(1) EXILE PRODUCTIONS LTD (2) MR G I MORRISON v MRS G L BRADDOCK [2001] UKEAT 1079_01_1809

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1079_01_1809

Case No Appeal No. EAT/1079/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) EXILE PRODUCTIONS LTD (2) MR G I MORRISONAPPELLANT

MRS G L BRADDOCKRESPONDENT

Before

Mr Recorder Underhill

Date 18 September 2001

[1]APPEARANCES For the Appellant MR A HOGARTH (of Counsel) Instructed by: Messrs Clintons Solicitors 55 Drury Lane London WC2B 5RZ For the Respondent No appearance or representation by or on behalf of the Respondent MR RECORDER UNDERHILL QC This appeal relates to the listing by the Employment Tribunal in Cardiff of an application by the Appellant for the making of a Restricted Reporting Order pursuant to Rule 16 of the Employment Tribunals Rules of Procedure 2001. The Appellant has been represented by Mr Hogarth of Counsel. The Respondent here, i.e. the Applicant in the Tribunal (to whom we will refer as 'Mrs Braddock', to avoid that confusion) did not appear, but her solicitors have put in written representations. The matter came before us at short notice and we have not reserved judgment.

[2]The relevant background is as follows. The Appellant is a well-known rock musician. The Respondent is also a musician who worked with the Appellant for part of last year and this year. On 11 June 2001, she began proceedings in the Employment Tribunal for what were described as "breach of contract and 'direct sex discrimination'". The only Respondent to the Originating Application was Exile Productions Limited, a company owned and controlled by the Appellant by which Mrs Braddock claimed to have been employed; but the Appellant was joined as an additional Respondent on 9 August.

[3]The claim for sex discrimination in the IT1 alleges what might in general terms be described as sexual harassment, though the details are not very clearly set out. The Originating Application is very short, but it is amplified to some extent in Further and Better Particulars served on 8 August. The detailed allegations appearing in those Particulars do not matter for the purpose of this appeal, save that they include allegations of conduct which might be said to constitute sexual misconduct within the meaning of Rule 16(1).

[4]By amended Grounds of Resistance dated 13 July 2001, Exile Productions, which was then the only Respondent, made a general denial of the allegations pending further particularisation; but it raised a number of potential preliminary points, including an allegation that the application was an abuse of process, at least partly because it was brought for ulterior reasons. It appears, though we have not seen the correspondence, that the Tribunal agreed in principle to a preliminary hearing at which either the preliminary issues raised by the Respondents will be decided or in any event directions will be made in relation to them.

[5]On 4 September 2001 the Appellant's solicitors wrote to the Regional Office of the Employment Tribunals in Cardiff, giving notice of an application for a Restricted Reporting Order. The letter states:

"In brief, the basis of the Application will be that such an order ought to be made, if the case is not struck out by the Tribunal, having regard, inter alia, to the inconsistencies between the allegations made by the Applicant in these proceedings and those seemingly made by the Applicant to journalists from the Mail on Sunday and the Mirror, which are repeated in two articles, copies of which we attach for the Tribunal's consideration. We would accordingly ask the Tribunal to list this Application formally for the same hearing as that at which the preliminary issues will be defined."

The Tribunal replied on the following day, as follows:

"The application for reporting restrictions should be put to the Tribunal at the hearing."

We interpose that that is plainly a reference to the proposed preliminary hearing. "Your unavailable dates have been noted. We are currently listing for March 2002 but will make every endeavour to list your case as soon as possible if there is a cancellation before 1 December."

[6]On the same day, the Appellant's solicitors wrote again to the Tribunal saying that the Appellant had been contacted by a journalist who claimed to have been told by Mrs Braddock's solicitors that proceedings for sexual harassment against the Appellant were pending in the Tribunal. The letter continued:

"For reasons which will, we hope, be self evident to the Chairman, we fear that if the Applicant's allegations (which are wholeheartedly denied by the Respondents) are permitted to be published, the Respondents will suffer very real damage to their respective professional and personal reputations, even if the Applicants' allegations are ultimately dismissed. For that reason, whilst we hesitate to trouble the Chairman unnecessarily, we would ask that this letter be put before the Chairman as soon as is practicably possible with a request that either he make a restricted reporting order immediately; or that he lists our application for the earliest possible hearing and makes an interim restricted reporting order pending that hearing in the meantime."

We would observe in passing that, as Mr Hogarth accepts, the request for an immediate "interim order" was misconceived. Rule 16(4) provides that:

"The Tribunal shall not make a Restricted Reporting Order unless it has given each party an opportunity to advance oral argument at a hearing if they so wish."

The effect of that rule is that there will inevitably be some interval, though it may be short, between the making of the application and the making of any Order.

[7]We have been informed in a letter from the Regional Secretary dated 13 September 2001 (a copy of which has been passed to the Appellant) that the Tribunal did in fact have a slot available on 7 September 2001 but that it proved impossible to get agreement (which in context must we think mean Mrs Braddock's agreement) to a hearing at such short notice. The Appellant's solicitors were so notified by a letter faxed to them on 6 September 2001 which was in the following terms:

"The Regional Chairman has asked me to tell you that efforts have been made to enable you to make your application on Friday, but there has been insufficient response from the parties. He does not propose to continue with these arrangements. There is a strong argument that it is implicit in Rule 14(1) that the order should only be made by the panel appointed to hear the case. At this stage, it is not known who will hear it. Moreover that panel could undo any such order by virtue of Rule 16(6). Any self respecting panel would consider that it should make its own decision on the point. Since the prohibition is on reporting the proceedings, it would not cover the matters which concern you."

