MR A K AHMED v (1) COVENTRY BLACK COUNCIL [2000] UKEAT 570_99_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 570_99_1104Case No Appeal No. EAT/570/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A K AHMEDAPPELLANT(1) COVENTRY BLACK COUNCILRESPONDENT
Before
Mr Justice Burton Ms S R Corby Dr D GrievesDate 11 April 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR S LIVINGSTONE (of Counsel) Instructed by: City Secretary's Department Coventry City Council Council House Earl Street Coventry CV1 5RR MR JUSTICE BURTON : This is an appeal by Mr Ahmed against the Coventry City Council in respect of a decision by the Employment Tribunal sitting at Birmingham, which dismissed his claim for breach of contract against the Coventry City Council, after earlier refusing an adjournment application, and ordered him to pay to the Coventry City Council the sum of £500 costs. There were originally three Respondents to his application, the first and third of which are in fact the same body, the Coventry Black Council, subsequently incorporated as the Coventry Black Council Limited. There is no appeal against the conclusion by the Employment Tribunal that the Appellant's claim in breach of contract against that company also should fail, simply because, we are told, that company is now insolvent liquidation. So the only solvent target for a claim for unpaid salary is the second Respondent, and now Respondent to this appeal, the Coventry City Council. The Appellant originally issued an Originating Application which mentioned the Coventry City Council as well as the Coventry Black Council, but by dint of the Coventry Black Council being named first, it appeared to be the only target by way of Respondent of the application. On a date in November 1998 it appears that the Originating Application was formally amended to make it plain that the claim was against all three Respondents.[2]The case appears to have proceeded, including at least one adjournment, when the papers were, according to the Appellant, not properly prepared, and the Tribunal left the responsibility for doing so thereafter with the Respondent, but there came a time in December 1998, just prior to the Tribunal hearing, which was to start on 29th January 1999, when the Appellant's solicitors came off the record and ceased to represent him. They notified the Respondent of their ceasing to representative him, by a letter dated 18th December 1998. The Appellant says that he did not receive a letter to that effect, which, if it were the case, would be surprising, but it does appear that he wrote a letter to those solicitors on 19th December 1998 which is no longer available for us to see, which would be consistent with his having received on 19th December a similar letter to that which was sent to the Respondent, notifying them that his solicitors were ceasing to act for him. But at any rate, by letter dated 11th January 1999 his solicitors wrote to him in response to that missing letter of 19th December 1998. This was a letter that was put before the Tribunal on the hearing day by him, whereby he waived privilege in it, and the first paragraph of the letter said:
"Further to your letter of 19th December last, please note that we had been dealing with your Industrial Tribunal matter against Coventry City Council and Coventry Black Council on a no win no fee basis; due to negative advice that we received we have felt it necessary to stop acting for you with regard to these matters and also to inform all the relevant parties."
