MS N SIVANANDAN v (1) LONDON BOROUGH OF ENFIELD (2) ENFIELD RACIAL EQUALITY COUNCIL (3) CHANDRA BHATIA [2001] UKEAT 0469_00_1107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0469_00_1107Case No Appeal No. EAT/0469/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N SIVANANDANAPPELLANT(1) LONDON BOROUGH OF ENFIELD (2) ENFIELD RACIAL EQUALITY COUNCIL (3) CHANDRA BHATIARESPONDENT
Before
Mr Justice LindsayDate 11 July 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have before us the adjourned preliminary hearing of a number of appeals raised by Ms Sivanandan in the matter Sivanandan v, firstly, the London Borough of Enfield, secondly, Enfield Racial Equality Council and, thirdly, Ms C Bhatia. We heard this preliminary hearing on 25 April 2001 when we dealt, at considerable length, with a number of issues and a number of Notices of Appeal and the judgment we give today cannot be sensibly understood without reference first to that earlier judgment. Rather than setting out the history again, we will invite that earlier judgment to be read, as it were, as a prologue to this.[2]There were some matters left over from 25 April in the sense that we felt at the time that we did not have sufficient information upon them and needed more information before coming to judgment upon them. The issues left over from 25 April are two. The first one (and the only one we have so far dealt with this morning) is in effect this: has Ms Sivanandan any right in law to complain that the Tribunal hearing on 1, 2 and 3 February 2000 was before only a panel of two, namely the Chairman Mr Barry and Mrs Cairns, rather than the conventional panel of three.[3]At the hearing on 25 April of this year we did not have adequate information. In particular, we had no confirmation of how it had come to be the case, if indeed it was the case, that only two had heard the issues on that day. We raised the issues in paragraphs 24-26 of our judgment on 25 April. What we then said was this:
"There is no hint that she had not been content to proceed with a panel of two at that hearing on 1, 2 and 3 February 2000. She had, indeed, complained as to an earlier hearing in March 1998 that she had had only a panel of two and she was, therefore, plainly conscious of an ability to object. But today she tells us that she had understood that she had, in effect, lost the right to complain of a panel of only two because that was something that she had understood that the Chairman had indicated to her."
[4]We then quoted from an affidavit that had then been sworn:
"She has sworn an affidavit on the subject and looking now at that affidavit, sworn on 21 December 1998, she says: 'At the start of the hearing on 21 September I asked why only one wing panel member was present. I had gone to all the trouble and expense of providing three bundles for the panel. The Chair explained that as the absent panel member had missed the 20 th March hearing she was not allowed to attend any subsequent hearings. I asked why this had not been explained to me previously and pointed out that, as a litigant in person, I had not known this. This is an example of a breach of the EAT guidelines of the Chair failing to explain procedures to me as a litigant person. Had I known that if I agreed to a two-person panel for one hearing on 20 March 1998 this decision meant that thereafter for all subsequent preliminary hearings the panel would consist of only two members, I would not have given my consent. Clearly the lawyers understood this but I did not and this should have been clearly explained to me when the earlier consent was being sought."
[5]And then we added in our judgment in April as follows:
"I might say that there is another affidavit of 17 March 1998 which touches on the subject but does not give any grounds for suggesting that Ms Sivanandan had heard something that should have led her to consider that, by consenting once to two members, she had in effect consented at all times thereafter to two members."
But then we said that it was puzzling and we needed more information.[6]So the issue was adjourned and a letter was written to the Employment Tribunal raising a number of questions to which we needed an answer. Before we go to that letter and the responses to it we must notice that, so long as parties consent to it, a panel of two rather than three can be permissible: see the Employment Tribunals Act 1996 Section 4(1)(b) and also its predecessor, the Employment Protection Consolidation Act 1978 Section 128(2)(A)(b) and Employment Tribunal Rule 8(1).[7]So the question becomes whether the parties consented to a panel of two on 1, 2 and 3 February 2000 or, more particularly, whether Ms Sivanandan can now be heard to say that she had not consented.[8]It is first necessary to see what had been done before February 2000 to see whether it could reasonably have led Ms Sivanandan to conclude that once she had consented to a panel of two that thereafter she was stuck with a panel of two.[9]The matter begins with a hearing on 20 March 1998. In response to the letter that we wrote we have the Chairman's answer of 18 May. He says that:
"(i) The hearing on 20 March 1998 was before a Tribunal composed only of Ms Cairns and myself, Ms Robertson being absent for health reasons. Paragraph 8 of the decision relating to the hearing correctly states the position as to the agreement of the parties to the matter proceeding in this way. Ms Sivanandan's subsequent appeal to the Employment Appeal Tribunal made no complaint about the matter."
