MAYOR & BURGESSES OF THE LONDON BOROUGH OF HARINGEY v MR E AKPAN [2001] UKEAT 0974_00_3010

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0974_00_3010

Case No Appeal No. EAT/0974/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MAYOR & BURGESSES OF THE LONDON BOROUGH OF HARINGEYAPPELLANT

MR E AKPANRESPONDENT

Before

Mr Justice Lindsay

Date 30 October 2001

[1]APPEARANCES For the Appellant JOHN CAVANAGH QC Haringey Council Corporate Services Legal Service Alexandra House 10 Station road Wood Green London N22 7TR For the Respondent IJEOMA OMAMBALA Messrs Pothecary & Barrett Talbot House Talbot Court Gracechurch Street London EC3V 0BS THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us the Full Hearing of the appeal of the London Borough of Haringey in the matter Mayor & Burgesses of the London Borough of Haringey v Mr E Akpan . The London Borough, which we will call the 'Council', appeals against a decision at London North of 4 May 2000. Whilst the Notice of Appeal (or, strictly, the Amended Notice of Appeal) ranges over many grounds the parties are content that we should rule first upon a procedural ground and move on to the others only should that prove appropriate. Today the Council has appeared by Mr Cavanagh QC, who did not appear below. Mr Akpan has appeared by Miss Omambala who did appear below.

[2]The chronology begins with Mr Akpan presenting an IT1 on 11 December 1998. He claimed racial discrimination including victimisation. On 25 January 1999 the Council put in comprehensive grounds of resistance. There was a hearing at London North spread over a long period with intervals; thus there was a hearing between 10 and 13 August 1999, then between 11 and 13 January 2000, then 21 and 22 February 2000, and further, if one judges only from the front page of the written decision itself, something occurred on 23 March 2000. There seems to have been over 7 days of evidence. On 4 May 2000 the decision with Extended Reasons were sent to the parties. It was the decision of a panel of three under the Chairmanship of Mr Flint. The decision was:

"The unanimous decision of the Tribunal is that the Applicant has suffered discrimination on the grounds of his race and should receive compensation. The parties have liberty to apply for a hearing on compensation if they cannot agree this among themselves."

A Notice of Appeal was received by the Employment Appeal Tribunal from the Council on or about 14 June 2000 and it was amended with leave on 19 January 2001.

[3]The first ground of the Amended Notice of Appeal alleges that the Employment Tribunal to a material degree departed from proper practice and the rules of natural justice in relation to the procedure it adopted as to written submissions at the end of the case. That is the only ground on which we have so far heard the parties and the one on which the parties are content that we should rule before going on to the others.

[4]It is, unfortunately, not unusual for Employment Tribunals to find that evidence has taken so long that written final submissions are the more attractive option open; the alternative is often only a long adjournment until yet another day could be found. This was such a case. The Employment Appeal Tribunal has given guidance as to such situations in the case The London Borough of Barking and Dagenham v Oguoko

[2000] IRLR 179

. It would be convenient, and it is a fair summary of the guidance which the case gives, to set out the head note (the heavy print part) of that decision as reported in the IRLR. It says this:

"The EAT held: The employment tribunal's failure to cross-serve the parties' written closing submissions so that neither party had the opportunity to comment before the tribunal met to consider its decision amounted to a breach of the rules of natural justice. The procedure of asking parties to submit their closing submissions in writing after the tribunal hearing should be implemented only with the consent of the parties. Once such consent has been secured, the tribunal chairman must take the responsibility of ensuring that the procedure is implemented in accordance with the rules of natural justice. This will require that, upon receipt of both sets of submissions, the tribunal will serve each party with the written submission of the other. Each party should be informed that if they have any appropriate comments to make on the submission of their opponent, they should send those comments to the tribunal within, say, 14 days. They should be warned that if, within that time, no comment is received by the tribunal, it will be assumed that they have no comment to make and the tribunal will proceed to make its decision on the basis of the submissions already tendered. Appropriate comments in reply should be limited, as would be the case had oral submissions been made, to correction of factual errors and legal submission on a new point of law not previously raised. The tribunal should not proceed to the decision-making stage until the chairman is satisfied that each of the above steps has been taken. "

There is a further passage in the head note that relates to the particular facts of that case and the consideration of a review having been sought in that case.

