MR S HUSSAIN v (1) ADDACTION (2) LEICESTERSHIRE CONSTABULARY [2001] UKEAT 0755_00_2310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0755_00_2310Case No Appeal No. EAT/0755/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S HUSSAINAPPELLANT(1) ADDACTION (2) LEICESTERSHIRE CONSTABULARYRESPONDENT
Before
Mr Justice LindsayDate 23 October 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the 1st Respondent For the 2nd Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE FIRST RESPONDENT MISS LUCY RAWDEN (Solicitor) Messrs Harvey Ingram Owstons Solicitors 20 New Walk Leicester LE1 6TX THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Full Hearing the appeal of Mr Hussain in Hussain v(1) Addaction(2) Leicestershire Constabulary . The Appellant, Mr Hussain, has put in lengthy written submissions including some evidence. Addaction, which is a charity, does not appear but has also put in written submissions. Leicestershire Constabulary appeared today by Miss Rawden. We have a skeleton argument from Mr Swift which she has adopted as argument on behalf of the second Respondent.[2]The case concerns a Rule 7 deposit. On 10 January 2000 Mr Hussain's employment with Leicester Community Projects Trust ceased. He was given one month's notice from 10 January 2000. On 1 February 2000 he launched an IT1 against Michelle Scrimshaw and Addaction - or possibly Michelle Scrimshaw at Addaction - it seems, though, to have been taken as an IT1 against Addaction. It was not the clearest of IT1s; it was for:
"Discrimination – which may result in termination of contract/inability to continue with employment."
The discrimination that was alleged was said to be disability discrimination. The IT1 suggested that Mr Hussain had been employed from November 1999, although it does not seem very likely that he had been employed by Addaction from that date. No representative was identified as acting for him.[3]On 1 February 2000 there was an IT3 on behalf of Addaction. On 21 February there was a second IT1, this time against Leicestershire Constabulary. Mr Hussain had no solicitor acting for him; he alleged disability discrimination against the police. On 14 March there was an IT3 from Leicestershire Police denying any discrimination. On 8 May 2000 there was a Pre-Hearing Review and reasons were given for the decision; it was before the Chairman, Mr D Price, alone. The Pre-Hearing Review Order was as follows:
"The decision of the Tribunal is that the applicant is ordered to pay a deposit of £150 as a condition of being permitted to continue to take part in the proceedings relating to his claim of disability discrimination."
On 12 June there was a Notice of Appeal from Mr Hussain. On 4 December 2000 there was, as is usual, a Preliminary Hearing at the Employment Appeal Tribunal; it came before a panel Chaired by His Honour Judge Altman. Leave to amend the Notice of Appeal was refused. It was held that no issue of law arose such as could be sent to a Full Hearing as an arguable error of law, save for these two; firstly, whether appeal is possible in such cases and how it is to be conducted, and, secondly, was the Employment Tribunal's decision perverse.[4]The Employment Appeal Tribunal refused a proposed amendment to enable allegations of bias on the part of the Chairman to come forward to a Full Hearing. They also refused argument under the Human Rights Act and The European Convention of Human Rights to come forward to this Full Hearing, that latter argument that was not allowed to come forward being that the requirement of a payment of a deposit before the case could be heard at the Employment Tribunal was an unjustifiable restriction on free access to a Court. So far as we know there has been no appeal against the decision at the Preliminary Hearing at the Employment Appeal Tribunal so there are only two issues before us, the two that we mentioned a moment ago. We have, as I mentioned earlier, very full written submissions from the parties.[5]The first heading therefore, dealing with the first of the points, could be headed 'Appealabilty'. The 2001 Employment Tribunals Rules came into force on 18 April 2001 but every aspect of this case, except for today's hearing, ante-dates 18 April 2001 so we need look, and should look, only at what one might call the 'old rules', of 1993. It is necessary to look at Rule 7 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1; paragraphs 7(4) to 7(9) say this:
"(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter. (5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit. (6) An order made under this rule, and 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. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit. (7) If a party against whom an order has been made does not [pay] the amount specified in the order to the Secretary either – (a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or (b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days, the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates. [(8) The deposit paid by a party under an order made under this rule shall be refunded to him in full except where rule 12(8) applies.] (9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."
