MR A M SOORMALLY v THE DEPARTMENT OF SOCIAL SECURITY BENEFIT AGENCY [1999] UKEAT 125_98_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 125_98_1712Case No Appeal No. EAT/125/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A M SOORMALLYAPPELLANTTHE DEPARTMENT OF SOCIAL SECURITY BENEFIT AGENCYRESPONDENT
Before
Mr Justice Holland Mr R N StrakerDate 17 December 1999
[1]APPEARANCES For the Appellant MR W PANTON (of Counsel) Instructed By: Ms Sian Hughes Principal Litigation Officer Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA For the Respondents MR D BASU (of Counsel) Instructed By: Ms M Sedgwick Office of the Solicitor Department of Social Security Department of Health Sol Employment Room 527 New Court 48 Carey Street London WC2A 2LS MR. JUSTICE HOLLAND : Introduction There is a material chronology as follows: 25 th February 1999 . This Tribunal (then consisting of The Hon Mr. Justice Holland, Mrs. Edwina Hart and Mr. Roger Straker) hears the appeal of Mr. Soormally. 24 th March 1999. By an order this Tribunal allows Mr. Soormally's appeal. 9 th April 1999. The reasons for the Order are promulgated by way of a handed down reserved written judgment. 25 th June 1999. This Tribunal (then consisting of The Hon Mr. Justice Holland and Mr. Roger Straker) 'purports' to refuse leave to the Benefit Agency to appeal. Further, The Hon Mr. Justice Holland refuses an informal application on behalf of Mr. Soormally for a review. 29 th July 1999. A formal application for a review is made on behalf of Mr. Soormally; The Hon Mr. Justice Holland orders an inter-party hearing. 29 th October 1999. That hearing:[2]It is material to add that between the 25 th March and the 25 th June 1999 Mrs. Hart had been elected to membership of the Welsh Assembly and had accordingly ceased to be a member of this Tribunal. Jurisdiction[3]Of necessity at the outset of the Review Hearing two persons only sought to constitute the Tribunal, The Hon Mr. Justice Holland and Mr. Roger Straker. There was an immediate point taken by Mr. Dijen Basu, counsel for the Benefits Agency. He cited Section 28(3) Employment Appeals Tribunal Act 1996: "With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member .....".[4]On the specific instructions of the Agency, he denied consent to our proposed constitution - seemingly not on grounds personal to us but in order to deny to Mr. Soormally even an argument as to a Review. In response Mr. Panton drew attention to Rule 33, Employment Appeal Rules 1993:
"(1) The Appeal Tribunal may, either of its own motion or on application, review any order made by it and may, on such review, revoke or vary that order on the grounds that – a. the order was wrongly made as the result of an error on the part of the Tribunal or its staff ..... or c. the interests of justice require such a review ....."