The Appellant says now, as he said to the Tribunal on 29th January 1999, that he had not known, before receipt of that letter of 11th January 1999, that his solicitors had ceased to act for him.[3]The Appellant made a number of applications to the Employment Tribunal for an adjournment of the case fixed for 29th January 1999. The first such application for an adjournment was made on or about 19th January 1999, which would itself have been some week after he had received the letter of 11th January, on the basis that his solicitors had withdrawn from the case and that they had provided him a trial bundle that did not contain the Respondent's witness statements. That application for an adjournment was refused by the Tribunal, it seems by communication made some ten days before the hearing, on the basis that the Tribunal was satisfied that the withdrawal of his solicitors should not found an adjournment, and, no doubt, that there was time for him to get the case up himself. His second application for an adjournment was made on or about 25th January 1999, again before it started, when he learned that contrary to his belief the Tribunal had not allowed three days for the hearing but only two, that is 27th and 29th January and that was refused on the basis that two days allocated would be sufficient for the hearing. I interpolate that in any event if the matter had run over, no doubt a third day would or could have been made available at some stage in the future; but in any event, the Tribunal declined an adjournment on that ground. The third application for an adjournment was made early on the morning of 27th January itself, when the Appellant discovered that there was only one lay member available to sit, and that the second lay member had been replaced at the very last minute. The Appellant expressed concern that that meant that the second lay member would not have had time to read the papers before the Tribunal hearing and, consequently, he sought an adjournment on that ground, which once again was refused, and certainly it is within the experience of the lay members sitting with me that it is rare at the Employment Tribunal that the lay members have had any or any material opportunity to read the papers in any detail prior to a hearing and, consequently, there would be no prejudice and nothing unusual about a lay member coming into a case at the last minute, and certainly an adjournment would be inappropriate on that basis. The fourth application for an adjournment was made at the outset of the hearing on 27th January itself. This was a date when, it seems, there were two cases listed to come on together, first the application by a Mrs Prescod, a fellow-employee or staff member of Coventry Black Council together with the Appellant, although junior to him, who had apparently brought a similar case, and then his own. The two were to be taken, although together, with Mrs Prescod's application going on first, from what I can understand of the situation. He made his further application on the morning, before the start of either case, it seems on the same basis, namely by way of renewed application, as he had made the first application, namely on the basis that, his solicitors having withdrawn and the file containing witness statements having only recently been supplied to him, and even now, according to what he was saying, apparently missing some documents he was expecting to find in the file, he should not be expected to proceed unrepresented on that day with the hearing. That application was refused.[4]The Appellant makes two further complaints, which I should mention now, in relation to that morning. The first is that the Chairman came into the Tribunal and, according to the Appellant, in somewhat trenchant terms, expressed the belief that, on what he had seen, the Appellant's case was a poor one. The words that are alleged by the Appellant to have been used by the Chairman are not supported by the lay members, who have supplied their own recollection of what occurred, and we are unable to make any conclusion as to what was said in precise terms, but we are certainly prepared to accept that the Chairman did indicate that he had formed a provisional and unfavourable view of the case brought by the Appellant. The point that the Appellant makes in relation to that, when he frankly says that he could understand it if a Tribunal had pre-read papers and formed provisional views hostile to him, and then made that clear at the outset of the hearing, (although he does not, as I have already indicated, accept the precise phraseology used with which the lay members would have agreed), is that if he is going to make such a statement the Chairman should at least have read those papers; and the Appellant says that it is clear that in this case the Chairman had not read the papers, because it became apparent, the Appellant says shortly after the beginning of the hearing (whereas the Respondent says more or less at the beginning of the hearing if not slightly before), that the file of documents, which was going to become the agreed bundle for the hearing, had gone missing, had not therefore been available for pre-reading by the Chairman and could not therefore have been had in mind by the Chairman when he made his opening remarks.