[5]It is very easy to be too prescriptive on procedural matters but we accept those guidelines given in the Oguoko case as valuable, and, if we may respectfully say so, sensible and such as ought to be followed unless a good ground is made out for departure from them. It does not, though, follow that any departure is sufficient to amount to so material an error of law that the decision arrived at should be overturned. Considerations of fact and degree necessarily come into play.

[6]With that look at the law, we turn to the facts of the case. The Tribunal rose on 22 February 2000 after some seven days or so of evidence. Final submissions had not been begun by either side. It would seem to have been unopposed that there should written final submissions. It was therefore for the Employment Tribunal, the parties having found written final submissions to be acceptable, to prescribe, if only in general terms, what was to be done. Ms Omambala's skeleton says that the Chairman directed both sides to send final submissions to the Employment Tribunal by 14 March, but that seems improbable, as there is a letter of 8 March from the Employment Tribunal to her solicitors, copied also to the Council's solicitors, and it says:

"The Chairman of the Tribunals has granted the extension but as the meeting in chambers is on 14 March 2000 we must have the submissions by Monday 13 th at the latest."

It is agreed between counsel here today that the Chairman had not, at the oral hearing before the Employment Tribunal, directed either side to send any form of written submissions to the other, nor, indeed, that he made any provision for subsequent comment by one party on the written submissions of the other. A traditional sequential system was not specified but was in effect ruled out by the Chairman as both sides, it would seem, were expected to submit their written submissions by one and the same date, namely an original date then extended to 13 March. We have later received comments from the Chairman himself as to his understanding of what was done and what was not done.

[7]On 7 March the Employment Tribunal received the submissions that had been prepared by the Council. The Council, in other words, had complied in good time with the deadline of 13 March. On 9 March the Council's solicitors wrote to the Employment Tribunal as follows:

"I refer to your letter to the Applicant dated 8 March 2000. This letter allows an extension for written submissions until 13 March 2000. [That is a quotation from the letter we have just cited from.] I am concerned that this extension will not allow the Applicant's submissions to be forwarded to the Respondent in time for us to make comments regarding these submissions. I draw your attention to the case of London Borough of Barking and Dagenham v Ogwoko [2000] IRLR 179 . The EAT in this case held that the failure to allow each party the opportunity to comment on the other parties written submissions amounts to a breach of the rules of natural justice. I request that this letter is put before the Chairman to resolve the best way of remedying this difficulty."

At this stage the Employment Tribunal had not got Mr Akpan's written submissions, nor had the Employment Tribunal, but the Council did not know that the Employment Tribunal had not received them. On 13 March the Employment Tribunal wrote to the Council as follows:

"As dates for chambers meetings are difficult to arrange the Chairman proposes that the Tribunal will meet tomorrow. It will arrive at provisional conclusions but will not promulgate any decision until the parties have had an opportunity to comment on their opponent's submissions and the Tribunal has considered the comments."

Pausing there, that suggests that the Tribunal will meet on 14 March, whereas the front page of the decision has no meeting of 14 March but one, as I mentioned earlier, on 23 March, which is a curiosity which has not been explained. "Provisional conclusions" (to take up the expression used in that letter) can vary greatly between, at one end of the spectrum, someone saying "Well, at this stage I think I'm for the Applicant" to a typed draft judgment complete on all points but still, for all that, called a 'draft'. The former could hardly be complained of; the latter might be if prepared before submissions had been completed.

[8]On 13 March Mr Akpan's solicitors sent in their written submissions to the Employment Tribunal. On 16 March the Employment Tribunal wrote to both sides as follows:

"The Tribunal has come to provisional conclusions, which the Chairman will now formulate into a draft decision. This process in a case with some 700 documents means the productions of a rough draft and further correction of that against the documents and statements is likely to take about 3 weeks. Any observations by the parties on their opponents closing submissions should be with the Tribunal no later than the 6 th April. Any such observations will be considered by the Tribunal before the draft is agreed."

