MRS J E C UNWIN v (1) THE GOVERNORS OF SACKVILLE SCHOOL (2) WEST SUSSEX COUNTY COUNCIL [1999] UKEAT 1068_98_1512

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1068_98_1512

Case No Appeal Nos. EAT/1068/98 & EAT/1314/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS J E C UNWINAPPELLANT

(1) THE GOVERNORS OF SACKVILLE SCHOOL (2) WEST SUSSEX COUNTY COUNCILRESPONDENTS

Before

His Honour Judge Peter Clark

Date 15 December 1999

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MISS A WEEKES QC Instructed by: Mr M P Kendall County Secretary & Solicitors Department West Sussex County Council County Hall Chichester West Sussex PO19 1QR JUDGE PETER CLARK : This is a meeting for directions convened pursuant to an order made by a division presided over by Charles J at the preliminary hearing in this case held on 21st June 1999. I remind myself that the purpose of a directions hearing is to give such directions as I think fit for securing the just, expeditious and economical disposal of the proceedings. (EAT Rule 24(4)). I have read File 1 of the papers lodged in advance of the hearing. The file is arranged in sections. I shall identify the documents referred to in this judgment by their section numbers.

[2]In the course of his judgment (Section 2) Charles J identified eight points which could be argued by the appellant at a full hearing (paragraph 15) and four points which could not (paragraph 17). However, he indicated that those points identified at paragraph 15 may not be exhaustive and at paragraph 18 left it either to this directions hearing or the division sitting at the full appeal hearing to decide what, if any further points may or may not be argued by the appellant.

[3]I should say immediately, as I indicated to the parties at this hearing, that I do not consider that I have power, sitting alone, to dismiss any ground of appeal. That must be for a full tribunal. Even if I have the power I shall not exercise it.

[4]That leaves open the question as to whether any further points ought to be identified at this stage for argument at the full hearing, particularly being in mind the developments in the case since the preliminary hearing. In addition, I am required to consider the question of skeleton arguments and bundles for the full hearing and any further directions which may seem to me to be appropriate at this stage.

[5]The decisions under appeal are, first a decision of the Chairman alone, Mr Michael Rich, promulgated on 29th June 1998 following a hearing held at Brighton on 17th June, striking out the appellant's complaint of unlawful sex discrimination under rule 13(2)(e) of the Employment Tribunal Rules of Procedure and secondly a costs order made by the Chairman, again sitting alone, by a decision dated 10th August 1998. That order was made consequent upon the decision to strike out the sex discrimination claim. A further appeal against the Chairman's decision on the appellant's review application was dismissed at the preliminary hearing.

[6]The background to this case has become long and complicated as appears from the judgment of Charles J and the extended reasons given by Mr Rich for his strike out decision (Section 13). The relevant procedural history, in summary, appears to be this. Mrs Unwin was employed by the second respondent Council as a teacher at the Sackville School, whose Governors are the first respondent. In September 1994 she presented a complaint of sex discrimination and a complaint under the Equal Pay Act 1970 to the Employment Tribunal. Those complaints were eventually dismissed. On 15th October 1996 she presented a further complaint to the Employment Tribunal alleging victimisation contrary to the Sex Discrimination Act 1975 . In that pleading, settled at a time when she was represented by solicitors and Counsel, she gave particulars of four alleged acts of victimisation. Thereafter, following termination of her employment, she was given leave on 9th June 1997 to add a further claim for a redundancy payment.

[7]After a number of false starts the substantive hearing of her complaint commenced at Brighton on 20th April 1998 before a full tribunal consisting of the Chairman, Mr Rich; Mr P Farquharson and Mrs P Penfold. That hearing was listed for five days commencing on 20th April and a further five days fixed to begin on 5th May 1998.

