MR S HUSSAIN v ADDACTION (2) LEICESTERSHIRE CONSTABULARY [2000] UKEAT 755_00_0412

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 755_00_0412Case No Appeal No. EAT/755/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S HUSSAINAPPELLANTADDACTION (2) LEICESTERSHIRE CONSTABULARYRESPONDENT
Before
His Honour Judge J Altman Mr P R A JacquesDate 4 December 2000
[1]APPEARANCES For the Appellant MR R THACKER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J ALTMAN : This is an appeal from the pre-hearing review order of the Chairman sitting at Leicester on 8 May 2000, when the Appellant was ordered to pay £150 as a condition of being permitted to continue to take part in the proceedings relating to his claim.[2]Whilst not wishing to express any view one way or the other about the merits of this case, it does seem to us that there are issues of law surrounding the way in which an Employment Appeal Tribunal will view such an order to merit that aspect being discussed and clarified at a full hearing before the Employment Appeal Tribunal.[3]We are greatly indebted to Mr Thacker, who has given of his own very considerable expertise and of his time without remuneration to assist the Appellant and no doubt the Appellant is equally in his debt.[4]We deal with a number of matters that have been raised. First, an affidavit has been presented by the Appellant in this case relating to the proceedings before the Employment Tribunal. It does not give rise to any allegations of bias and the Chairman very properly did not elaborate on the reasons he had set out in the formal court order in his reply.[5]For the first time this morning Mr Thacker said that there were allegations of a type often referred to as bias or improper conduct by a Chairman. In relation to an episode the Appellant was charged with criminal offences, which led in the end to only one charge at court and which in itself led to a verdict of not guilty. When this matter came up before the Chairman, it is alleged the Chairman said that the witnesses to those offences should come and give evidence. It is alleged that he also said to the Appellant "You are by your own admission a criminal and a drug addict". There are other issues relating to the consequences of the taking of drugs or medication by the Appellant to which we will refer in a few moments. But, it seems to us, if there is to be any arena for the discussion of these matters it would require an amendment of the Notice of Appeal.[6]It seems to us that it is stretching the procedure in relation to allegations against a Chairman of this kind to categorise those two statements. There are no sufficiently obvious allegations, even if they were said, as to constitute a ground for amending the Notice of Appeal or permitting them to be argued at this stage.[7]In the decision there is reference to the Appellant having a history of drug abuse and just because a Chairman may be wrong in what he says is not evidence of improper conduct or bias. The fact of whether the Appellant had a criminal record; the fact of whether he had been addicted to drugs and discussions as to which witnesses should come to the Tribunal are all matters that were live issues before the Tribunal Chairman. A Chairman may be wrong without acting improperly or in a biased way and we do not consider there are grounds for permitting that to be argued as an issue of law. It simply does not arise, it seems to us, on the material before us.[8]However, the relationship of the rules, it seems to us, could benefit from further argument. Rule 3 of the Employment Appeal Tribunal Rules 1993, sub-rule (1) provides:
"3(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal … (c) in the case of an appeal from an employment tribunal, a copy of the extended reasons for the decision or order of that tribunal."
The relevant rules however of the Tribunal are provided in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 , Schedule 1, where paragraph 7 provides for a pre-hearing review. The procedure provides for a review hearing where both parties are entitled to submit representations in advance in writing, and to advance oral argument and the Chairman must consider the Originating Application and Notice of Appearance and either of those representations or arguments. Furthermore the rule provides that where the Chairman of the Tribunal comes to the conclusion that the application has no reasonable prospect of success (and there is a wide discretion) the order is for a maximum of £150 and an enquiry as to means is required. We pause to observe that it has not been suggested at any stage in these proceedings that the Appellant had any difficulty financially in providing this money and we infer from that that he did not.[9]It is provided however, under sub-rule (6) that:
"The tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman."
Indeed, the law previously was that the Chairman need give no reasons at all. On the face of it therefore, at Regulation and Rule level, Parliament has approved the provision of a procedure which is outside, on the face of it, the appeal mechanism because it is not a procedure for which Extended Reasons are available and the question arises as to whether there is a right of appeal at all.[10]It has been rightly drawn to our attention that section 21 of the Employment Appeal Tribunals Act 1996 , which is the Act of Parliament containing the primary legislation, provides in section 21:
"21(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an Employment Tribunal. …"
[11]Accordingly, it seems to us worthy of clarification as to whether there is a right of appeal. Secondly, is it that the Regulations are simply a procedural step and the need for Extended Reasons is simply a facilitating part of the process, and the absence of Extended Reasons is not fatal to an appeal? It seems to us there is merit in considering it because it does have implications for other appeals as well and we are mindful of that. Rule 39 of the Employment Appeal Tribunal Rules 1993 provides:
"39(1) Failure to comply with any requirements of these Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs."