[10]By reference to the same hearing in March 1998 Mrs Cairns, the other one of the two lay members on that occasion says this:
"(ii) At 10.15am on 20 th March 1998 the Chairman informed the Applicant and Respondents that Ms F Robertson (TUC nominee) had had to go to hospital for an urgent operation. The Chairman then explained that the choices were to postpone the hearing until such times as Ms Robertson was fit to re-join the panel, go ahead with only one lay member sitting or to abort the previous hearings and start the case afresh with a new Tribunal. He pointed out that the first and third alternatives would inevitably cause delay. If the case were to be postponed pending Ms Robertson's return it would mean delaying proceedings until some undefined date in the future. If the case were to be re-listed with a different Tribunal there would be the problem of setting dates for the new hearing and delay caused by going over grounds already covered. Ms Sivanandan responded first, and immediately, saying that there had already been so much delay, causing her great stress, that she would not be willing to accept any solution which would cause further delay. The Chairman suggested that she might care to take time to consider the matter but she was adamant that she wished matters to proceed with only one lay member. The Respondents, after some discussion, agreed that this was the best way forward."
[11]So, the position then, as at March 1998, is that there is a last minute sickness that deprives the proposed panel of three of one and the issue arises whether the case should go ahead and the parties ultimately agree that it should. It is quite plain from that that Ms Sivanandan knew that she had an ability to object to a two-person panel.[12]Then the matter came back on 21 September for review. As to that the Chairman says: "(iii) The hearing on September 21 and 22 was again before a panel composed of Mrs Cairns and myself. This was an application for a review of our decision on March 20 1998. Just breaking off from the quotation there, Ms Sivanandan argues fervently that it was not merely for a review but that there were other matters such as discovery and disclosure and other matters that were in issue on March 20 1998 and that seems to be the case but it was, at any rate, an application that included an application for a review.[13]Continuing with the quote: It did not appear to me that the review application should be considered by a differently constituted Tribunal. My note records that 'Ms Sivanandan asked for explanation about [there being] only two members and why [she was] not told. The Chairman explained that once Ms Robertson had left the case it was inappropriate for her to come back in and in any case this was a review'. Ms Sivanandan accepted this although not unreasonably observing that if she had known she would have spared the time and trouble of preparing a third copy of her bundle for the Tribunal."[14]The language 'once Ms Robertson had left the case it was inappropriate for her to come back in' is not a truly apt way of describing the situation, although, of course, it is commonplace that reviews take place in front of the very panel that has heard the initial case that is sought to be reviewed.[15]Continuing with the quote from the Chairman's letter he says: "(iv) & (v) I do not think I can add anything to the preceding paragraph save to say that (v) nothing was said about the composition of the panel at any future hearing; it was not expected that there would be any further hearing before this Tribunal since it proceeded to give directions for the full merits hearing which would in any case by heard by a differently constituted Tribunal, there having been a pre-hearing review.[16]That is what the Chairman says about September. Mrs Cairns says this:
"(iii) On the 21 st September 1998 the panel consisted of the Chairman, Mr Q Barry, and one lay member, Ms B J Cairns. Ms Sivanandan asked at the outset why only one lay member was present. The Chairman explained that Ms Robertson was still unwell and that, in any case, since the two-day hearing would deal only with matters arising from the hearing on the 20 th March 1998, Ms Robertson would have no knowledge of what had transpired on that day (notes p. 1). Ms Sivanandan said she accepted the situation but did not see why, as an unrepresented Applicant, she had not been informed earlier. Had she been so informed she would not have gone to the trouble and expense of producing a third set of panel documents. The Chairman apologised for her having been put to that expense but pointed out that she had accepted the situation at the previous hearing, repeating her comment on unwillingness to accept any situation which would delay the full merits hearing. Ms Sivanandan appeared to accept this and made no further comments. I can find no mention of the constitution of the panel in the further 59 pages of my notes. (iv) Neither my recollection nor my notes suggest that any mention whatsoever was made to the effect that, since Ms Robertson had not been present on the 20 th March 1998, that alone would preclude her from sitting on any subsequent hearings. Beyond the comments in (iii) above, no further mention of the matter appears in my notes. (v) There is no mention whatsoever in my notes covering the hearings on 21 st and 22 nd September that Ms Robertson would not be permitted to attend any future directions or other hearings." (vi) Neither my recollection nor my notes indicate that any practice or authority or rule relating to membership of Tribunal panels was referred to or drawn to the attention of either Ms Sivanandan or the Respondent's on either 21 st or 22 nd September 1998. Since she had accepted without comment or complaint beyond that stated in (iii) above that there was only one lay member on the panel and bearing in mind that she had, in the past, complained of excessive 'legalism' in the proceedings (the quoting of Statutes, case law etc.), there would have been no reason to."
