MRS J E C UNWIN v (1) THE GOVERNORS OF SACKVILLE SCHOOL (2) WEST SUSSEX COUNTY COUNCIL [2000] UKEAT 1068_98_0102

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1068_98_0102

Case No Appeal No. 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

Lord Davies of Coity

Date 15 December 1999

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MISS A WEEKES QC Instructed by: The County Secretary & Solicitors Department West Sussex County Council County Hall Chichester West Sussex PO19 1RQ JUDGE PETER CLARK : At a meeting for directions held before me on 15th December 1999, following a preliminary hearing held before a division presided over by Charles J on 21st June 1999, I directed that there should be a hearing of a preliminary issue in these appeals. The question is whether, a full Employment Tribunal having been empanelled to hear and determine the appellant, Mrs Unwin's complaint of victimisation contrary to the Sex Discrimination Act 1975 , the Chairman of that Employment Tribunal, Mr Rich, was entitled to strike out the complaint under Rule 13(2)(e) of the Employment Tribunal Rules of Procedure and thereafter to make a consequent costs order against the appellant, sitting alone. The background is as follows. 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.

[2]After a number of directions hearings the substantive hearing of her complaint commenced at Brighton on 20th April 1998 before the 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.

[3]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. The first day of hearing was taken up with that application. On the second day, 21st April, the appellant began to give her evidence by reading from her witness statement. She reached page 20, whereupon 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 statement 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.

[4]The tribunal having themselves read the witness statement presented by the appellant, met for two full days in Chambers. At the end of their discussions they found some 117 further allegations raised in the appellant's main statement. Questions of limitation arose. The tribunal members formed the view that in her statement the appellant was effectively advancing a new case. Some 116 items of further information were identified by the tribunal as being matters on which further assistance was required. In the light of these 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 to the parties dated 1st June.

[5]In that letter 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 and what questions might be posed by the tribunal to the appellant. In addition, the Chairman raised, without application by the respondents, a 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.

[6]That was the background to the hearing before Mr Rich held on 17th June 1998. Following that hearing, at which the appellant appeared in person and the respondents were represented by Miss Weekes, the Chairman promulgated a decision with extended reasons dated 29th June. His order read:

"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."

[7]Thereafter the Chairman again sat alone to hear a costs application by the respondents. By a decision dated 10th August 1998 he ordered the appellant to pay the respondents' costs in the sum of £500. It is against both the strike out decision and the costs order that these appeals are brought.

[8]In the course of these appeal proceedings the appellant has lodged various affidavits complaining of the conduct of the Chairman, to which both the Chairman and his lay colleagues have responded in writing.

[9]Following the preliminary hearing Mr Farquharson made a written statement dated 5th August 1999 in which he complained that the Chairman had taken it upon himself to strike out the appellant's complaint of sex discrimination without soliciting the views of the lay members. Had he been asked, Mr Farquharson would not have agreed to the claim being struck out. He raised a further complaint about the Chairman's decision to order costs, again without prior consultation with the members and with the Chairman sitting alone.

[10]Those comments, it seemed to me at the directions hearing, were strictly unsolicited. I did not have before me the views of the Chairman and the third tribunal member, Mrs Penfold. Despite objections by Mrs Unwin I directed that the comments of the Chairman and Mrs Penfold be obtained on those contained in Mr Farquharson's statement. For that purpose a copy of his statement and my judgment, delivered on 15th December 1999, which identified the preliminary issue now before us, was forwarded to the Employment Tribunal for their comments.

[11]In his response, dated 5th January 2000, the Chairman took issue with comments made by Mr Farquharson as to his, the Chairman's, conduct of the proceedings on 20th and 21st April. As the Chairman observes, those matters are not relevant to the hearing of this preliminary issue. However, he makes no comment at all on the issue of his deciding to strike out the appellant's sex discrimination claim sitting alone and without reference to his lay colleagues.

[12]Mrs Penfold observed, in her response, that she was surprised that at the hearing with the Chairman alone on 17th June 1998 he made the unilateral decision to strike out the Originating Application. She was also surprised that a full tribunal had not been called to decide the matter of costs. She expresses no personal view on the merits of those orders which were made.

[13]In these circumstances we are satisfied that the Chairman took the decision to sit alone to hear the strike out question without reference to his colleagues.

