Sivanandan v London Borough Of Enfield [1998] UKEAT 450_98_0105

EAT

Sivanandan v London Borough Of Enfield

[1998] UKEAT 450_98_0105 · 1998-05-01

JUDGE LEVY QC :

We have before us this afternoon three preliminary hearings of appeals made by Ms Sivanandan in proceedings brought by her in the Industrial Tribunal against first, the London Borough of Enfield, secondly, the Enfield Racial Equality Council, and thirdly, against Ms C Bhatia. Her proceedings commenced by an Originating Application dated 8th March 1997, in which she named as person against whom she wished to complain the London Borough of Enfield, the Executive Committee of the Enfield Racial Equality Council, known as EREC, and the Director of EREC, Ms Bhatia. The Notice of Appearance for the first respondent was entered on 25th March 1997, Notice of Appearance for the third and second respondents were received in a form of a letter dated 27th March 1997, wrongly put in our index as 19th March 1998.

There were preliminary hearings before an Industrial Tribunal. There was one in August 1997 and a further one on 24th October 1997. The latter led to a decision of the Industrial Tribunal promulgated on 11th November 1997 which had as a finding:

"(c) The Applicant was employed by the First Respondent and the Second Respondent is dismissed from these proceedings."

From that second finding, the dismissal of the second respondent from these proceedings, Miss Sivanandan wishes to appeal. But before we deal with that aspect of her appeal we should continue with what happened below.

There was a further hearing by the Industrial Tribunal on 23rd January 1998. The decision on that hearing was promulgated on 10th February 1998. The unanimous decision by the Industrial Tribunal on that occasion was, among others:

"(e) That the Applicant's application for leave to amend the Originating Application to join sixteen individual defendants be refused."

That decision links with the decision to remove EREC from the proceedings as heard determined by the decision dated 21st November 1997. We understand from what we have been told not only by the applicant but by Mr Clark who very kindly assisted her and us on behalf of ELAAS, that it appears that there could be claims by the applicant against the members of EREC, which are the sixteen named respondents. To bring these sixteen in as respondents when EREC was dismissed as a respondent on 21st November 1997, all that was needed to be done was to amend the proceedings by putting in those names. A later application to do just this was refused because the application was made out of time. We think that there is an arguable point to go forward that this refusal was wrong. We will give leave to Ms Sivanandan to amend the Notice of Appeal so far submitted to appeal against the decision of the Industrial Tribunal sitting at Stratford dated 21st November 1997 to dismiss the proceedings against the then second respondent named as the Executive Committee of Enfield Racial Equality Council (an Unincorporated Association), the grounds of appeal being that the Industrial Tribunal erred in law by failing to consider whether notwithstanding that the Executive Council was not the employer of the appellant, the Committee might be liable under ss. 41 and/or 42 of the Sex Discrimination Act 1975 and/or ss. 32 and/or 33 of the Race Relations Act 1976 . It would be a matter for the full hearing to decide the ramifications of such an appeal if it is successful.

There was a third hearing before an Industrial Tribunal on 20th March 1998 when the decision was promulgated on 9th April 1998 when certain other matters were determined. An application for costs by Ms Sivanandan against the London Borough of Enfield because for 1½ days of earlier hearings time had been taken while the tribunal heard evidence from which it concluded that the London Borough of Enfield and not EREC was her employer failed. The applicant submitted to the Industrial Tribunal that such an argument should not have been forward by the employer who lost on it and therefore costs should have been awarded to her because the argument on that subject was conducted by the London Borough of Enfield acting frivolously, vexatiously, abusively, disruptively or otherwise unreasonably. This was a matter which was before the Industrial Tribunal and this is what they said about it in the decision promulgated on 9th April 1998:

"2 Application for costs

The Applicant sought an order for costs against the London Borough of Enfield for having unreasonably prolonged the preliminary hearing held to determine who was her employer. She complained that it was at all times clear that the London Borough of Enfield knew that it was her employer, not least because of the 72 documents produced by it to this effect; the Applicant asserted that the First Respondent contested the issue because it was part of "game". The Tribunal, having carefully considered the argument of the Applicant, and having had regard to the provisions of Rule 12(1) of the Rules of Procedure, concludes that the issue of who or what was the correct employer of the Applicant was extremely complex, and that the First Respondent did not act "frivolously, vexatiously, abusively, disruptively or otherwise unreasonably" in contesting the issue of who was the Applicant's employer. Accordingly, the application for costs is refused."

Ms Sivanandan has addressed us for some time on why she thought the employer's conduct was frivolous, vexatious etc., but she has not satisfied us that a discretionary order made by the Industrial Tribunal on the question of costs on this occasion was wrong. The tribunal appears to have carefully looked at the appropriate Rule, carefully considered her arguments and has found that the matter, although the applicant though otherwise, was extremely complex. In an Industrial Tribunal it is rare for costs to be awarded against a party who loses. The fact that the London Borough of Enfield lost on this occasion may not come as a surprise to those who were in Court at the time, but it appears to have been an arguable and indeed a complex point and in those circumstances it does not seem to us that allowing this part of her grounds of appeal to go forward would have any chance of success and therefore we will dismiss it at this stage.

Among the other issues raised in the Notices of Appeal,

EAT/450/98

and

EAT/630/98

, are questions of bias by the Chairman.

In the course of the oral discussions during this hearing we invited Ms Sivanandan if she wished to proceed with these aspects of her appeal pointing out to her that there was a possibility that if it did go forward and if it was successful the result might be that a complete rehearing of her complaints de novo , and some or all of the interlocutory work which has now resulted in the stay being reached that the Industrial Tribunal can hear her case might be lost. We did not say that this would happen, but this was a possibility. She told us that she wished her complaints to be heard as soon as possible and did not wish us to consider the various complaints of bias which she had made and on which the learned Chairman has commented in an affidavit dated 5th May 1998 and in a further letter to this tribunal dated 13th May 1998. She asked to withdraw her grounds of appeal relating to the grounds of bias, and in those circumstances we dismiss those grounds of appeal.

What will therefore go forward to a full hearing is the matter which we have identified so far, the ground of appeal, if successful, will allow Ms Sivanandan to have before the Industrial Tribunal at the hearing in due course the Unincorporated Association EREC or named members of the Committee.

We have explained to her that at the hearing before the Appeal Tribunal no evidence is likely to be permitted and the appeal should be presented from the documents which will be before the Appeal Tribunal and such further bundle as is agreed can be admitted to the Employment Appeal Tribunal. An amended Notice of Appeal on the single ground permitted to go forward should be presented to the Employment Appeal Tribunal within 14 days of today. It will be desirable that this appeal should be heard as soon as possible, because the determination of Ms Sivanandan's complaint before the Industrial Tribunal is being delayed until after the hearing of this appeal.