discussions with the company that the contents of Mrs Caiels’ letter was (sic) incorrect, and an unfortunate result of misinterpretation of advice given by operational management."
Mr Atkinson’s email continues that “taking everything into account”, the MCA has concluded that “there has not been any breaches of the requirements of the Maritime Labour Convention”.[8]Mr Wilson challenged that decision by email dated 20 August 2014, making a formal complaint to the MCA. He alleged that the MCA had failed to enforce the Maritime Law Convention Regulations and had demonstrated bias towards Princess Cruises. By return email of the same date, the MCA assured Mr Wilson that, following his complaint, there would be an independent assessment of the evidence by one of the MCA’s Consultant Surveyors.[9]Mr David Carlisle, one of the MCA’s Consultant Surveyors, carried out an assessment. Mr Carlisle’s opinion was set out in an email dated 4 September 2014 to Mr Philip Naylor, Director of Maritime Safety and Standards at the MCA.[10]Mr Naylor then wrote a letter dated 1 October 2014 to Mr Wilson, setting out the MCA’s decision which is now the subject of this challenge. Mr Naylor’s letter states that, one of the Senior Consultant surveyors with no prior involvement in the case having conducted an investigation, the MCA found no evidence to substantiate the allegation of MCA bias; did not find any breach of the Maritime Labour Convention by Princess Cruises; and, contrary to the assertion by Mr Wilson, that Princess Cruises had issued him with an amended notice of termination dated 22 May 2014. The MCA letter states that:[11]“Taking the foregoing into account, we consider that your employment was terminated for a reason other than the fact that you made a complaint against the company.”[12]The MCA’s decision letter concludes “we are not able to offer any comment on your allegation of victimisation. You may wish to consider seeking legal advice as to whether your termination amounts to victimisation.”[13]Mr Wilson was not satisfied with the MCA’s letter and so the matter was referred to Mr Stephen Shaw, an Independent Complaints Assessor (“ICA”)for the Department of Transport. The ICA issued his report in November 2014, having considered two issues, namely whether the MCA had failed to enforce the Maritime Labour Convention Regulations 2006 and whether it had demonstrated bias towards Princess Cruises. The reasons given in the ICA’s report are very brief on those two points. On the first, the ICA says (at paragraph 40):
"It is abundantly clear that the Agency has given careful consideration to whether the Regulations were breached by Princess Cruises (witness Mr Naylor’s email of 11 September in which he said he wanted to “tread cautiously regarding the whole matter), and the MCA is entitled – in the absence of legal judgement to the contrary – to interpret the Regulations within the prism of employment law in this country as a whole. Under domestic law, an employer is generally entitled to dispense with a worker’s services during the first year if they judge their performance to be unsatisfactory..." "
I also cannot see evidence of bias towards Carnival Cruises (sic). Mr Atkinson had one telephone conversation with Mr Wilson as did Mr Prasad Panicker. Mr Atkinson had two telephone conversations with Mr Colclough. Mr Wilson’s emails were seen and considered by other officials. The conclusion at the end was that the Regulations had not been breached: that was a considered judgement not an expression of bias."[14]Mr Wilson submits to the court today that there WAS bias on the part of the MCA in linked respects, namely that Mr Naylor, who was the author of the MCA’s letter of 1 October 2014, had for many years prior to his engagement by the MCA been employed by Carnival Cruises (parent company of Princess Cruises). Mr Wilson submits, that Mr Naylor’s prior employment provided “some affiliation” with Princess Cruises and might explain why, in Mr Wilson's view, Mr Naylor took what Princess Cruises had said for granted and did not take notice of what Mr Wilson had to say. For example, Mr Wilson says that he was not given any opportunity to comment on, nor did the MCA properly address, Princess Cruises’ assertion that its first letter of termination (dated 6 May 2014) had effectively been withdrawn and replaced by a second (dated 22 May 2014) giving different reasons for termination of Mr Wilson’s contract.[15]Mr Kinnier responds that if there were any procedural unfairness on the part of the MCA, that was effectively ‘cured’ by the ICA’s report. I do not accept that submission. For example, on the issue of bias, the ICA does not address the particular issue of Mr Naylor's personal position. It does not appear from the ICA’s report that there was any disclosure of Mr Naylor’s background. Mr Naylor’s prior involvement in Carnival Cruises/Princess Cruises may well, in my view, have leda fair-minded observer, having considered the facts, to conclude that there was a real possibility of bias. However, this issue of apparent bias was not addressed at all by the ICA nor by Mr Kinnier in his submissions to the Court.