[12]So that there is probably jurisdiction to proceed without Extended Reasons. But, even if there is a right of appeal, it seems to us that the process by which the Employment Appeal Tribunal is to assess the lawfulness of the order of the Employment Tribunal is made difficult by the fact that the rules only provide Summary Reasons. In this particular case they are fairly full but what is the approach of a Tribunal to be, for in ordinary appeals the decision of the Tribunal is the critical document and the question as to whether or not there are errors of law is to be discerned from it. There is, it seems to us, a point of law to consider whether that approach still applies where all that is required is Summary Reasons.[13]That approach is perhaps amplified by points that have been identified by Mr Thacker in this particular case. It appears that the Appellant was refused employment by the First Respondents at the instance of the Second Respondents, because the First Respondents wanted to consider the Appellant as someone who would have access to police cells to interview people, who required possible assistance because of alleged drug problems, and it appears that the Second Respondents refused such access on the ground that the Appellant was subject to a probation order.[14]The evidence suggests however, on what the Employment Tribunal found, that the Appellant had been found not guilty by reason of insanity in his trial; that he was subject to a supervision and treatment order brought about through a temporary psychotic episode, as a result of taking steroids, and the Employment Tribunal found in their Summary Reasons that he was not taking the medication. None of those matters deal directly with the impossibility of the Appellant working if he was subject to a probation order. But the Chairman described the Appellant as having a history of drug abuse and, by his own admission, not taking medication. It has been suggested to us that that was not the Appellant's case. That may be correct. We know not.[15]On the face of it the Chairman does not purport in his Reasons to give a comprehensive statement, as to the source of all his information, nor does he give any reason as to why he says that the Appellant made the admission as to medication and we are not saying that he should be expected to, bearing in mind they are only Summary Reasons. But these illustrate the need to clarify the status of that document in relation to any appeal hearing.[16]The view of the Chairman was that the Respondents would have little difficulty in showing justification under the Disability Discrimination Act 1995 and it may well be that there was plenty of information before him.[17]Finally, we have directed our own attention to the case of Mackie v John Holt Vintners [1982] 146, where it is pointed out that on a perversity argument under this head, which is essentially what this appeal is about, the Appellant would have to show that no reasonable Tribunal could come to the decision that there was no reasonable prospect of success and the learned Judge in that case points out that the test therefore that the Appellant would have to meet would be to show affirmatively that he had a very strong case. But that case was heard at a time when no reasons were required and we consider, for the reasons we have given, that the matter is worthy of full argument.[18]This matter will therefore go to a full hearing before the Employment Appeal Tribunal to be listed for half a day in Category C, skeleton arguments to be furnished not less than 14 days before the full hearing.[19]We have been asked to clarify the basis upon which this appeal goes forward. There is, it seems to us, an initial issue of law to determine, which is the nature of an appeal in cases of this kind, coupled with the approach of the Employment Appeal Tribunal to such an appeal, bearing in mind the summary nature of the reasons given by the Tribunal. Depending upon the outcome of that issue before the Employment Appeal Tribunal, the appeal may then embrace the fact that there are alleged to be factual errors, unjustified inferences and conclusions contained in the Summary Reasons to which I referred during the decision.[20]We are however, reminded that there was one matter to which we did not give our attention. Mr Thacker has sought leave to amend the Notice of Appeal to contend that the requirement of the payment of a deposit of £150 in the Regulations constitutes an unjustifiable restriction of the Appellant's right of access to a Court under Article 6 of the European Convention on Human Rights.[21]Our jurisdiction in relation to that argument, even if correct, is severely limited. We have no power to make a declaration of incompatibility and that is clear law in the Regulations.[22]However, the merits of the argument it seems to us are unsustainable. This is a most modest provision for the payment of a sum of money which is only to be paid by someone who can afford it, as an earnest of their faith in their own case, having been given a warning that a Chairman considers that there is no reasonable prospect of success. It is a timely piece of advice. It is to the benefit of applicants before Employment Tribunals because it avoids their being ambushed at the end of the hearing, without any notice, with an argument that costs should be awarded on the grounds of frivolousness or vexatiousness and, although Mr Thacker says it can lead to a finding of a costs order and then is more serious than that, that of course is only an evidential matter that is to be judged on the merits of each individual case.[23]The only way the order can be made is after an investigation by a judicial figure, the Chairman, and possibly Members sitting with him; it can only be made after full written representations of the allegations that are to be made have been furnished; it is not conclusive of the proceedings; it is not an inhibitory factor to anything other than a marginal extent because the application can go forward if a person can afford it and, insofar as it may lead to a costs order being made, that is simply a consequence of a party being made known the opinion of a Chairman in advance of the hearing. A person is entitled to a fair trial. They are not, however, entitled to take any case before a court, whatever its merits on any view. Providing the weeding out process is a judicial process in its own right, which it seems to us this one is, we can see no conceivable argument that there was a breach of Article 6 of the European Convention on Human Rights and we refuse leave to amend the Notice of Appeal to contain that ground.