MS N SIVANANDAN v HACKNEY ACTION FOR RACIAL EQUALITY (HARE) [1999] UKEAT 616_99_2010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 616_99_2010Case No Appeal No. EAT/616/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N SIVANANDANAPPELLANTHACKNEY ACTION FOR RACIAL EQUALITY (HARE)RESPONDENT
Before
His Honour Judge J HicksDate 20 October 1999
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR E AKINSANMI (Chair of Personnel) JUDGE HICKS: Ms Sivanandan brought complaints against Hackney Action for Racial Equality on the grounds of discrimination and victimisation on the basis of both race and sex. The central incident in those complaints, although not the only accusation by any means that was made, was the Respondent's failure to appoint her as Locum Director. We are not concerned with the substance of the allegations except so far as they are necessary to understand the issues before us, which are wholly procedural and are concerned with the directions given by a Chairman of Tribunals, Mr Cole, in dealing with a directions hearing, the result of which was recorded in reasons promulgated on 29 March 1999. Ms Sivanandan appeals against the directions then given on a number of grounds. The final ground is that Mr Cole was biased and if that ground is established then that, of course, in principle vitiates the whole decision, and indeed we did canvass with Ms Sivanandan what action she would wish us to take in that event, but before we come to the allegation of bias it is convenient to consider whether the earlier more specific heads of appeal would stand or fall in their own right. We can take first grounds 3 and 4 because in the event, after some discussion with us in the course of her submissions, Ms Sivanandan withdrew those grounds, but it is helpful nevertheless briefly to summarise them so that the reasons for that decision of hers and our reasons for agreeing that that is the right course are at least briefly set out.[2]Ground 4 is a complaint that the Tribunal, and the Chairman, refused her request to make an application for discovery of documents. That complaint is set out at a little length but those opening words give the substance of it. Whatever happened during the course of the argument before the Chairman - and Ms Sivanandan's recollection was that she thought that that application had been rejected - it is really quite clear when one reads the directions given in writing by the Chairman that it was not rejected but acceded to. Direction a) in paragraph 23 of the Chairman's reasons reads as follows:
"Within 14 days of the expiry of the time limit within which the Respondent may, if so desired, file an amended Notice of Appearance, both parties are required to disclose to the other all documents in their possession or under their control material to the issues arising for decision. If necessary I will, upon application in writing, consider a formal order for discovery and inspection."
[3]Now it may be that that last sentence rather suggested to Ms Sivanandan that her understanding of a rejection of her application was correct, but it is quite clear first of all, in our view, that the first sentence taken alone is simply an order for general discovery of documents. It does not use the word 'discovery'; it uses the more intelligible (to ordinary people) words 'disclose all documents'. That is exactly what discovery is. The reason for the apparent discrepancy between that and the second sentence emerged during Ms Sivanandan's submissions to us, and it is that she was asking for an order for specific discovery of particular documents. We have no doubt in the light of that background that the second sentence of that direction is concerned with such an order, so that this direction amounts in summary to this:
'I make a general order for discovery of documents; if either party is not satisfied application can be made for specific discovery'
. Ms Sivanandan very naturally and properly accepts that that is a perfectly acceptable position and that is the reason why she very properly and reasonably does not pursue that ground of appeal, and those would also have been our reasons for dismissing it if she had not withdrawn it.[4]Ground 3 is a complaint that the Tribunal ordered her to provide further and better particulars of her claim despite the fact that she had already, as she submitted, complied fully and properly with a previous order to the same effect. At first it appeared that there would be a dispute about what actually happened before the Chairman, because the Chairman's reasons do not express his conclusion on this point in terms of an order, but in terms of accepting an undertaking by Ms Sivanandan. Ms Sivanandan's recollection is that she gave no such undertaking and that it was an order. That might have been a very difficult problem for us to resolve but in the event, as Ms Sivanandan tells us (although appealing against this point and considering that she was justified in the appeal), she did nevertheless comply in the sense that she served a document within the required time limit which gave, she believes, the further particulars that were intended to be required. That is not disputed by Mr Akinsanmi. I do not mean of course that the Respondents necessarily accept that those particulars are adequate. That is a matter for them. But they do not dispute, as we understand it, that the document was served. Therefore there is really no point whatsoever in pursuing this ground of appeal and that is why Ms Sivanandan withdraws it. If there remains any dispute about these further and better particulars the ball, to put it colloquially, is in the Respondents' court. It is they who would have to raise the matter if they are not satisfied with the particulars now supplied.