[17]Given those explanations the probability, as it seems to us, that Ms Sivanandan either misheard or misunderstood what was being said to her and that nothing was truly said that intended to indicate that any ability to complain in the future had been lost at earlier hearings.[18]As for the hearing on 1 February itself, which, of course, is in a sense the most material of all, the Chairman in his letter says: "(viii) Ms Robertson was not, so far as I know, called to the hearing on February 1, 2 and 3 2000. This was a further directions hearing in which it would have been permissible for me to sit alone; but it seemed to me, in the interests of continuity in a complex case, and because it proceeded from the judgment of the EAT in respect of the appeal against the previous decision of the Employment Tribunal, which had comprised myself and Mrs Cairns, that it would be helpful for Mrs Cairns to attend. I do not know whether Ms Robertson would have been available and it did not occur to me to enquire, the matter not having otherwise been raised in extensive correspondence between the parties and the Tribunal. Ms Sivanandan had in a letter of September 1 1999 suggested that the matter should be heard before me sitting alone.[19]Breaking off from the quotation there, we have not got that letter and we have asked Ms Sivanandan if she has it. She has not brought it along with her today so we have not been able to pay attention to that letter. It might have thrown interesting light on the nature of things, in particular as to whether objection was taken to Mrs Cairns in that letter, but we have to proceed without it. So reverting to the citation from the letter: In her affidavit sworn on May 16 2000 she did not raise any complaints with regard to the composition of the Tribunal nor in her letter of June 29 2000 in which she urged that all interlocutory matters should be referred to me. For the hearing on February 1 Ms Sivanandan produced her own 'Note of matters to be dealt with' and the question of the composition of the Tribunal was not raised. The parties were told of the intention that the interlocutory hearing should proceed with one lay member and no objection or comment was made, other than that I believe Ms Sivanandan made reference to being before the same Tribunal about which she complained to the Employment Appeal Tribunal. (viii) Other than as set out above the issue of the Tribunal's composition was not raised or alluded to by any of the parties at the directions hearing of February 1-3 2000. No reference to the matter appears in my notes of this hearing."[20]And then the Chairman ends his letter by saying:
"Finally, I should add that at the directions hearing of February 1-3 2000 we were careful to ensure that in every aspect of our consideration of the issues before us we afforded Ms Sivanandan the widest latitude consistent with justice and approached our decision with an entirely open mind. As Ms Sivanandan has observed, we proceeded with the comments of the Employment Appeal Tribunal very much in the forefront of our mind, particularly with regard to the principles to be applied to the issue of discovery."
[21]So that is what the Chairman says about February. What Mrs Cairns says is this: (viii) At the start of the hearing on the 1 st February 2000 Ms Sivanandan said she was 'disturbed to be back before the same people' about whom she had complained to the EAT. She did not, either during that day's hearing or during the two days following (1 st , 2 nd and 3 rd February 2000) make any comment whatsoever on there being only one lay member present. In 75 pages of notes covering those three days I can find no comment whatsoever on the composition of the Tribunal panel. (ix) No one, either Ms Sivanandan or the Respondents, made any comment whatsoever on the composition of the Tribunal panel.[22]And then in a passage which has drawn fire from Ms Sivanandan this morning, Mrs Cairns talks about an address from Mrs Sivanandan to the Tribunal on 1 February 2000, being described as a 'tirade' but I don't think we need to go into that.[23]In the circumstances, whilst we do think it was an inconvenient way of dealing with things, and a way that was vulnerable to complaint, to proceed with two only, and with the lay member being only from the employer's side and, indeed, being someone about whom Ms Sivanandan had already made complaint, we do not, for all that, think it would be right to hear Ms Sivanandan to complain that she had not consented to a panel of two at that September hearing. She had been told of the intent to proceed with one lay member only.[24]The case had earlier proceeded with that one lay member without objection. She knew of the ability to challenge the composition of the Tribunal as she had raised the issue before and yet over the three days of the hearing, whilst she began by complaining that she had been dealt, as it were, the same two as before, it does not seem to have taken the form of a complaint against a panel of being only two rather than three.[25]On balance we regard the position that the opportunity to complain of two, not having been clearly taken, was lost. The explanation, that Ms Sivanandan gives of her earlier being led to believe that she had already lost the opportunity to complain, seems to us, as we have said, a misunderstanding, in all probability, of what was said to her.[26]That was the only issue left over from the Notice of Appeal of 4 April 2000. We dismiss this point also and so we have, in effect, I think, by now, dismissed the whole of the Notice of Appeal of 4 April 2000.