[14]It is common ground that for the purposes of determining the preliminary issue three potential questions, raised by Wood J in Adams v West Sussex County Council

[1990] ICR 546

, require consideration:(a) whether the orders made by the Chairman sitting alone were within his powers; if so

(b) whether the Chairman's discretion to exercise his powers sitting alone fell within guiding legal principles, and

[15]The Chairman's power to sit alone In recent times Parliament has extended the powers of a Chairman to sit alone. See now Employment Tribunals Act 1996 , s.4. However, that power does not extend to hearing and determining a complaint of sex discrimination. Thus a full panel was necessary to sit and hear the appellant's complaint on 20th April 1998. We are satisfied that a Chairman properly sitting alone has power to strike out under Rule 13(2)(e). Is he prevented from exercising that power once a full merits hearing of a sex discrimination complaint has begun before a full Employment Tribunal? We have considered the provisions of Rule 13(8), relied upon by Mrs Unwin, which specifically exclude the hearing of an Originating Application under Rule 8 (including a complaint of sex discrimination) by a Chairman alone, or the doing of any act required or authorised to be 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 the decision of the Employment Tribunal. It follows, in our judgment, that after the hearing of a complaint by a full tribunal the decision promulgated must be the decision reached by all members of the tribunal, whether unanimously or by a majority, or by the casting vote of the Chairman in the event of disagreement within a two member panel. However, we are persuaded by Miss Weekes that before final determination of a case on its merits the Chairman has power, sitting alone, to deal with directions under Rule 16, a hearing of a preliminary issue and the exercise of the powers to strike out under Rule 13(2), including the power to strike out on the grounds that the manner in which the proceedings have been conducted by a party has been scandalous, frivolous or vexatious (Rule 13(2)(e)). We are further satisfied that the Chairman has power to sit alone to determine questions of costs under Rule 12.

[16]Was the power properly exercised? We begin with the judicial pronouncements on the exercise of the Chairman's power to sit alone. For observations on the desirability of cases being heard by a full Employment Tribunal we refer to the judgments of Morison P in Sutcliffe v Big C's Marine

[1998] IRLR 429

, paragraphs 16-20 (hearing of preliminary issues under Rule 6) and Secretary of State v Bearman

[1998] IRLR 431

, paragraph 25 (construction of contractual documents). Those cases follow similar observations by Mummery P in London Borough of Southwark v O'Brien

[1996] IRLR 420

, paragraphs 31-33 (deductions from wages claims). In Sogbetun v London Borough of Hackney

[1998] ICR 1264

, Morison P went further and, in a judgment delivered on behalf of the EAT, held that it was perverse for a Chairman to sit alone to hear a complaint of unfair dismissal even although the parties had consented to that course. However, we think the most apposite authority when considering the particular facts of this case is to be found in Peter Simper & Co Ltd v Cooke (No.1)

[1984] ICR 6

. The Peter Simper litigation spawned two separate appeals to the EAT. The more frequently cited is the judgment of Peter Gibson J in Peter Simper (No.2)

[1986] IRLR 19

, on the question of bias or the appearance of bias. Peter Simper (No.1) , a judgment of Browne-Wilkinson P on behalf of the EAT, arose at an earlier stage in that litigation. What happened was that a full Employment Tribunal was empanelled to hear Miss Cooke's complaint of unfair dismissal against her former employer, Peter Simper & Co Ltd. Following two days of hearing the case was adjourned part-heard. Before the resumed hearing took place the employer's solicitors wrote to the Employment Tribunal applying for a rehearing on the basis that the Chairman had allegedly made comments which showed bias on his part against the employer. The Chairman, sitting alone and without reference to his lay colleagues, considered that application and directed that the forthcoming hearing date be vacated and the case be started again before a differently constituted tribunal. In so directing he made it clear that he rejected the allegations of bias made against him. That course did not commend itself, either to the applicant's solicitors or to the two lay members who had not been consulted before the Chairman gave his direction aborting the hearing. As a result a review hearing was held, at which the full tribunal revoked the earlier Chairman's order and directed that the hearing continue before the same tribunal. The employers appealed against that review decision. On appeal, as in the present case, certain preliminary issues were identified. On those issues the EAT held, first that the Chairman's order was not a decision and therefore not capable of review; accordingly the purported review decision was set aside. Secondly, although it was held that the Chairman, sitting alone, had power to order a rehearing, his decision to exercise that power in the circumstances of the case was wrong in law. Browne-Wilkinson P put the matter thus at page 10G-H:

"The next question is whether, in the exercise of his jurisdiction, the chairman erred in law on January 19. We have no doubt that he did. Although the chairman's jurisdiction is very wide, it has to be exercised on a judicial basis. An industrial tribunal, at the hearing, essentially consists of three people, each with an equal voice. The chairman is, in no sense, in a dominant position. Accordingly, if an application is made to abort a hearing before a tribunal of three, in our judgment a decision whether or not to put an end to the existing hearing and to direct a rehearing is one which must essentially be taken by every member of the tribunal and not by one alone."

It is right to add, as Miss Weekes points out, that the EAT go on to find further that in making the order without receiving the observations of the other party, the Chairman acted in breach of the rules of natural justice.

[17]Against that background we turn to consider the particular circumstances of this case. Mrs Unwin submits that if, contrary to her first submission that the Chairman had no power to sit alone once a full Employment Tribunal had been empanelled, to strike out her claim under Rule 13(2)(e), he did have such a power, then that power must be exercised judicially, in the sense explained by Arnold J in Bastick v James Lane

[1979] ICR 778

, 782. She contends that no reasonable Chairman, properly directing himself, could have taken it upon himself, without reference to his lay colleagues with whom he had spent four days in the tribunal and in chambers, considering the case, to decide of his own motion to hold and determine the question of a strike out under Rule 13(2)(e). Further, that he did so without seeking the views of the parties ( Employment Tribunals Act 1996 s.4(5)(c)).

[18]Miss Weekes resists that argument. She submits that the Chairman was acting within the Rules. He considered the matter carefully and gave the appellant a proper opportunity to be heard on the strike out issue. This Appeal Tribunal should be slow to interfere with a very experienced Chairman's exercise of discretion. She has reminded us of the relevant principles to be found in Bastick and in Medallion Holidays Ltd v Birch

[1985] IRLR 406

[19]We find ourselves driven to accept Mrs Unwin's submission. We are quite satisfied that on the material before us from all three members of the tribunal that the Chairman, having discussed the case at length with his colleagues, then decided to add to the agenda for the directions hearing listed for 17th June entirely of his own motion, that is, without application by the respondents nor reference to his colleagues, the question of a strike out. Nor did he seek the views of the parties as to his sitting alone for this purpose at the hearing on 17th June.

[20]The power to strike out is a draconian one. It means that the appellant, in this case, is denied the opportunity to have her case determined on its merits by a full Employment Tribunal, as Parliament requires. If such a decision is to be taken in such circumstances it must, we have no hesitation in saying, be taken by the full tribunal empanelled to hear and determine the case. We find that this case is more extreme than that of Peter Simper (No.1) . There, the hearing was aborted and a rehearing ordered by the Chairman acting alone. That was an error of law so the EAT held. Here, the hearing commenced before the full Employment Tribunal was aborted by the decision of the Chairman acting alone. The claim was struck out. The appellant was deprived of adjudication by a full tribunal sitting to hear her case. That cannot be right as a matter of law in our judgment.

[21]In these circumstances we shall allow these appeals. The strike out order is set aside and, it must follow as Miss Weekes accepts, so too must the consequent costs order be set aside.

[22]We have invited submissions from the parties as to whether or not this case should be remitted to the same or a different Employment Tribunal for hearing. Both parties agree, as do we, that in the interests of justice the matter should be remitted to a fresh Employment Tribunal to be appointed by the Regional Chairman. JUDGE PETER CLARK : Following our judgment in these appeals, Mrs Unwin made two further applications. "(1) For the purpose of disposing of an appeal, the Appeal Tribunal may-(a) exercise any of the powers of the body or officer from whom the appeal was brought, or

(b) remit the case to that body or officer." It seems to us, in the first instance, that having remitted the case to the Employment Tribunal we should not seek to exercise any powers of that tribunal, subparagraphs (a) and (b) of s.35(1) being in the alternative. However, even if we had power to do so, we would not in the exercise of our discretion think it right to determine the question of whether or not these proceedings are stayed pending the outcome of the High Court proceedings. That, it seems to us, is essentially a matter for the Employment Tribunal, which following our order remitting the case to the Employment Tribunal must have the conduct of its own case.