[16]The ICA also acknowledges in his report that he was asked to consider only bias, and whether the MCA had failed to enforce the Maritime Labour Convention Regulations. He was not instructed to consider any other procedural matters. Despite this, the ICA made “some general observations about the way in which the MCA has conducted its review into Mr Wilson’s complaint”. One such observation was that “..the letter Mr Wilson received from Mr Naylor was on the short side, and..Mr Wilson is entitled to say that it did not give clear reasons for the judgements that had been reached.”[17]Even if Mr Kinnier is right that the bias issue was ‘cured’ by the ICA’s report which, for the reasons I have explained, I do not think it was, the ICA was not instructed to, and therefore did not save by way of “general observations”, address Mr Wilson’s procedural complaints.[18]Mr Wilson complaints about procedure were, in brief: that he was not given a fair opportunity to comment on evidence, submissions and information provided by Princess Cruises first to Mr Atkinson who gave the MCA’s first decision (on 31 July 2014) and then to Mr Carlisle, whose investigation seemingly led to Mr Naylor's second decision on behalf of the MCA on 1 October 2014; and that[19]the MCA failed to give adequate reasons for its decision of 1 October 2014.[20]I agree with Mr Wilson’s submissions. The MCA’s decision letter of 1 October 2014 is extremely brief. It does not indicate what evidence has been reviewed to reach its conclusions. Mr Wilson had clearly submitted evidence about bias yet that is not addressed save by the assertion “we have found not evidence to substantiate your allegation of MCA bias”. The letter does not give any reason for the MCA’s finding of no breach of the Maritime Labour Convention, despite the fact that Mr Wilson had submitted information about his alleged victimisation. Mr Kinnier submitted today that Mr Wilson's complaints of victimisation did not fall within the Maritime Labour Convention Regulations at all. However, if that was indeed a reason for the MCA’s decision, Mr Wilson was not to know because the letter does not say so. It seems to me that the MCA’s letter of 1 October 2014 was the result of procedural unfairness, and lacked adequate reasons.[21]It is of significance, to my mind, that Mr Wilson’s complaint was acknowledged by the MCA to be the first of its type it had ever dealt with. It therefore appears to me rather curious that the suggestion by Mr Naylor in his internal email of 11 September 2014 that “it would be prudent for us to seek legal advice” was not pursued more rigorously than the casual exchange of internal MCA emails indicates.[22]I also sympathise with Mr Wilson's complaint that the review the MCA conducted of its first decision (dated 31 July 2014) was not independent in view of internal communications that took place between the author of the MCA’s first decision (Mr Atkinson) and the author of the MCA’s second decision (Mr Naylor) as well as with the MCA’s “independent” Consultant Surveyor (Mr Carlisle).[23]In short, it appears to me that Mr Wilson’s complaints of procedural defects, apparent bias and lack of reasons by the MCA are arguable grounds for judicial review.[24]For those reasons, permission is granted.[25]Having granted permission for the reasons given above, I take the opportunity to mention the risks I perceive for both parties were this matter to proceed to a full hearing. For Mr Wilson, there is the risk that any victory in the proceedings could be hollow since the ultimate outcome of his original complaint may not be as he would hope. For the MCA, even success in these proceedings may come at the price of considerable time, effort and money when – in accordance with the ICA’s observations or otherwise – the MCA may wish in any event to consider and implement more formal procedures when fulfilling its role in relation to the Maritime Labour Convention.[26]I therefore urge both parties to consider the position carefully before proceeding to a full hearing. Mr Wilson may wish to seek legal advice (perhaps pro bono through the National Pro Bono Centre) about any contractual rights under his Employment Agreement with Princess Cruises, especially the Onboard Complaints Procedure set out in Annex II. The MCA may wish to review its procedures as indicated above, and consider in this case the role it might play (perhaps as intermediary) between Mr Wilson as employee and Princess Cruises as employer.