[5]We deal next, having disposed of those two grounds that have been withdrawn, with ground 2. Ground 2 arises in this way. The Originating Application by Ms Sivanandan named as the Respondents the Hackney Action for Racial Equality and then on an attached sheet first a list of individual members of the executive committee of that body, secondly the members of the personnel sub-committee, thirdly the members of two relevant appointment panels and fourthly the director of that body, Ms Howell. The reason why Ms Sivanandan had named all those persons was that she believed that Hackney Action for Racial Equality was an unincorporated association, or at least believed that that might be so, and she understood, correctly, that one cannot treat an unincorporated association as if it were a legal entity and simply bring proceedings including a complaint of this kind against it simply by that name. The persons responsible for the actions of an unincorporated association are the individuals involved, normally the executive committee or whatever is the controlling authority within the body.[6]By the time the hearing before Mr Cole, which is now appealed to us, took place it had been established, and Mr Akinsanmi on behalf of Hackney Action for Racial Equality so informed the Chairman, that Hackney Action for Racial Equality was in fact a corporate body. I think, although it does not matter, that the precise form of its incorporation was that it was a company limited by guarantee and that indeed is what the Chairman records in paragraph 11 of his reasons. It was therefore apparent that the need to refer by name to the individual members of for instance the executive committee totally disappeared and the Chairman deals with the matter in this way, having recorded what he had been told by Mr Akinsanmi:
"He [ Mr Akinsanmi ] says that he submits the correct Respondent is as listed [ which although somewhat cryptic must mean Hackney Action for Racial Equality ] and that, as is the case with an unincorporated [ sic ] association, individual members of the committee need not be named."
That must be a clerical error, because for unincorporated associations individual members do need to be named, but the sense is quite clear that the Chairman accepts that this being a company limited by guarantee there is no need to name the individual members of the committee. And then he goes on:
"Ms Sivanandan says she agrees that proposition which appears to me to be an entirely correct understanding by both parties. Accordingly, I am content that the Respondent before me is correctly identified as Hackney Action for Racial Equality (known as HARE)."
[7]The trouble with that, Ms Sivanandan complains, is that it totally ignores the position of Ms Howell, who was not joined as a member of any of the committees or panels but in her capacity as a staff member, the director, employed by Hackney Action for Racial Equality. Mr Akinsanmi agrees that that indeed is her status. It is true that in the particulars of Ms Sivanandan's complaint she has a general heading of 'Particulars of claim against Hackney Action for Racial Equality' followed by four paragraphs which do make complaints against that body and its committees generally, but then she has a sub-paragraph which deals specifically with the position of Ms Howell as director of that body and it is quite apparent, certainly to anyone familiar with the background legislation, that that is a specific complaint against Ms Howell as an individual and separate from the complaints against Hackney Action for Racial Equality, whether by that name or through committee members. It is a little unclear that whether that was totally overlooked by everybody or whether anything that Ms Sivanandan said on the subject was overlooked, but one way or another the position of Ms Howell was overlooked by the decision of the Chairman, if the effect of his decision was to remove Ms Howell from the list of Respondents as well as all the committee members. His reasons for what he is doing quite plainly relate only to the committee members and not Ms Howell and, in our view there was, probably by inadvertence and oversight, an error of law there and that decision should be overruled. We see no particular need or merit to send the matter back. Ms Howell was properly joined from the outset. There was no reason to remove her and she should therefore be restored as a Respondent.[8]Ground 1 is a complaint that the Chairman refused to allow Ms Sivanandan to make an application to strike out the Respondent's defence on the basis that their Notice of Appearance was submitted outside the time limit. That is dealt with by the Chairman in paragraph 15 and again, however it may have appeared at the time of the hearing and whatever impression Ms Sivanandan may then have gained, it is quite clear that by the time the Chairman came to write his reasons, which is what matters as far as we are concerned, he was dealing with it not as being an actual application to strike out which he is to determine then and there, but as an application that he should order a preliminary hearing on that point and certainly, as we understand it from Ms Sivanandan, that is what she would like to happen.[9]What he is therefore declining is not a striking out application but an application that it be listed separately as a preliminary hearing. It seems that the reasons which led him to that included first of all that the Notice of Appearance was only two days late and secondly that it is an unusual course to debar a Respondent from defending for lateness, especially for quite a short period of lateness, and thirdly, but provisionally (and of course he was not deciding the issue) he had formed the view that the application to strike out had comparatively slight prospects of success. In our view those were not improper matters to take into account, and since this was a discretionary decision it is not one with which we can interfere unless either improper matters were taken into account, or relevant matters were overlooked, of which there is no sign, or the decision was simply perverse in the sense that no reasonable Chairman properly directing himself could have arrived at that decision. We see no error of law of either of the first two kinds, and we are certainly not persuaded that it was a perverse decision.