[5]The other complaint that the Appellant makes relates to one of the two lay members, Mr Arora. It appears now to be common ground, although the Respondent had no knowledge of this, that Mr Arora had been a Tribunal lay member some six years before when Mrs Prescod had made a claim against some body or entity in someway connected with Coventry City Council. Although Mrs Prescod has been in Court today as a friend of the Appellant, the Appellant was not able to put before us, or at any rate did not put before us, any information about whether or not Mrs Prescod was successful or unsuccessful in that application in 1993, or any information which would lead us to conclude that there was any factual connection between the two matters; the only matter he has been able to say is that in that application, whatever it was about and whether it was successful or unsuccessful, a Mr Ranson had been or at any rate was proposed to have been a witness and he was proposed as a witness in this case, because a witness statement from him was included in the bundle for this hearing.[6]The hearing proceeded and, on what we have been told, Mrs Prescod at any rate addressed the Tribunal, whether she also gave evidence is unclear to us, because the Appellant has told us that he did not cross-examine Mrs Prescod and was expecting to have a further opportunity to do so, but whether that is right or not, he certainly himself, at about 2.30 p.m. he tells us, had an opportunity to start addressing the Tribunal and he read out his witness statement to the Tribunal and was asked certain questions by the Chairman and then time then ran out and the case was supposed to restart on the Friday morning. It certainly seems to us, on the basis of what we have heard, that if the Respondent's case had been dealt with on Monday and the case had already reached as far as the Appellant beginning to give his evidence, that there would have been no difficulty in completing the case on the Friday, but because we are not entirely clear about the course of events, so that is not a conclusion which is in any way determinative in our thoughts.[7]What occurred on the intervening Thursday is not entirely clear; certainly Mrs Prescod appears to have formed the view, although, despite her own application having been largely completed, she presumably would have been required to give further evidence on Friday, that the Appellant tells us, she was determined not to come back on the Friday, because she was, as he puts it, disgusted at what she had seen on the Wednesday. He does not put his case forward on the same basis, namely that he had determined not to come back because he was disgusted, but he did not come back. What he did, it seems, was go to a doctor and then fax to the Tribunal a certificate signed by a Doctor Jayaratnam dated 28th January 1999, which is the Thursday in between the first day and second day of the hearing, recording that Mr Murrell (which is what the Appellant is also called, and I am assuming that it was in fact Mr Ahmed who was the patient) should refrain from work until 11th February due to a "depressive state". That was the limit of the certificate. He did not attend on the Friday, having sent that document and, it seems, sought an adjournment by fax of the hearing. The Tribunal refused that application for an adjournment.[8]The reasons for the refusal of the adjournment are set out in a decision from the Tribunal. There are two documents from the Tribunal; the first is the short decision of the Employment Tribunal which sets out the refusal of the adjournment and the order for costs, to which I shall refer in due course, and which was the only decision extant at the time when this Appellant originally sought his leave to appeal, which came on by way of an ex parte preliminary hearing before the then President, Morison J, who adjourned the preliminary hearing application over to today with an order that it come on inter partes, and, if leave were granted on the preliminary hearing, then the appeal could follow immediately afterwards and be dealt with.[9]Subsequent to that adjournment, and as one of the reasons for which the adjournment was granted, the other being comments on the allegations of alleged bias, there had been received detailed extended reasons from the Tribunal. In those extended reasons the Tribunal set out the reasons for the refusal of the adjournment and I read as follows from paragraphs 14 and 15 of those reasons:
"14 … The next day (second of the 3 days listed for hearing) Mr Ahmed failed to attend and sent a fax to the tribunal which reads: "
Please note that I will not be attending the hearing on Friday 29 January 1999 (sic) as I am ill. I am faxing the sick note which is in my previous name of Murrell, with this communication. In order to assist, I am also faxing the communication to the other parties." 15 There are a number of points in relation to that fax. Firstly, it was received on the morning of 28 January and that is also the date on the sick note. Secondly, it is the usual form of sick note for absence for work. The diagnosis column states it is for a "depressive state". No other medical evidence was supplied. The tribunal considered the application for an adjournment. It concluded that the applicant had shown inadequate grounds for an adjournment. It therefore decided to continue the hearing in Mr Ahmed's absence. …"[10]The grounds of appeal before us are in essence twofold. The first is that the Tribunal, or in particular the Chairman of the Tribunal so far as his conduct is concerned, and the lay member so far as his previous involvement in the Prescod application in 1993 is concerned, were tainted by bias, whether subjectively or objectively. The second relates to the failures of the Tribunal to allow an adjournment, coupled of course with their continuing to decide the matter, as they did, in the absence of the Appellant. I should add that they concluded the matter as against Mrs Prescod, in addition, in her absence but we are told that she has not sought to appeal.