[8]On 30th March the appellant served her witness statements on the respondents. Her own statement totalled 135 pages plus a further eight pages by way of supplemental statement. As a result, on 20th April, Counsel for the respondents, Miss Weekes QC applied for an adjournment to consider further allegations raised in the appellant's statement. I pick up the story from paragraph 25 of Mr Rich's reasons for the strike out decision (section 13, page 5). Having started the appellant's statement, and having reached page 20 only, the tribunal members discussed the matter between themselves and then reconvened the hearing in order to invite the parties to agree to an adjournment so as to allow the tribunal to complete their reading of the appellant's statements and then resume at a later date when they, the tribunal, could ask for such further information as they might require. The parties agreed. The tribunal fixed a date for the resumed hearing, 6th July.

[9]The tribunal then embarked on what appears to be laborious work which took two full days. At the end of that process they discovered some 117 further allegations raised in the appellant's main statement. Questions of limitation arose. The tribunal formed the view that in her statement the appellant was effectively advancing a new case. The tribunal identified some 116 items of further information which they would require. In the light of those matters the Chairman arranged a further directions hearing for 17th June, which he would conduct alone. Notice of that hearing is contained in a letter dated 1st June (section 20, page 1(a)-(c)).

[10]I pause to observe that an issue arises in this appeal as to whether the appellant received proper notice of the potential strike out for the purposes of rule 13(3). See paragraph 15(1) of Charles J's judgment (section 2).

[11]Reverting to the letter of 1st June, the Chairman set out an agenda for the directions hearing before him. That included questions as to whether the tribunal should consider limitation issues; whether the parties should be given leave to amend their pleadings; whether further and better particulars were required; what questions might be posed by the tribunal to the appellant and so forth. In addition, the Chairman raised, without application by the respondents, the question as to whether the appellant had conducted the proceedings in a manner which had been frivolous and vexatious and if so, whether the Originating Application should be struck out. The letter purported to give Notice for the purposes of rule 13(3).

[12]Those are the events leading up to the hearing held before Mr Rich on 17th June 1998, at which the appellant appeared in person and the respondents were represented by Miss Weekes.

[13]Pausing once more, I remind myself that the principal appeal in this case is against the Chairman's order made following that hearing. It appears on the face of the Decision, dated 29th June, in these terms:

"This Originating Application, in so far as it is a complaint under section 63 Sex Discrimination Act 1975, is struck out under the provisions of Rule 13(2)(e). The reference under section 163 Employment Rights Act 1996 remains."

[14]That is an order expressly classified as a 'decision' in regulation 2(2) to the 1993 Constitution Regulations. Appeals against Employment Tribunal orders can succeed before this tribunal only on a point of law. The proper approach to such appeals is to be found in the judgment of Wood J in Adams & Raynor v West Sussex County Council

[1990] IRLR 215

, coincidentally the respondents in this case. Three question arise for determination:(a) whether the order was made within the powers given to the tribunal; if so

(b) whether the tribunal's discretion has been exercised within guiding legal principles;

[15]In their Answer (section 27) the respondents assert:

"The Chairman is entitled to deal with and take a decision about the striking out of the Originating Application and is entitled to deal with this alone in accordance with the appropriate rules."

[16]At paragraph 24 of her skeleton argument, dated 24th May 1999 and presented to the Appeal Tribunal at the preliminary hearing, the appellant complained that Mr Rich had deprived her of her right to a full tribunal hearing.

[17]Following the preliminary hearing, at paragraph 15(3) of his judgment, Charles J identified this ground of appeal which would be permitted, among others, to proceed to a full hearing:

"Whether it was fair for the Chairman to deal with the strike out application issues alone, particularly having regard to the facts that (a) it raised issues of fact, …"

I pause to observe that no evidence was heard at that hearing "and (b) the full tribunal had admitted the Applicants further statement had done a considerable amount of work on it and had raised pleading and procedural points in relation to it."