[10]We should comment that although that means that this issue will have to be dealt with at the substantive hearing, that does not mean to say that it will get lost in the general evidence and discussion about the substantive issues, because we cannot imagine that such an obviously preliminary point, in the sense that it has to be got out of the way before the Respondent's right to be present and heard can be addressed, can be dealt with otherwise than at the very outset of such a hearing as a separate point. So it will be dealt with separately, the only difference made by the Chairman's decision is that it will not be separately on a separate day but separately at the outset of a day fixed for the substantive hearing. The substantive hearing will still go ahead, the only difference made by the result of the preliminary point will be whether it is a one-sided contest or a two-sided contest. We therefore reject that ground of appeal.[11]That leaves 5, 6 and 7. Ground 5 we need not spend time on. It is a complaint that the written decision fails to deal adequately with the course – I put it briefly and summarily because of the way in which the matter ended up – failed to deal in detail with the nature of the applications made, the arguments advanced and the comments which were made by the Chairman during the course of the hearing. In so far as that overlaps with the point that I have already mentioned twice - that it may be that the written decision was in some respects different from and more favourable to Ms Sivanandan than what she thought was happening at the oral hearing - that plainly is not a ground of appeal because it is the written decision that is effective and which we have to consider. In so far as it is a complaint that there is not a full enough account of the arguments, it is a matter for the discretion of the Chairman as to how fully those matters are dealt with, provided one can see from his reasons what decisions he has reached and why he has reached them; that is what is required. And indeed, as we understand it, when those considerations were canvassed with Ms Sivanandan in the course of her arguments she was content that this ground of appeal as a separate ground be dropped. Whether she formally withdrew it or not we certainly are quite clear that we should dismiss it.[12]Grounds 6 and 7 bring us to the issue of bias. Ground 6 is a complaint that an application made by Ms Sivanandan that the Chairman because of his, as she submitted, biased attitude, should disqualify himself from taking the substantive hearing, or indeed I think any subsequent interlocutory hearings, was dismissed. She appeals against that dismissal. It appears from the Chairman's reasons that he understood that she was also applying for the disqualification of another Chairman, Mr Leonard, who had heard an earlier interlocutory application (as it happened in her absence, because of illness on her part). But Ms Sivanandan tells us that she does not in any event seek the disqualification of Mr Leonard, so one is left simply with her appeal against Mr Cole's refusal to disqualify himself.[13]That is closely tied up with ground 7, which is an allegation of bias generally, and which as I said at the outset would if sustained vitiate the whole of the Chairman's decisions and leave us with the choice either of sending the matter back for a rehearing of this interlocutory directions appointment or of dealing with any outstanding directions ourselves. However that may be, we have to address it on its merits. Before doing so it is necessary to make a comment about the relationship between grounds 6 and 7, because Ms Sivanandan submits that if we find for her on ground 7 and do find bias then it follows that we should find for her also on ground 6 and disqualify the Chairman. But she says that ground 6 can be pursued independently in the sense that even if we did not find that the Chairman was biased nevertheless it is apparent from her complaint of bias and indeed from his comments in reply that there is what she calls an atmosphere of mutual hostility between them which would make it inappropriate for him to preside over any future hearing. It is therefore clearly necessary to deal first with ground 7 and then come back to ground 6 to see on what basis it has to be approached..[14]The jurisdiction to set aside the decision of a Tribunal on the ground of bias is undoubted. What is in our experience equally undoubted is the difficulty of dealing with such an allegation in the face of the way the matter comes before this Tribunal. What is required in such a case is that the Appellant make an affidavit setting out the facts on which he or she relies; that has been done by Ms Sivanandan and indeed she has also filed an affidavit sworn in support by Ms Gamble. The affidavit, or in this case affidavits, are then sent to the Chairman for comments and that was done in this case. What does not happen, perfectly understandably but with results that make it very difficult in sharply contested cases for this Tribunal to reach a decision, is any cross-examination of either party about disputed questions of fact, and these are of course essentially questions of fact of what actually happened at the hearing before the Chairman.