[11]I deal first with the question of bias. We are entirely satisfied that there is nothing in this at all. So far as Mr Arora's involvement six years earlier as between a different applicant and a different respondent relating to different subject matter is concerned, we can see no substance in this at all. The only point that might have arisen would have been the fact that Mr Ranson, it appears, would have been a witness in both matters, and, dependent upon whether Mr Ranson's evidence was accepted or not in the earlier hearing, as to which we know nothing, in fact any evidence from him appears to be a complete irrelevance so far as the outcome of this application is concerned, as will be seen in due course. There is no ground whereby a lay member six years on should not be entitled to sit in relation to a matter between different parties and with different subject matter. It might be that Mrs Prescod might have had some ground for complaint, but she has made none. We say nothing as to what the conclusion would have been if she had made any such complaint. So far as the Chairman is concerned, it is clearly unfortunate that the bundle of documents appears to have gone missing, so that he did not have the usual opportunity which a Chairman, unlike the lay members, normally has to read the contents of that file. He had plainly not done so. But for a Chairman, notwithstanding that he has not read all the documents, or indeed not even appreciated that there were more documents available which he could read and did not read, to express a view on the basis of documents that he has read is not a matter of criticism. Indeed, in this Tribunal's view, it is very often preferable, if a Tribunal has formed a provisional view, for its provisional view to be indicated, so that the parties know what they are up against rather than that a closed mind should be kept secret from the parties, nothing wrong with that either, but I am simply expressing a preference in relation to how matters go, such that a party against whom that mind is closed goes on without realising the mountain he has to climb. It is a matter of a different approach by different judges and chairmen as to how they deal with that kind of situation, but this Chairman adopted, and we certainly do not criticise him for it, the open course of disclosing the state of his mind from the outset. That does not argue bias, it argues a provisional view which is fully disclosed. We conclude that there is no ground for complaint in relation to the conduct of this hearing so far as either subjective, objective or even the apparent aspect of bias is concerned.[12]The nub of this appeal is the question of adjournment. There are two aspects to the question of adjournment. The first is whether it was within the discretion of the body below, whose decision either to adjourn or not to adjourn is being attacked on appeal, to reach the conclusion it did, and the second is always the anxious concern that any appellate body has about the interests of justice, which will lead to a secondary question, not always but very often to be asked, namely if the adjournment had been granted would it have made any difference on the one hand, or has the refusal of it caused substantial injustice on the other. We shall consider that second question first, even though logically it may be more appropriate to consider it second.[13]The hearing proceeded in the absence of Mr Ahmed and it is inappropriate and unnecessary to set out the detail of the reasons for the Tribunal's decision, as now explained in the extended reasons by the Tribunal, which have been supplied after the adjournment of the preliminary hearing. But the guts of the conclusions ought to be recited. The issue before the Tribunal was whether the Respondent employed the Appellant. The Respondent's case was that he was not so employed, indeed, that they took steps to ensure that they were not the employer of any of those working for the Coventry Black Council, which was a body sponsored and subsidised by the Respondent. The relevant paragraphs of the extended reasons I now, with some little interpolation, read out:
"17. … The application form which Mr Ahmed completed … is on Coventry Black Council headed note paper. Indeed, I interpolate that in paragraph 7 the Tribunal has recorded that the Coventry City Council had insisted that such application forms be marked to say: "
