LONG CLAWSON DAIRY LIMITED v MR C P TURNER [1999] UKEAT 902_99_0612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 902_99_0612Case No Appeal No. EAT/902/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONG CLAWSON DAIRY LIMITEDAPPELLANTMR C P TURNERRESPONDENT
Before
His Honour Judge Peter ClarkDate 6 December 1999
[1]APPEARANCES For the Appellant MR G HARBOTTLE (of Counsel) Peter W Marsh & Co Pembroke Gardens 19 High Street Melton Mowbray Leicestershire LE13 0TZ For the Respondents MS D DAVIES (of Counsel) Freeth Cartwright Hunt Dickins New House 33-44 Bridlesmith Gate Nottingham NG1 2GQ JUDGE PETER CLARK : I shall begin with the relevant history of this matter. The applicant before the Leicester Employment Tribunal, Mr Christian Turner, was employed by the respondent company from 7th April 1998 until his dismissal by written notice dated 10th February 1999 expressed to take effect on 10th March 1999.[2]Before expiry of that notice, on 5th March 1999, he presented an Originating Application to the Employment Tribunal. He there raised two matters of complaint,(1) sexual harassment and(2) unfair dismissal. For present purposes I am concerned only with the former complaint. The background to that, on the applicant's case, is that he was subjected to sexual harassment by a male manager during his employment, whom I shall refer to as X; that he complained about that matter to the respondent's management, who did not properly deal with that complaint and that he was dismissed by notice dated 10th February 1999.[3]The claim was resisted on its merits in a Notice of Appearance dated 6th April 1999. In addition, the respondent took the point that the complaints were presented out of time.[4]The limitation issue came before an Employment Tribunal on 23rd June 1999. On that occasion the applicant was represented by a Citizens Advice Bureau worker, Mrs Veronica Bellers, who had been named as his representative on the Form IT1. The respondents were represented by their solicitor, Mr Marsh.[5]By a decision with extended reasons dated 19th July 1999 the Employment Tribunal held, so far as is material, that the applicant's claim of sex discrimination incorporated a claim for victimisation, and that it was presented within time. I should add that at the request of the respondent the Employment Tribunal made a restricted reporting order in respect of X. None was applied for in respect of the applicant.[6]Against the tribunal's decision on limitation the respondent appealed by a Notice dated 6th August 1999. Since that was treated as an interlocutory appeal, to be heard as a matter of some urgency since a substantive hearing of the sex discrimination claim was anticipated before the Employment Tribunal, the appeal did not go through our Preliminary Hearing Procedure. On 13th August 1999 a Notice of Hearing of the appeal was sent to the parties. The appeal was to be listed for 14th September.[7]On 24th August 1999 the applicant filed an Answer, settled by Mrs Bellers which begins:
"The Respondent [ the applicant below ] will be unable to be represented because he has been given to understand that he is not entitled to Legal Aid for Appeals on Preliminary Hearings."
[8]On 14th September the appeal came on before a division of the Employment Appeal Tribunal on which I sat together with Mr Ezekiel and Mrs Marsland; the respondent employer, the appellant before us, was represented by Counsel, Mr Harbottle. There was no appearance by or on behalf of the applicant. In view of the opening paragraph of the Answer, and without being able to raise anyone at the CAB office by telephone, we proceeded to hear the appeal. Mr Harbottle developed his skeleton argument submissions orally in support of the appeal. A question then arose as to whether it would be appropriate for the Employment Appeal Tribunal to make a restricted reporting order ['RRO'] in respect of X. A decision in the appeal was reserved, partly to allow for written submissions by the parties on the RRO point to be made.[9]On 15th September the CAB were informed of the hearing having taken place the previous day before this Court, whereupon they immediately faxed the Court to say that they were unaware of the hearing date fixed for 14th September, not having received Notice of that hearing. They wished to be heard on the substance of the appeal.[10]On 21st September the respondent's solicitors were asked whether they would agree to a rehearing of the appeal, if not, a meeting for directions before me was mooted. Meanwhile, we took no steps to determine the appeal.[11]The respondent's solicitor did not immediately agree to a rehearing, but raised a number of possible permutations in his letter of 24th September. Then, on 28th September, Mrs Bellers wrote to both the EAT and the respondent's solicitors with profuse apologies. The CAB had found the original EAT Notice of Hearing dated 13th August.[12]That admission having been made, the respondent's solicitors opposed any further hearing of the appeal by fax of 28th September. Further correspondence ensued culminating in a directions hearing fixed for today before me. The issues before me at this hearing were formulated in a letter to the parties dated 18th November 1999 in these terms:
"At the directions hearing listed before me on 6 December 1999, 2 issues arise for consideration: (1) no determination having been made in this appeal, ought the Respondent [ the applicant below ] to be given the opportunity to make oral representations on the substance of the appeal, thus necessitating a rehearing of the appeal heard on 14 September, and if so, on what terms as to costs, and (2) ought a restricted reporting order (RRO) to be made in this case and if so in what form."
