Ayobiojo v London & Quadrant Housing Trust [1997] UKEAT 701_96_2507

EAT

Ayobiojo v London & Quadrant Housing Trust

[1997] UKEAT 701_96_2507 · 1997-07-25

MR JUSTICE MORISON (PRESIDENT) : This is an appeal against an Industrial Tribunal's decision which was entered in the Register on 13th May 1996. It followed a two day hearing. The decision of the tribunal, which was unanimous, was that the applicant's application that all proceedings and matters be stayed pending his outstanding application for leave to appeal and/or appeal to the Court of Appeal was dismissed, but in the exercise of their powers under Rule 13(2)(e) of the Industrial Tribunal (Rules of Procedure) Regulations 1993, the Originating Application was struck out and therefore dismissed.

The appeal is against the second part of that order.

The case has a background. Mr Ayobiojo has made a complaint of unlawful race discrimination against former prospective employers, London & Quadrant Housing Trust. Those proceedings were ongoing, and there was an interlocutory appeal which came before my distinguished predecessor and two colleagues at the Employment Appeal Tribunal on 13th October 1995. It was the order of the Employment Appeal Tribunal that although there was no error of law in the tribunal's decision, the appellant had not acted improperly, vexatiously or unreasonably in bringing the appeal, and they say:

"Despite the application made by the Applicant they should have continued with the proceedings, heard all the evidence, considered all the documents and reached a decision. We are not able to say that it was unreasonable for the Applicant to pursue the appeal in the light of the course adopted by the Tribunal itself. We therefore do not make an order for costs against Mr Ayobiojo."

They refused leave to appeal and they remitted the matter back to the Industrial Tribunal.

At the hearing before the Employment Appeal Tribunal, the respondents to the appeal, London & Quadrant Housing Trust were represented by a barrister: Mrs Goldman. The case was contested in the normal way, and at the end of the hearing an oral decision was then given, remitting the matter back to the Industrial Tribunal. As the parties were leaving the building, but still within the precincts of the Employment Appeal Tribunal, an incident took place, in which, so the Industrial Tribunal found as a fact, a serious threat was made by Mr Ayobiojo against, in particular, the respondent's barrister. He is alleged to have said and they found as a fact, that he effectively threatened that she would be killed. It was also clear that what was said at that time was said in anger. No actual violence took place. The barrister and her instructing solicitor were both alarmed by what had happened and withdrew back into the building. Our security guard here positioned himself at the top of the steps and the applicant and his assistant then left by taxi.

The matter was drawn to the attention of officers of the Employment Appeal Tribunal and it is clear from what we have been told that the learned President was made immediately aware of the incident himself. The police were called. They attended some little while later, but subsequently no prosecution occurred and no proceedings for contempt were instituted.

When the matter went back before the Industrial Tribunal on 15th April 1996, the prospective employers made an application that the tribunal should exercise its powers under Rule 13(2)(e) because of the incident which we have just described. Accordingly, the Industrial Tribunal set about trying the question as to what actually happened on 13th October 1995 at the Employment Appeal Tribunal's premises.

They heard the evidence, and concluded that the applicant, Mr Ayobiojo had indeed uttered "a very angry and unpleasant threat towards Mrs Goldman", the barrister. The solicitor accepted that the words and conduct were not aimed directly at her but she herself felt very threatened and froze at that moment. Having arrived these conclusions, the Industrial Tribunal said that it was within their power under Rule 13(2)(e) to strike out the Originating Application and they proceeded to do so.

The principal question at issue on this appeal is whether the Industrial Tribunal were right so to construe their powers given to them by the Rules. The Industrial Tribunals are creatures of statute. Their jurisdiction stems only from the powers which have expressly been conferred on them. They have limited, if any, inherent jurisdiction. It is not said in this case that they had any relevant inherent jurisdiction. Rules of Procedure are contained in Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 . Those Regulations are made pursuant the statutory authority conferred on the Secretary of State by s.7 of the Industrial Tribunals Act 1996 . S.7(1) provides:

"(1) The Secretary of State may by regulations ("industrial tribunal procedure regulations") make such provision as appears to him to be necessary or expedient with respect to proceedings before industrial tribunals."

The Employment Appeal Tribunal is also a creature of statute just as is the Court of Appeal. It has inherent jurisdiction, it is a superior Court of Record and has all the powers of the High Court. S.30 of the same Act authorises the Lord Chancellor to make rules called the "Appeal Tribunal procedure rules" with respect to proceedings before the Appeal Tribunal.

Rule 13 of the Industrial Tribunals Rules, subparagraph (2)(e), provides as follows:

"(2) A tribunal may-

. ..

(e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious; ..."

It is submitted by Mr Lynch on behalf of the Housing Trust in a full argument which was helpfully presented to us in writing, that the proceedings referred to means, in effect, the proceedings of an Industrial Tribunal from the time when an Originating Application is lodged until a decision is given, and that because the Employment Appeal Tribunal had remitted the matter back to the Industrial Tribunal, therefore, the incident related to the conduct of the applicant in proceedings in the Industrial Tribunal which had been conducted by him or on his behalf.