This is not a City Council appointment" and the Tribunal records in paragraph 7 that the forms that it has seen were so marked. The Tribunal continues: So is the advertisement. In fact, the advertisement begins with the heading "THIS IS NOT A COVENTRY CITY COUNIL APPOINTMENT". There is another advertisement in the Caribbean Times for the same post which is on behalf of "The Coventry Black Council". There is no reference to Coventry City Council. 18. The appointment of Mr Ahmed was made by the Coventry Black Council. The post was offered by Ms Drayton (Chairperson of the interview panel) by letter on Coventry Black Council's note paper. On 1 September 1997, Mr Rawson wrote to Mr Ahmed congratulating him on his appointment to the post of Director "of the Coventry Black Council". At no stage August and September 1997 did Mr Ahmed claim to be an employee of the Coventry City Council. Mr Ahmed has signed a contract of employment with "the Coventry Black Council (formerly African-Caribbean Development Group). There is no contract of employment between Mr Ahmed and Coventry City Council. 19. So far as the argument of a partnership, it is difficult to see how the applicant can embrace himself as an employee of Coventry City Council merely by virtue of the City Council providing grant aid. There may have been a loose partnership of sorts between the City Council and the Coventry Black Council to promote the welfare of African-Caribbean people, but that does not make the Coventry City Council an employer. We have seen a copy of the draft grant aid agreement. That agreement was apparently never executed but it is absolutely clear that here were two entirely separate organisations negotiating at arm's length. … 20. The way in which salary payments were made is also relevant. There were no salary payments direct by the City Council to Mr Ahmed. Instead, there was grant aid provision from the Coventry City Council to the Coventry Black Council who then wrote out cheques on its pay roll system to Mrs Prescod and Mr Ahmed. This filtering process makes it clear that the City Council did not treat Mr Ahmed or Mrs Prescod as employees on its pay roll. …" I interpolate to say that although it seems that there were no cheques in the bundle before the Tribunal, there were letters signed by the Appellant which were part of the bundle before the Tribunal which, in relation to Mrs Prescod, in each case asserted that Mrs Prescod was paid by the Coventry Black Council. It also appears from the extended reasons and confirmed before us today by the Appellant himself, that Coventry Black Council had, in communication with the Employment Tribunal, accepted that Mr Ahmed was employed by it (see paragraph 16 of the Tribunal's conclusions). The Tribunal continues in paragraph 20:
"There are no payslips from the City Council to Mr Ahmed, or at any rate none have been produced in these application which might establish any direct contractual link with the City Council. It is quite clear that throughout all the correspondence the City Council is only making contributions or grant aid assistance to Coventry Black Council and is not directly involved in its affairs. It decided to terminate aid when it discovered financial irregularities. It is Coventry Black Council that advertises its posts. It is they who are engaged in the recruitment and selection process (which was strongly criticised by the City Council for failing to comply with basic equal opportunities procedures) and it is Coventry Black Council which offers Mr Ahmed a contract of employment as its director on a two year fixed term contract commencing 20 October 1997. The City Council did not at any stage offer Mr Ahmed a job, nor did it have any management control or anything resembling a relationship where there was a mutuality of obligations. 21. Mr Ahmed is clearly a capable and intelligent man. However, he also strikes us as something of an opportunist. He was undoubtedly a central part of the African Caribbean Development Group and later a key figure of the Coventry Black Council. It was an organisation which he was instrumental in creating. He was its first Director. He made no claim against the City Council when the funding stopped in September 1997. His application to the tribunal was not made until 22 May 1998, when the Coventry Black Council was to all intents and purposes a defunct organisation."
The implication behind that is that the Tribunal was satisfied that the Appellant was looking for a solvent defendant.[14]In those circumstances the case, as the Tribunal found it to be, was utterly overwhelming that the Respondent did not employ the Appellant. We have to ask ourselves, therefore, and indeed we asked the Appellant, what difference it would have made if there had been an adjournment and/or what difference there would now be if we were to interfere with the Tribunal's discretionary conclusion that there should be no adjournment.[15]It is clear that the main answer Mr Ahmed would make is that he would then have, which he did not have, or at any rate take up, by not returning on the second day, the opportunity of addressing the Tribunal further than he did on the afternoon of the first day, but there is no indication of any specific fresh point.[16]As for any documents, he has not suggested that there were any documents which were not in fact in the bundle before the Tribunal, as he understands it, and we have invited him to make reference to any such documents today in attempt to show us if there might be any evidence in those documents which were overlooked by the Tribunal and to which he might have successfully drawn its attention if it had granted an adjournment.