First Issue[13]Legal Aid has now been granted to the applicant. Solicitors have been instructed in place of the CAB and Ms Davies appears on his behalf today.[14]It is common ground between Counsel that, no decision having been made in the appeal, there is no question of a review under Rule 33. I have discretion as to whether to allow the applicant to take part in the appeal and for that purpose to order a rehearing.[15]Ms Davies submits that such an opportunity ought to be given to the applicant. If the appeal succeeds his claim of sex discrimination will be dismissed without a hearing on its merits. Before overturning a reasoned decision of the Employment Tribunal this Appeal Tribunal ought to have the benefit of oral argument on both sides. That the applicant did not appear and was not represented on 14th September was solely due to an administrative error on the part of his previous advisers, a voluntary organisation. He now has Legal Aid so that Counsel will appear on his behalf. He will be greatly prejudiced if the matter proceeds to a conclusion without his being properly heard. The only prejudice to the respondent, she submits, will lie in the costs thrown away by the additional hearing. She argues that such costs will be modest and that in any event the applicant should not be treated as a party at fault. The fault lies solely with his former advisers, who themselves were not in any way guilty of deliberate misconduct.[16]Mr Harbottle, for the respondent, no longer pursues the point that a further hearing before this tribunal will delay proceedings below. It seems that criminal proceeding are now on foot and as a result the Employment Tribunal proceedings have been stayed generally. However, he submits that the respondent will be put to unnecessary expense. The applicant was given a proper opportunity to be heard, his former adviser had indicated that if Legal Aid was not available she would rely on written representations and these are before the EAT. He submits that no further hearing should take place.[17]If I decide otherwise, then he submits plainly the appellant is entitled to the costs thrown away. I have been shown an itemised bill of costs and the application for costs is put on the basis that the costs thrown away by the adjourned hearing of 14th September and the directions hearing today should be met by the applicant. The total of that summary of costs is £3,355.80. I have not been given any information as to the applicant's means, but Mr Harbottle submits, that if an order for costs is made against him then that maybe a matter which will entitle him to indemnity from the Citizens Advice Bureau.[18]I have carefully considered the rival submissions. It seems to me that my task is to balance the interests of the parties and the need to do justice in this case. In my view justice will best be served by allowing the applicant to make oral representations in the appeal. In these circumstances I shall direct that the appeal be reheard, not necessarily by same division that heard the appeal on 14th September, although it would probably be sensible if I were to preside on the next occasion. The fresh hearing will be listed for half a day. There will be exchange of skeleton arguments not less than 14 days before the date fixed for the rehearing. Copies of those skeleton arguments to be lodged at the same time with the Employment Appeal Tribunal. I would ask Mr Harbottle to indicate whether he intends to rely on his original skeleton argument submitted in advance of the hearing on 14th September. Alternatively, if he wishes to recast that skeleton he is free to do so. Meanwhile, I trust that the full merits hearing currently stayed pending the criminal proceedings before the Employment Tribunal will remain stayed pending the outcome of this appeal regardless of the timing of the criminal proceedings.[19]So far as costs are concerned, I have been invited by Mr Harbottle to make at least an order in principle today. I am satisfied that in principle the appellant is entitled to the costs thrown away; however, that raises a number of further questions. The first is: what are the costs thrown away? Are they the costs of the original hearing on 14th September coupled with the costs of today, as Mr Harbottle submits; or are they, as Ms Davies submits, the costs which would be thrown away by the need to have a further hearing in the future and possibly the costs of today, which, it seems to me, are occasioned directly by the Citizens Advice Bureau's error in not being aware of the hearing, of which they were notified, on 14th September. The second problem is that since 17th November the applicant has become legally aided, he would normally be entitled to the usual order as to costs against a legally-aided party from that date. The third difficulty is that I have no indication as to his means for the purpose of assessing the costs if the costs thrown away are to be treated as those incurred up to 14th September and up to the date of this hearing. Finally, because costs do not follow the event in this appeal tribunal, it seems to me that it would be desirable for any final determination on the question of costs to be made by a full division of this tribunal sitting on the next occasion rather than simply made by me sitting alone. In all these circumstances I shall reserve the question of costs to the final appeal hearing. Accordingly, whilst as I have indicated the lay members need not necessarily be the same as those who sat with me on 14th September, I shall direct that the further hearing will come before me. Second Issue[20]Although objection was taken by the Citizens Advice Bureau to an RRO being made in respect of the respondent's witness, X, in correspondence that is not maintained by Ms Davies today. Nor does she seek an RRO in respect of the applicant.[21]Having considered the submissions of Mr Harbottle I am satisfied that an RRO should be made under both Rules 23(2) and 23(3) of the EAT Rules of Procedure 1993. There is an allegation of a sexual offence against the witness X for the purposes of Rule 23(2) and further, there are allegations of sexual misconduct for the purposes of Rule 23(3). In these circumstances I direct that the Registrar shall ensure that X is not identified in any judgment or order of this Appeal Tribunal under Rule 23(2). I make the usual order under Rule 23(3). I have not identified X in this order and should there be any difficulty as to that person's identity the Registrar can refer back to me.