[15]Ms Sivanandan's affidavit and the affidavit in support set out a number of allegations of conduct on the part of the Chairman which she relies on for her allegation of bias. She very frankly and fairly conceded that many of them might not as individual incidents be thought to be of great importance but she relied on the picture painted by taking them as a whole and as particular examples she complains that at an early stage when she was, as is her perfectly proper practice, taking a careful note of what he was saying he told her in sharp, she says, and peremptory terms to stop taking a note and listen to what he had to say. It would not, we think, be fruitful simply to go item by item through all these complaints. The general nature of her complaint is that it became apparent from the outset that he had some expectations, to say the least, of her likely attitude and conduct through an earlier case in which he had had some involvement in which she was bringing a complaint against a different body at Enfield and that this manifested itself in the numerous ways that she complains of, and that we should therefore find that from the outset that he was predisposed against her.[16]We are bound to say that the Chairman's comments do not very much address these particular complaints. Those comments do however, and this we think is significant, criticise in quite strong terms Ms Sivanandan's own conduct at the hearing, and we must therefore do our best, as I have said, in the rather difficult circumstances that these contrasting accounts are all we have to go on, because although Mr Akinsanmi sought to tell us what in his recollection happened we do not think we should take account of that, which amounts to fresh evidence of which the Respondents have given no prior notice and which they have not previously served on Ms Sivanandan.[17]Given therefore only the affidavits and the Chairman's response, and doing the best we can with that state of the evidence, our conclusion is that what happened at this hearing was most unfortunate and most regrettable but it was not bias in the sense which Ms Sivanandan alleges. The Chairman and Ms Sivanandan plainly irritated each other very substantially. Each complains about the conduct of the other, both complain that the other was rude, or in the case of the Chairman's complaint disrespectful, and we are sure that the whole proceeding was a very unhappy one. But that is not bias and we are simply not satisfied that the allegation of bias is made out. Therefore our decisions on grounds 1 to 5 simply stand on their own merits and are not affected by the allegation of bias but ground 6, as I have said, requires separate and final attention.[18]The situation with regard to ground 6, in view of our conclusion on ground 7, is that we do not believe that the Chairman should be disqualified from presiding over any later hearings on the ground of bias. But as I have already indicated Ms Sivanandan puts this ground of her appeal on the alternative basis that even without bias the atmosphere between the two of them is such that it would be inappropriate and improper for the Chairman to sit. It is, through no fault of anybody at all, the fact that this matter has been dealt with on both sides by lay advocates, Ms Sivanandan in person and Mr Akinsanmi who is a volunteer, as we understand, a member of the Respondents, and we have not therefore been taken through the authorities on what is itself a difficult and at present somewhat fluid field. In particular, the matter is at present before the Court of Appeal in several conjoined appeals and it is expected that important and helpful guidelines will emerge from their judgement.[19]We therefore do not feel it either timely or necessary that we should rule on the possibly difficult point of law whether simple mutual antipathy without bias is a ground on which a Chairman should be disqualified. We can well understand that it might be a ground on which many persons would feel it expedient not to sit, but that is not the point before us. We are not here to decide what Mr Cole might feel it expedient, we are here to decide whether he must as a matter of law be disqualified from sitting. If we make no ruling on this matter, which is what we are going to do, then nobody yet knows who will be the members of the Tribunal which is convened to hear the substantive hearing and this point may therefore never arise. If it does arise then an application can be made at that point. It will be decided then by the whole of the Tribunal, not just by the person objected to but by the whole of the Tribunal after proper submissions and argument. It is very likely, although we cannot be certain, that it would be decided after the Court of Appeal decision that I have referred to has been handed down, and that may or may not throw light on the matter that is not available to us. In all those circumstances we believe that the right course is to say that Mr Cole is not disqualified on the ground of bias but that whether any objection is taken to whoever are the members of the Tribunal who are convened to hear the substantive hearing, or indeed any subsequent hearings, is a matter for the parties to consider and take at that point and to be ruled upon at that point.[20]There is finally, and perhaps slightly ironically, a related matter to record which arose at the very outset of the hearing before us. I reminded the parties, if it had escaped their attention, that Mr Norman Willis had been a member of this Tribunal on the occasion of, an earlier appeal by Ms Sivanandan and asked the parties whether there was any objection to his sitting, and after some discussion it became clear that there was no objection on either side.