So, the Chairman was proposing a 6 April deadline, although the Council had not yet got Mr Akpan's written final submissions. It looks as if the Tribunal had contemplated that the parties would themselves have already exchanged their written final submissions between themselves, but there is no good reason why the Tribunal should have assumed that that would be the case in the absence of any directions that they should do so and any notification that they had or were intending to do so.

[9]23 March, as we mentioned, is the last date recorded by the Tribunal as the date on which the 3 members met to attend to this case but, as we have also mentioned, there is some reason to believe that that date was truly 14 March. No one has been able to explain the reference to 23 March. At all events by 23 March, Mr Akpan's solicitors had not received the Council's submissions and they wrote to the Tribunal on 23 March saying:

"We were under the impression that both parties were to receive copies of the other party's written submissions. We have yet to receive the Respondent's written submissions and we should appreciate it if you would kindly send these to us as soon as possible. By 24 March the Council had not received Mr Akpan's submissions and the Council's officers telephoned the Employment Tribunal saying inter alia : "

We have yet to receive a copy of the Applicant's written submissions for comment." Mr Akpan's solicitors wrote again to the Employment Tribunal and on 29 March the Employment Tribunal sent a copy of the Council's submissions to Mr Akpan's solicitors. The Employment Tribunal in its letter to Mr Akpan's solicitors, copied to the Council, said:

"In reply to your letter of 28 March 2000 the Chairman understood that the question of submissions was being dealt with between counsel. A copy of the Respondents' submissions is enclosed. The decision will not be promulgated until any replies to submissions have been received and considered by the Tribunal."

We repeat that counsel before us today are quite clear that nothing had been said at the Employment Tribunal that could have supported a belief in the Chairman that submissions were being exchanged between counsel. The position then was that the Council still had not got the Akpan side's submissions. It is to be noted, too, that the Employment Tribunal did not say that the decision would not be written until replies had been considered but that it would not till then be promulgated.

[10]By or on 3 April, the Tribunal had received from Mr Akpan's solicitors his observations upon the Council's submissions. On the same day, 3 April, the Council telephoned the Employment Tribunal, spoke there to a female member of the staff, and the attendance note made by the Council's solicitors said:

"She said she had spoken to Mr Flint and he had said that we should get copy of other sides w-submissions from other side. Pointed out that neither 13.3 or 16.3 letters from ET suggested this and pointed out that unless ET sent copies to parties or ordered them to provide copies to each other – difficulties would ensue."

On 5 April the Tribunal was spoken to again by the Council's solicitors; again the same woman officer at the Employment Tribunal was spoken to and the attendance note says:

"She apologies for not getting back to me. She advised that I write a letter requesting w-submissions of Applicant."

On the same day, 5 April, the Council faxed the Employment Tribunal as follows:

"We write following correspondence, telephone calls and faxes, to formally request that a copy of the Applicant's written submissions in the above case be supplied to us so that we may have the opportunity to make any comments on it that we feel are appropriate. We would also appreciate it if the Chairman could indicate a new date by when such comments should be supplied to the Tribunal."

On 5 April the Council still had not seen Mr Akpan's written submissions which were eventually sent to the Council by the Employment Tribunal on 11 April, along with Mr Akpan's comments on the Council's written submissions. It will be remembered that the Employment Tribunal had said that the deadline for submissions was 6 April, five days before the Employment Tribunal had even sent Mr Akpan's submissions to the Council. The Council received the papers from the Employment Tribunal on 13 April. On that same day the Extended Reasons, already written by the Chairman, were sent by the Chairman to the lay members, who later made only minor amendments and corrections. The lay members were also sent, as it would seem, the written final submissions of both sides and Mr Akpan's final comments. They could not see the Council's final comments as none existed. It is not said by the Chairman that the lay members were given any guidance on a lawyer's proper reaction to the written submissions or to Mr Akpan's comments on the Council's written submissions or as to the procedure being followed, which was one in which a written form of decision was being arrived at before the receipt of comments from both sides equally.