[18]Since the preliminary hearing, statements have been obtained from the lay members of the Employment Tribunal who sat with Mr Rich on 20th April and following days. In addition, comments have been received from Mr Rich on affidavits filed by the appellant. I refer particularly to the statement of Mr Farquharson, dated 5th August 1999, in which he describes himself as the TUC member (section 22). On page 2 of that statement he says this:

"A number of points emerged from the two days of discussion to which answers were needed and others needed clarification. It was agreed that the Chairman would take appropriate action to progress on the points raised and on 17 June a tribunal hearing took place without the lay members present. At this hearing the decision was taken by the Chairman to strike out the case. His action to hear the case entirely on his own appears to disregard completely the views of the two lay members who had been appointed to adjudicate on this case. If the Chairman felt that the case in question was frivolous or vexatious, and was thinking of striking it out, this course of action should have been discussed with us. Personally I would not have agreed with him because there were certain claims in the statement which needed answers from the Respondents. Furthermore, on 20 July Mr Rich independently decided to award costs against the Applicant without prior consultation. Again, I feel this should have been a decision for the full Tribunal."

[19]I bear in mind the invitation by Charles J to "identify the issues more closely" (section 2, paragraph 26) and the need for directions for the just, expeditious and economical disposal of these proceedings. The EAT exists to determine questions of law, not to hold state trials. I have therefore considered, by reference to Wood J's checklist in Adams , whether a preliminary point arises in this appeal as to the Chairman's decision to strike out the sex discrimination claim sitting alone in the particular circumstances of this case.

[20]First, did he have power to do so, as the respondents assert in their Answer? There is no doubt that Parliament has given increasing powers to Chairman to sit alone. See the Employment Tribunals Act 1996 , section 4. However, a substantive hearing (as opposed to the hearing of a preliminary issue under rule 6) of a sex discrimination complaint must take place before a full Employment Tribunal. Hence the tribunal was properly constituted for that purpose on 20th April 1998.

[21]It is equally clear that a Chairman has power to give directions under rule 16 sitting alone. The first five numbered paragraphs on page 2 of the tribunal's letter of 1st June 1998 (section 2, page 1(b)) plainly fall within that category, and indeed that course appears to have been expressly sanctioned by his lay colleagues, according to Mr Farquharson's statement. The question arises, however, as to whether, in circumstances where the full tribunal was plainly seized of the substantive matter, it was open to the Chairman unilaterally to hold a hearing sitting alone at which he ordered the sex discrimination complaint to be struck out without more.

[22]I am satisfied that a Chairman alone may strike out part or all of an Originating Application or Notice of Appearance for breach of an order for further and better particulars or discovery under rule 4(7) and similarly may make orders under rule 13(2)(a), (b), (d) and (f) which dispose of the proceedings. Equally, where a Chairman is sitting alone to hear a case as permitted by section 4 of the Employment Tribunals Act 1996 , he has the power to strike out under rule 13(2)(e). But does that power extend to a case in which he has embarked on a substantive hearing sitting, as he must, with lay members?

[23]The answer may lie in rule 13(8):

"Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except: (a) the hearing of an originating application under rule 8; (b) an act required or authorised to be so done by rule 9 or 10 which the rule implies is to be done by the tribunal which is hearing … the originating application;"

Rule 10 provides for decision of the Employment Tribunal.

[24]It is arguable that it is to be implied that following a substantive hearing before a full Employment Tribunal the decision, whether unanimous or by a majority, will be the decision of all three members. What then, if the decision is to strike out the claim under rule 13(2)(e); is it not arguably to be implied that that also will be a decision taken by all three members?

[25]Even if the Chairman had power to sit alone for that purpose, was his decision to do so inconsistent with guiding legal principles? See, e.g. Sogbetun v London Borough of Hackney

[1998] ICR 1264

. Alternatively, was that a decision which no reasonable Chairman properly directing himself could take, that is, to proceed to strike out the sex discrimination claim without involving his lay colleagues, particularly bearing in mind the observations of Mr Farquharson in this particular case?

[26]If a full Employment Tribunal is required to determine a complaint of sex discrimination on its merits, how much more so, it may be argued, should that full tribunal, once seized of the matter, reach a decision to strike out the claim without reaching a determination on the merits?