[17]We can see nothing in any of the documents either to which he has drawn our attention, which include minutes of a meeting of 16th May 1997, or which he has sought to explain and describe without handing them up, including documents of 10th January, 13th March, 10th July and 21st July 1997. There is nothing in any of those documents which would begin to falsify the case, which is overwhelmingly made out by the documents to which the Tribunal referred, that he was not employed by the Coventry City Council, or even do anything more than set a further background to a case that he was, although no doubt hardworking on his part on behalf of Coventry Black Council, nevertheless an employee or office holder of Coventry Black Council, paid by Coventry Black Council, albeit that Coventry Black Council was funded by the Respondent.[18]In those circumstances we are satisfied that there would be no injustice resulting from the adjournment and/or no ground for considering that allowing the matter to be heard again would reach any different conclusion. But nevertheless, of course, there is still the first question to be asked, namely whether the decision to refuse adjournments was made within the discretion of the Tribunal, to which I now return.[19]The adjournment applications, which are the subject matter in essence of this appeal, are those that were made according to the Appellant on the first day, being a repetition of his earlier application for an adjournment, and in his absence, when he sent the fax with the medical document, on the second day. It appears to us that it was entirely within the discretion of the Tribunal, having considered matters as they plainly did, to refuse the adjournment, both on the grounds that it was satisfied that the Appellant had the ability, the knowledge and the time to have been able to prepare and put across such case, if any, as he had, and on the basis that there was no need for an adjournment, given the ambit of the case before them and the number of documents and the understanding of all parties relating to it, which could perfectly well be explored in the two or more, if necessary, days that were available to them.[20]In those circumstances, we are entirely satisfied that there are no grounds for any appeal in this case and we would not give leave to appeal on a preliminary hearing, and, as the matter is now before us, on a full appeal in any event, we dismiss the appeal.[21]There remains the question of costs. The Tribunal, in the reasons which are set out in its extended reasons, concluded that it should make an order for £500, which was the ceiling on the jurisdiction of the Employment Tribunal, to order costs, unless it was going to send the matter off to detailed assessment.[22]The reasons why the Tribunal awarded £500 costs are set out in paragraphs 24 to 27 of the extended reasons. They correctly recite the law, by reference both to Rule 12 of Schedule 1 of the Employment Tribunal Rules of Procedure 1993 (as amended) and also the dictum of Sir Hugh Griffiths, as he then was, in ET Marler v Robertson [1974] ICR 72 , and they correctly set out the bases upon which they are entitled to order costs, and conclude that they would have ordered costs on both those bases, first, the frivolous and vexatious basis, and secondly, the unreasonable basis. So far as frivolous and vexatious is concerned, the Tribunal stated as follows:
"25 It seems to us that these words apply precisely to the applicant's claim. Although he has conducted his own case, he is an intelligent man who must reasonably have known that on the evidence, his claim was so manifestly misconceived that it could have no reasonable prospect of success. The thrust of his case is almost entirely against the Coventry City Council. He knows the Coventry Black Council are not worth pursuing. Mr Ahmed has made little or no effort that we can see to pursue his claims against Coventry Black Council. On the other hand, he had made vigorous efforts against the Coventry City Council culminating in these proceedings and it is our view that he has brought these proceedings frivolously and vexatiously."
That is plainly a conclusion which the Employment Tribunal as the industrial jury was entitled to come to. The Appellant has said that he was encouraged to proceed because of the fact that his Originating Application was permitted, even directed, to be amended to make it clear that he was bringing the claim against three Respondents in November 1998. It appears to us entirely clear that that was only a matter of administration, there being no question of any substantive decision about the arguability of the case. The Coventry City Council's name appeared on the original application but not in the right box, and it was simply a matter of making clear that it was an intended Respondent, which was the subject matter of amendment. In any event the Appellant knew, on the findings of the Tribunal, that his case was hopeless and was effectively doing a flyer in the hope of finding a solvent defendant, knowing that his actual employer, Coventry Black Council, could not make any payment.[23]The alternative basis was one which, in our conclusion, was also open to the Tribunal. They concluded that the conduct by the Appellant, including his failure to attend on the second day of the hearing, simply sending a short form medical certificate, was unreasonable. That was a conclusion that it was entitled to come, but in any event, even had we differed from that conclusion, there would remain their alternative ground of frivolous and vexatious in any event.[24]In those circumstances, we dismiss this appeal.