[11]On 18 April the Council wrote to the Employment Tribunal as follows:

"Thank you for your letter of 11 April 2000 enclosing the Applicant's written closing submissions for our comments. As your letter did not suggest any time by which our comments have to be supplied, we would suggest that we are allowed 14 days from receipt i.e. from 17 April 2000. We will try to supply our comments to you earlier than this. Your letter also enclosed the Applicant's comments on our written closing submissions. Does this mean that the Applicants will have a further opportunity to comment on our comments on their written closing submissions?"

On 27 April - and note the length of the interval - the Employment Tribunal replied to the Council:

"In reply to your letter of 18 April 2000 the presentation of submissions has followed the course which would be taken with oral submissions. The matter was dealt with between Counsel neither of whom has submitted anything further and the Chairman considers it unnecessary for there to be any further submissions."

The Council had asked for time and had got that somewhat dusty answer. On 28 April the Council telephoned the Employment Tribunal and were told to write to the Chairman. The Council then wrote the very same day; they wrote:

"You informed us in our telephone conversation today, that this letter was dictated by the Chairman of the Tribunal who heard the case. [That is a reference to a letter of 27 April] We would refer you to the letters from the Tribunal dated 13 and 16 March and subsequent correspondence and faxes. In the circumstances we would request your urgent clarification as to whether our comments on the other side's written submissions should still now be submitted. To avoid any doubt on the matter, we confirm that there are matters of evidence referred to by the Applicant in his written submissions that we would have liked an opportunity to comment on and in many cases to correct. We reserve our right, depending on the Tribunal's decision in these proceedings, to take issue with the fairness of the procedure adopted by the Tribunal."

Before any answer was made by the Employment Tribunal the Employment Tribunal promulgated its decision on 4 May. On 9 May the Employment Tribunal wrote inter alia :

"The Chairman (Mr Flint) declines to go further into the question of submissions as he is satisfied that all parties had an opportunity to comment."

[12]So, the Employment Tribunal had from Mr Akpan his written submissions and his comments on the Council's submissions and the Employment Tribunal had from the Council its written submissions but the Employment Tribunal had embarked on and concluded a timetable such that it never received the Council's comments on Mr Akpan's submissions. The Employment Tribunal seems to have done so on the basis that the course that it had deployed followed the course which would have been followed had oral submissions been made. That seems to us quite wrong. Oral submissions are, of course, sequential. One does not have both sides on their feet at the same time. Each knows what the other is saying as it is said. There is not only a formal sequence (usually defendant in answer, plaintiff in reply) but, depending sometimes on where the onus lies, that can be reversed and in this particular case in the Employment Tribunal it was contemplated that it would be reversed. That formal sequence also is capable of being supplemented by a more informal, ability on each side to intervene or add minor corrections and references, in particular in relation to new points emerging for the first time.

[13]Once the Employment Tribunal here had to recognise that the parties had not been required and were not expecting to exchange between themselves but were looking to receive papers direct from the Employment Tribunal, it should either have directed exchange between the parties or have enabled adequate comment to be made by each side on the observations or written submissions of the other. On the facts here the Employment Tribunal should have recognised that the parties were not themselves exchanging and should have recognised that by 29 March or 5 April at the very latest.

[14]The Employment Tribunal could properly write a decision having allowed Mr Akpan to comment on the Council's submissions but not receiving the Council's comments on Mr Akpan's submissions only if there had been real fault or material delay on the Council's part. The only fault on the Council's part, if it was a fault, was exactly the same fault that was capable of being laid at Mr Akpan's door, namely that it had not had the good sense to exchange submissions independently of the Employment Tribunal. In our view the Council did not delay in any blameworthy way.