It seems to us quite clear that the proceedings to which reference is being made in Rule 13(2)(e) are the proceedings before Industrial Tribunals. The question therefore arises, as it seems to us, is whether the incident which took place could be said to relate to the manner in which the applicant was conducting proceedings before Industrial Tribunals; or whether more appropriately, his conduct was with respect to proceedings before the appeal tribunal.

The decision of the Industrial Tribunal was set out in paragraph 35 of their decision:

"35. ... It is our conclusion that the proceedings in the Employment Appeal Tribunal had been concluded with the consequence that the case had been remitted to the Tribunal for the part-heard hearing to be concluded. The proceedings were therefore on-going. The conduct which we had to consider was conduct which took place on the steps of the Employment Appeal Tribunal and it seems to us was very much within the context of these on-going proceedings. There was no reason of any kind for the Applicant to have any contact with Mrs Goldman other than within the context of these proceedings and in her role as the Respondent's Barrister (at that time)."

It seems to us that it is straining the language of the Rules to suggest that the conduct of the applicant occurred in the course of Industrial Tribunal proceedings. It was not in relation to those proceedings at all, as it seems to us, that his misconduct occurred. It was in the precincts of the Employment Appeal Tribunal. It was therefore a matter for the Employment Appeal Tribunal to deal with, and there were ample powers which we have by way of contempt, to have dealt with that, had my distinguished predecessor been of the view that such course was appropriate.

In any event it seems to us impossible to say that the Employment Appeal Tribunal's proceedings had come to an end at that time. The technical position is that until the order is drawn up and given to the parties, the Employment Appeal Tribunal has not concluded its proceedings, although it could have been anticipated that the order remitting the matter would be following in the immediate future.

It seems to us important that where Industrial Tribunals are given a direction that the matter is remitted, they should then carry out the terms of that order. The order when it was made simply directed them to continue with the hearing. That is what they should have done; and it seems to us that they have acted outwith their powers. They did so in response to an invitation made to them by the respondents. They are not, therefore, to be criticised for what they did. But we are strongly of the view that in future Industrial Tribunal do not seek to concern themselves with matters with which this Court is more properly concerned.

The second ground on which the Industrial Tribunal purported to dismiss the proceedings is to be found in paragraph 41 of their decision:

"41. A further consequence of our conclusion on the facts, however, is that we have found that the Applicant has not only been guilty of scandalous and vexatious behaviour but that he had deliberately lied on this issue. Whilst it is not an issue which is central to his original claim of discrimination, it places us, we find, in the situation that we can no longer have confidence in the veracity or accuracy of the Applicant's evidence and thus in turn in any of areas of conflict of fact in the main proceedings. We would have found it impossible to put out of our minds the conclusion about the Applicant's truthfulness. Since therefore we have come to the conclusion that we could not rely on the Applicant's evidence in support of his case we find that his principal claim with depends on his evidence has no prospect of success. In consequence therefore we additionally view the claim as "frivolous" within the Rule."

It seems to us that, despite Mr Lynch's best endeavours, it is quite impossible to support the tribunal's conclusion in this paragraph. Strictly speaking, this point does not arise separately because, in our view, they should not have embarked on the exercise which they did in any event. But the fact that somebody has lied in relation to one matter, must, to any open-minded and fair-minded judge, leave open the possibility that he his telling the truth on other matters when the evidence has yet to be given. It seems to us most unfortunate that a judicial tribunal should have apparently taken the view that because there has been a lie about one matter, thereafter whatever the evidence they will not be able to accept that person's evidence in the future. It seems to us that this is a clear case where the tribunal have again erred in law.

Accordingly, we are firmly of the view that this appeal should be allowed. It follows inevitably from discussions that we have had with the parties, that the only just consequence of this order is that the matter will have to go back for a fresh hearing before a differently constituted Industrial Tribunal.

We do not in any way wish to minimise the seriousness with which this Court will review incidents of the kind described by the Industrial Tribunal, and the President wishes to make it perfectly clear that if such an incident were drawn to his attention, he would immediately cause appropriate proceedings to be instituted, so as to make it plain to parties that the proceedings in the Employment Appeal Tribunal are to be treated with respect and not with contempt. For these reasons therefore the appeal must be allowed.

[Mr Lynch on behalf of the respondents applies for leave to appeal to the Court of Appeal.]

MR JUSTICE MORISON (PRESIDENT) : We are unanimously of the view that this application for leave to appeal should be dismissed. We will give our reasons shortly.

It is first said that this appeal raises a novel point of law. It is true that it raises a novel point. That does not make it any the better. Indeed, in our view, it is simply unsustainable. Secondly, it is urged on us that the respondents are a charity and, an appeal would represent a cheaper alternative than the prospect of having to go back before an Industrial Tribunal to revisit the issues which the first tribunal had been engaged in. We are firmly of the view that that is not a good reason for there being an appeal.

We would hope that the parties would set about having the issues between them heard and determined fairly by an Industrial Tribunal as soon as possible, and we would express the view that that should occur whether or not leave to appeal is granted by the Court of Appeal. But suffice it to say, in our judgment there is no ground whatever for suggesting that there is an arguable point of law fit for hearing before a full Court of Appeal.