[5]He submits that the mere fact that Mrs. Hart is no longer able to sit neither can or should prevent a review by the remaining members. The reply of Mr. Basu is that the statute prevails and his clients are entitled to take advantage of it. No authority was cited to us by either party.[6]In the event, we are satisfied that we have jurisdiction notwithstanding the absence of Mrs. Hart and the lack of consent on the part of the Agency. In our judgment "the proceedings" for the purposes of Section 28(3) were those leading up to the Order of the 24 th March 1999. Thereafter there have been no further "proceedings" such as require three members, absent the consent of both parties, merely such further decisions as have been required by the parties as ancillary to that order. The first such decision (incidentally, that of The Hon Mr. Justice Holland and Mr. Straker only) was as to whether to grant leave to appeal; the second such will be as to whether to review and as to whether to revoke or vary the decision upon such review. It is not without significance that this Tribunal may conduct a review of its own motion and that it may do so (and often does) without a hearing. We make this judgment conscious of the practical implications. If Mr. Basu be right then, say, the death of a Tribunal member on the day following the making of a decision would leave the latter immune from review (save for rectification of clerical error, see Rule 33(3)) and would prevent a decision as to leave to appeal, in each case absent consent from all parties. Further, instead of dealing with matters administratively and expeditiously consents would first have to be sought, even from unrepresented parties, before such ancillary matters could be resolved.[7]Again - as has happened before us - one party by withholding consent could seek to take arbitrary advantage of the inability of this Tribunal to field a full constitution so as to deny to another party a review or leave to appeal, notwithstanding the possible justice of the situation. We are satisfied that the law does not give the Agency the arbitrary advantage that it seeks and that, absent Mrs. Hart and its consent, this Tribunal has jurisdiction to rule upon the respective applications for leave to appeal and for a review.[8]We cannot depart from this preliminary issue without a comment. The Agency was entitled to withhold consent and was admirably candid as to the perceived tactical advantage of doing so. That said, we are frankly astonished that it should have taken that line rather than take its chances on the merits of the application for review. Time was (and not very long ago at that) when the good name of 'government' ruled out that sort of conduct so as to ensure that it won or lost on the merits. No doubt the Deputy Director (whom, so we are told, is considering these papers) will ponder over this - and we direct that this further judgment be laid before him (or her). The Application[9]Mr. Panton (for Mr. Soormally) drew attention to that part of our judgment in which (at page 5) we noted that by a second IT1 dated 12 th June 1997 Mr. Soormally had raised a further complaint of racial discrimination, this time arising out of the failure to select him as a project leader under the Homeless Project. In our judgment we said as to this:
"This similarly alleged racial discrimination this time in connection with his unsuccessful attempt to become a project leader in connection with the Homeless Project - an issue additional to that covered by the internal Report and the first IT1. In the event the Industrial Tribunal rejected the complaint thus raised: that finding is not the subject of appeal and we say no more about it."
Mr. Panton says that in truth that finding was the subject of appeal. He points out that by way of paragraph 11 of the Notice of Appeal, Mr. Soormally challenged the Tribunal's finding on this issue as perverse - and that this was one of the many matters to which the then counsel for the Agency, Miss Ruth Downing, responded in her skeleton argument. Turning to the hearing of the 25 th February, Mr. Panton contends that he did raise the point in argument. Turning to the reason that this Review is sought, he gave us the dispiriting (and frankly astonishing) news that there may yet have to be a rehearing of this matter as to liability and contended that there was some potential importance in connection with the ambit of that hearing for this Tribunal correctly to set out the procedural position, namely that that further finding was the subject of appeal. Finally, Mr. Panton acknowledged that this application for review was substantially out of time when initiated on the 28 th July. He and his solicitor accepted blame for overlooking the point and expressed apology. He asked us to exercise discretion in Mr. Soormally's favour. The Response[10]Mr. Basu understandably laid strong emphasis on the delay that preceded the application. Review was only a remedy if sought in a timely fashion. Again understandably he queried whether the point had really been the subject of appeal. Thus, it was not a point identified by this Tribunal as arguable at the original Preliminary Hearing and there was no reference to it in the skeleton argument prepared by Mr. Panton for the 25 th February hearing. He submitted that these omissions were not surprising: the point was plainly unarguable, being a point as to fact not law. Conclusions[11]Our joint recollection is of Mr. Panton raising the point as one secondary to his main argument. Our further recollection is of this Tribunal giving it no significant attention, in part because Mr. Panton's main argument commanded our concern, in part because of the difficulty in defining this second point as one of law. Certain it is - as we now recollect - that Miss Downing was not called upon to deal with it. Turning to our exercise of discretion, we see no advantage to anybody in misrepresenting the true position in our judgment, even if the advantage arising from a correction is presently speculative. The delay in making the application is a matter of criticism, but it seems to have caused no significant prejudice to the Agency. In the overall result we grant Review to the extent sought and direct that the material sentence should be amended to read "In the event the Industrial Tribunal rejected the complaint thus raised; that finding was the subject of appeal as being perverse but there was no full argument before us and we therefore make no ruling upon it."