It is plain that what emerges from the Employment Tribunal in such a Rule 7 case is an 'order' – see Rule 7(4), 7(5), 7(6), 7(7), 7(8) – they all refer to an 'order'.[6]At this point one has to go back to the Employment Tribunal Act 1996 Section 21 which says:
"21 Jurisdiction of Appeal Tribunal (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] under or by virtue of –…"
It then gives a series of statutes and regulations listed (a) to (j). The word 'decision' in those words in Section 21 is given no defined meaning. In the Employment Tribunals Act one sometimes finds references to "decisions, orders and awards" – see Section 7(3)(j); to any "decision, order or award" – see Section 7(5)(b); sometimes one finds reference merely to 'orders' – see Section 8, Section 9(2)(a); or sometimes just to 'decisions' – see for example Section 11(1)(a). All those are references without any clear meaning emerging such as to deny the word 'decision' in Section 21(1) its full ordinary meaning, one capable of embracing any determination, award or order.[7]So far then we have seen nothing pointing towards the unappealability of a judgment on a Rule 7 deposit being required. Nor, as it seems to us, is there anything about the subject-matter of Rule 7 which precludes or suggests the exclusion of appeals upon determinations under that Rule. For example, if an Employment Tribunal made a requirement of a deposit without taking any steps at all to ascertain ability to pay within Rule 7(5), why should the person required to pay be denied the remedy of an appeal? If he could not appeal to the Employment Appeal Tribunal he could not appeal anywhere – see Employment Tribunals Act Section 21(2). It is notable, too, that nothing in the Employment Tribunals Act points to how, if at all, determinations which are not "decisions" in some special sense are to be appealed, or provides that they should be incapable of being appealed, either of those being things that one could reasonably expect of a statute if the word 'decision' in it was intended to exclude some particular classes of Tribunal determinations.[8]So far, then, there is nothing about a Rule 7 deposit requirement that provides that it should be incapable of appeal. However, the Employment Tribunal's order under Rule 7, depending on one's definition of 'interlocutory', would seem not to be a "decision" within the particular terms of Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Regulation 2(2). That, though, of itself would preclude an appeal to the Employment Appeal Tribunal if it were only "decisions" within that Regulation 2(2) special meaning which were permitted to be appealed. There is no such requirement in the Employment Appeal Tribunal Rules . Employment Appeal Tribunal Rule 3(1)(b) contemplates an order as being capable of being the subject matter of an appeal – see 3(1)(b) and 3(1)(c). True it is that Employment Appeal Tribunal Rule 3(2) sets the time during which an appeal may be instituted by reference to the Employment Tribunal's sending out of Extended Reasons, but the Employment Appeal Tribunal Practice Direction paragraph 2(2) has since 1996 contemplated the Employment Appeal Tribunal as having in some cases a discretion to proceed on Summary Reasons only. It is therefore plain that 'appealability' is not necessarily precluded by the absence of Extended Reasons. Especially should that be the case where, as is provided for in Rule 7 of the Employment Tribunal Rules , the Employment Tribunal's own Rules provide for reasons being given only in summary form – see Rule 7(6).[9]In our judgment therefore, firstly, Mr Hussain is entitled to appeal the Order of 8 May made by the Employment Tribunal and able to appeal it to the Employment Appeal Tribunal; secondly, the reasons given by the Employment Tribunal suffice as a specification of the Employment Tribunal's reasons for the purpose of instituting an appeal, and, thirdly, if there were to be any doubt on that second point, we would exercise our discretion under the Employment Appeal Tribunal Practice Direction to treat the reasons given as sufficient to enable the Employment Appeal Tribunal to hear the appeal on Summary Reasons only. So much for the first heading of 'Appealability'.[10]The second heading can be given the label 'Perversity'. Before turning to the decision of the Chairman we ought to say something about the nature of Rule 7 deposit procedure. It takes place before someone who cannot and will not hear the main hearing – see Rule 7(9). The Chairman, Mr Price, cannot therefore take part in the main hearing. His views will not influence the three who ultimately hear the main hearing, and, indeed, it is not improbable that those three will not even know what his view was. At many Tribunals steps are taken to ensure that the full three person panel at the main hearing do not know that a Rule 7 deposit has been required until after they have given their decision on the merits. So Mr Price's decision will not prejudice the final decision. Secondly, Rule 7 is dealt with at an early stage. The evidence is incomplete. Neither side is heard at any length. It is intended to be a robust, inexpensive and simple procedure ahead of the main hearing. A full fact finding exercise with oral evidence is not contemplated at this stage. It would entirely defeat the object of Rule 7 if it became expensive or time consuming. Only a summary form of reason giving is contemplated – see Rule 7(6). It is merely a procedure intended firstly to warn the person required to pay that there is a risk that his case is weak and that therefore he may be throwing good money after bad or may be wasting time in trying to take the case further. Secondly, it offers a modest protection to the other side to the extent of £150 (it has since been changed upwards to £500, but at the time of this case if was £150) so as to provide that there will be a modest fund to that extent for the recovery of any award of costs if an award of costs is made in the future. The procedure may also facilitate the making of an order for costs, but only in the rather special circumstances contemplated in Rule 12(7). Rule 7 does not provide that the person ordered to pay the money cannot take his case further. On the contrary, it is only if he fails to pay what he is required to pay as a deposit that his case cannot be taken further. The sum required to be paid is to be fixed so that it is a sum which, broadly speaking, so far as the Employment Tribunal can tell on the matter then laid before it, is a sum which the payer could reasonably be expected to pay – see Rule 7(5).