[27]These questions, it seemed to me on reading the papers, went to the heart of the appeal and potentially raises a point which goes to the legitimacy of the Chairman's strike out decision, regardless of its merits. If he was not entitled as a matter of law to determine the strike out issue sitting alone, then that decision and his consequent decision on costs must necessarily be set aside.

[28]Accordingly I raised this matter with the parties. It was common ground that what I shall call the "Chairman alone" point should be taken as a preliminary issue at the full appeal hearing currently listed for 1st and 2nd February 2000. I agree and shall so direct.

[29]Miss Weekes invited me to consider whether a second point, that concerning the question of notice under rule 13(3) identified in ground (1) at paragraph 15 of Charles J's judgment, should also be dealt with as a preliminary issue at the same time. Having considered submissions on that question I am not satisfied that it should be so dealt with. That point requires an investigation of evidential matters which differ from the Chairman alone point. The two are not strictly interconnected.

[30]In these circumstances I shall limit the preliminary issue to the Chairman alone point as I have identified it earlier in this judgment.

[31]More generally, I am asked at this stage to give directions as to which additional grounds should follow on from the preliminary issue if the appellant is unsuccessful on that point, and what further grounds ought to be dismissed. The difficulty is that I am sitting alone today, and as I have indicated I shall not dismiss any grounds of appeal in addition to those dismissed by Charles J and his colleagues at the preliminary hearing.

[32]Accordingly, I shall direct that so far as the hearing listed for 1st and 2nd February is concerned, the first day will be devoted to the hearing of the single preliminary issue, the Chairman alone point. Judgment will then be given on that point. If the appellant fails on that point, the second day will deal with further directions for the remainder of the appeal. On any view the full appeal will take longer than two days.

[33]For the purposes of the hearing on 1st February I shall give the following directions:(1) The bundle of documents for use by EAT shall consist of File 1, prepared by the appellant, containing 29 sections, which is presently before me. To that bundle the respondents have leave to add: (a) the remainder of any incomplete letters contained therein; (b) the jurat to the appellant's affidavit sworn on 9th July 1999 and currently contained in draft in section 20; (c) a further section, section 30, consisting of documents common to the parties and numbering some 10 in all, I was told by Miss Weekes, if required. Copies of those additional documents to be first served on the appellant by 7th January 2000.

(2) Having heard submissions on the contested issue as to whether a copy of Mr Farquharson's statement dated 5th August 1999 (section 22) ought to be sent to his colleagues, Mr Rich and Mrs Penfold for their comments in writing, particularly on page 2 of that statement, I am satisfied that they ought to be given that opportunity. It seems to me that Mr Farquharson volunteered the information contained at page 2 and it would be wrong not to give the other two members of the Employment Tribunal an opportunity to comment on those observations. Accordingly I direct that a copy of that statement be sent to the other two members of the Employment Tribunal forthwith. I should appreciate their comments, if any, by 10th January 2000; copies of those comments will then be passed to the parties and inserted in the bundle at section 22 to follow Mr Farquharson's statement.

(3) I refuse leave to the respondents to file further affidavit evidence from the respondents' solicitor.

(4) The respondents to serve on the appellant, with a copy to this court, the written authority of the first respondent Governors for the County Solicitor to act on their behalf and to instruct Miss Weekes to represent them in these proceedings. That step is to be taken by 4 p.m. on Friday, 14th January 2000.

(5) The parties will exchange skeleton arguments limited to the Chairman alone preliminary issue by 4 p.m. on Friday, 14th January 2000, with copies to be lodged at the Employment Appeal Tribunal at the same time. It would be helpful if the parties lodge at the same time a bundle of any authorities relied on by them; but, in any event, copies of any reports not contained in the Industrial Cases Reports [ICR] or the Industrial Relations Law Reports [IRLR] must be lodged at that time together with a list of authorities.

[34]Finally, I had understood, mistakenly, that I would not be sitting at the full hearing on 1st February. I now learn that the case has been allocated to me. I have raised with the parties the question as to whether they have any objection to my sitting on the full hearing having dealt with this directions hearing. No objection is taken. Accordingly I shall sit on the full hearing with lay colleagues to be named.