[15]Mr Cavanagh naturally relies on the Oguoko case to which we have referred. There the defects in the system adopted by the Employment Tribunal were held by the Employment Appeal Tribunal to have been saved by the seeking of a review which was in fact refused. It is not, in our view, an authority for the proposition that a party who has not sought a review on any such grounds as are here advanced cannot appeal on such grounds. It is a decision that emphasises that it is for the Chairman to prescribe what is to be done and then to see that it is done. If it was wrong, as it was in Oguoko , to receive neither sides comments, it can only be worse to receive the comments of only one side where the side that is excluded has not delayed and is not at any real fault. It is to be remembered, too, that the last time the Tribunal met to consider the case together was recorded as 23 March, but was possibly 14 March.

[16]We mentioned earlier that the Chairman was asked to comment. In his letter dated 19 July 2000 he says this:

"The Chairman wishes to point out that the sequence of submissions in the case ought to have been and would have been had the submissions been given orally submissions on behalf of the Respondent followed by submissions on behalf the Applicant followed by a right of reply on behalf of the Respondent. All of this seems to have occurred. This matter was pointed out to the Solicitor for the Respondents in a letter dated 27 April. The letter also pointed out that the matter had been dealt with between counsel, neither of whom had submitted any further submissions. The draft decision with the submissions which had been received after the chambers meeting on 14 March was sent to the members for comment on 13 April and the drafts were returned shortly afterwards with some minor corrections. The decision was signed by the Chairman on 3 May and sent for promulgation which it appears from the decision took place on 4 May. The Chairman's final comments are that no decision was promulgated until the Chairman and the members of the Tribunal had seen all the written submissions which the parties were entitled to present namely submissions by the Respondents, submissions by the Applicant and a reply by the Respondent."

But the Council had had no practicable ability to reply. It received Mr Akpan's final written submissions on 13 April. The Employment Tribunal had given a deadline of 6 April and the Chairman, on the very day that the Council received Mr Akpan's submissions and written comments, communicated the Extended Reasons to the lay members. There were no comments from the Council on Mr Akpan's final comments.

[17]The Chairman, to judge from his letter, seems to have misunderstood the position. Indeed, Ms Omambala accepts that the reference by the Chairman to 'All of this seems to have occurred' and, at the very end of the citation, that there had been a reply by the Respondent, was nonsense. If the system had been as the Chairman understood it had been, there might well have been no error. As it was, adopting Oguoko, we hold that there was here a material breach of natural justice. We do not regard as fair a criticism by Ms Omambala that the Council sat on its hands and awaited the decision instead of setting about seeking a review. One cannot have a review before the decision. The Council had not waited to see which way the wind blew, rather the position seemed to us to be that it could not claim to have been prejudiced by not having its final comments considered if it turned out that the case was decided in its favour. We do accept Ms Omambala's argument that Oguoko sets only guidelines and that failure to follow them is not necessarily sufficient to lead to the overturning of whatever decision is the issue. As we mentioned, fact and degree become matters fairly to be considered. We do not accept that here the departure from good practice and from the requirements of natural justice were insubstantial. The decision was written with the benefit of written submissions from both sides but with final comments on those submissions by only one side. Yet there was no fault or material delay on the part of the side that had thus been shut out from comment. It is not as if there were no serious points available to the Council, had they been enabled to comment. Mr Cavanagh has referred to a number which cannot be lightly dismissed.

[18]The defect so far described is in our view alone sufficient to justify us in allowing the appeal and setting aside the whole decision. That is unfortunate but we see no alternative to it. Had we been able to look further into the dealings at the Employment Tribunal it might have appeared, as was touched on in argument, that there were further departures from good practice and the requirements of natural justice relative to the way in which the Chairman and lay members dealt with the matter in terms of what advice was given to the lay members by way of guidance on such points of law as emerged from written submissions. As it is we do not go further into that as we have not truly got sufficient information, and in any event, as we have mentioned, the ground already described is sufficient in our view to lead to the matter being overturned.

[19]The matter therefore needs to be remitted. Inescapably it can only be remitted to a different Tribunal than before because we understand that Mr Flint has retired, but, in any event, both sides would have good reason here for a total lack of confidence in the Employment Tribunal that ruled upon this case. Accordingly, we allow the appeal on this ground. We set aside the whole of the decision and we remit to a different Employment Tribunal than before. In the event it follows that we do not need to consider the rest of the Amended Notice of Appeal.