[11]Against that background the Rule 7 deposit system would, as we have said, be entirely self-defeating if it became expense in time or money. Further, if the facts had fully to be found after a full and balanced enquiry into the evidence and full argument thereon from both sides, one would have a trial before a trial and, rather oddly, the person who conducted the first would not be allowed to be engaged in the second. The Chairman under Rule 7 instead forms what is necessarily only a provisional rather than the final view and his view does not carry forward to affect the full hearing.[12]If a person required to pay a deposit, such as Mr Hussain, wins his case, or even if he loses his case but no order for costs is made against him, then he can get his deposit refunded – see Rule 7(8). Accordingly Mr Hussain need not be as exercised as he is about this Rule 7 stage of his case. One notable thing is that the one complaint that he does not make is that he cannot afford the £150 that was required of him, nor does he complain that it was fixed without regard to his means. We have set these observations about Rule 7 out at some length because it is quite plain from Mr Hussain's written arguments that he somehow feels that he has already had the case decided against him on the merits. That is very much not the case.[13]Looking at the Notice of Appeal itself Mr Hussain says first of all:
"The appellant has no history of drug abuse (no evidence has been provided by respondents)."
The Chairman had said at paragraph 2 of the reasons:
"The applicant has had a history of drug abuse. He had been charged with an offence of causing grievous bodily harm with intent to do grievous bodily harm. At his trial, the jury found him not guilty by reason of insanity. The court did not detain him in a hospital but decided to take the alternative course of making him subject to a supervision and treatment order. This was done because it was considered his insanity was only temporary as it had been brought about by his abuse of steroids. As part of the order for treatment, he had to take anti-psychotic medication. By his own admission, he was not taking the medication."
The Notice of Appeal goes on:
"Crown Court decision has no bearing upon Employment Tribunal proceedings. Not guilty is not guilty due to any reason!! Applicant was taking medication during period in question. Contradictory statements have been provided by Respondent (Addaction). Applicant has medial/other evidence to prove this."
The underlying reasoning of the Chairman is the same even if one leaves out the matters complained of. Mr Hussain had been charged with a serious criminal offence. He was found not guilty by reason of insanity. He was made the object of a supervision and treatment order. The treatment included that he had to take specified medication, whether he was in fact already taking it or not. The Respondents said they had evidence that he had admitted to not taking it. The job on offer was such that he would be required to enter police stations and to meet and discuss matters with persons in custody. The Respondent's evidence was that the police had indicated that given Mr Hussain's position (which included, that as he was still on probation) he would not be allowed into their custody suites. He would therefore not be able to fulfil the basic requirements of the job. Moreover, his claim that he was disabled within the meaning of the Disability Discrimination Act was denied. It is plain, taking those things together, that a Chairman, whilst thoroughly aware that his decision was necessarily provisional and could not be based on the fullest of evidence and might later be shown to be wrong, could reasonably have arrived at the view that Mr Hussain had no reasonable prospect of success in his Employment Tribunal proceedings. The Appellant in his Notice of Appeal adds this:
"The respondent cannot justify less favourable treatment (no real evidence has been provided by either respondent)."
He says that because the Chairman had said:
"In the circumstances and on the assumption that the applicant can show that he is disabled within the meaning of the Disability Discrimination Act and has suffered less favourable treatment by way of his disability, the respondents will have little difficulty in showing that the treatment of the applicant was justified."
But it was not for the Chairman finally to determine the question of justification, nor did he do so. Mr Hussain will be fully able to fight that issue, if it comes up, at the main hearing and will do so without Mr Price's view being of any materiality. The rest of the Notice of Appeal is either immaterial to the question of Rule 7 deposit or is barred as having been an attempt to raise the question of bias which the Preliminary Hearing at the Employment Appeal Tribunal did not allow to go forward.[14]As the decision of the Employment Tribunal is appealable, but is not such that no Tribunal properly instructing itself could arrive at it, we are not disposed to allow this appeal. We bear in mind that remission to the Employment Tribunal, a possibility that could have been required to be considered had more been at stake, is here effectively precluded on the grounds of proportionality. Leaving aside Mr Hussain's costs, it would cost the Respondents a good deal more than the £150 to attempt to preserve the preservation of that degree of protection which the existing order already gives them. The want of proportionality upon a remission has been one of the factors in our dismissing the appeal rather than remitting the matter, but dismiss the appeal is what we do.