In his letter of 13 September, the Regional Secretary describes this letter as "drawing to [the parties'] attention some relevant considerations" but says that it was not intended to be a "decision".

[8]The Appellant's solicitors replied on the following day with a long letter seeking clarification of the Tribunal's position and urging reconsideration. The gist is as follows:

"We believe the correct course now would be for the Tribunal to make immediate contact with Messrs Sinclairs, [that is the Applicant's solicitors] to seek immediate confirmation as to whether the Applicant wishes to have an opportunity to advance oral argument at a hearing as to the making of such an order. If Messrs Sinclairs decline to respond to that request, or respond in the negative, the Tribunal is free to make an order and in our view should, in all the circumstances, make such an order. If Messrs Sinclairs confirm that they wish to have an opportunity to advance oral argument, then we would ask the Tribunal again to list our application in this regard for the earliest available appointment."

The Regional Secretary replied on 10 September 2001. The gist of his response was as follows:

"It was not possible to secure the agreement of the parties to attend at short notice, and without such agreement it would be wholly improper to do as you suggest. If you wish to pursue the application it will be necessary to list in the usual way giving proper notice."

The Appellant's solicitors replied on the same day, repeating the request that the Tribunal should list the application as a matter of urgency and for the earliest possible date.

[9]On 11 September 2001 the Appellant's solicitors were informed that the application would be heard on 1 October. The Appellant regards that date as too distant.

[10]That is where matters rest in the Tribunal. This appeal was lodged on 12 September 2001. Both of the Respondents in the Tribunal proceedings were initially parties to the appeal, but Mr Hogarth has informed us this morning that the appeal by Exile Productions Limited is withdrawn, in the light of the decision of this Tribunal in Leicester University v A

[1999] ICR 701

[11]The Notice of Appeal identifies the decision appealed against in the following terms:

" The Appellant appeals against the interlocutory decisions of the Cardiff Employment Tribunal communicated to the parties in letters from the tribunal of the 5 th , 6 th and 10 th of September 2001 not to list for hearing the application of the Appellants for a Restricted Reporting Order made under Rule 16 of the Employment Tribunals Rules of Procedure Regulations before the 1 st October 2001, his conclusion that 14 clear days notice of such a hearing was required, his conclusion that the order was restricted to the evidence given at the hearing of the tribunal and his conclusion that the application could only be made to the Employment Tribunal before whom the hearing of the originating application was listed. Copies of the relevant correspondence are enclosed"

[12]The grounds for contending that the Chairman's various "decisions", as so defined, were wrong in law are as follows:

"A The learned Chairman erred in concluding that 14 clear days notice was required before an application could be made."

We can see nothing in the correspondence to suggest that the Chairman came to any such conclusion. An affidavit has been put before us this morning from the partner in the Appellant's solicitors dealing with the matter, in which he says that the Tribunal staff with whom he dealt referred to a fourteen day requirement. In his letter of 13 September the Regional Secretary states that no Regional Chairman made any such decision. It seems plain to us that there is no requirement for fourteen days notice, and that if, as appears to have been the case, such a requirement was indeed referred to by the Tribunal staff, that was a mistake. However that mistake does not appear to have entered into the reasoning of the Chairman. "B The learned Chairman erred in concluding that a restricted reporting order would apply only to the evidence given at a hearing ….but did not extend to the making of, or content of the Originating Application." That appears to be a reference to the final sentence of the Tribunal's letter of 6 September, which we have set out above. For the reasons given below we need express no view on whether the Tribunal's statement is entirely accurate. "C The learned Regional Chairman erred in concluding that an application could only be made to the Tribunal charged with the hearing of an originating application." That is a reference to the observation in the same letter, that "there is a strong argument" that the Order should only be made by the Tribunal hearing the application. Again, we need not comment on the argument.

[13]The Order which the Appellants seek is defined as:

"A Restricted Reporting Order preventing the identification of the 2 nd respondent as the person responsible for the sexual misconduct alleged in the Applicant's Originating Application and that the order also should apply to the 1 st respondent and the Applicant as the employer of the Applicant and the victim of such sexual misconduct for the purpose of preventing the identification of the 2 nd Respondent."

The notice also seeks a Restricted Reporting Order in relation to this appeal; but that application has not been pursued by Mr Hogarth.

[14]It seems clear to us that the only potentially appealable decision which the Employment Tribunal has made is a decision as regards the listing of the Appellant's application. The various other matters identified in the Notice of Appeal do not appear to us to be decisions in the relevant sense; they are (at most) reasons relied on by the Chairman in reaching the decision which he did.

[15]In those circumstances the issue is whether the decision not to list this case any earlier than 1 October was wrong in law. Prima facie the result of a successful appeal against such an Order would not , as sought by the Appellant, be that this Tribunal would make the substantive Order sought below but that we would direct an earlier listing before the Employment Tribunal. Mr Hogarth argues that that is not necessarily the only outcome: we consider that submission at paragraphs 20 ff below.

[16]We have been referred to no authority as to the principles on which this Tribunal should act on an appeal from a decision of a Regional Chairman as to a listing question. We are prepared to accept that jurisdiction to review such a decision on appeal exists: there will in principle be cases, though they will be few, where a 'wrong' decision as to listing may have such a fundamental impact on whether justice can be done that it can be said to constitute an error of law. But it seems to us that it can only be in the plainest cases that it would be right for this Tribunal to intervene. We are not in a position to assess all the various factors, administrative as well as judicial, that affect how and when a particular case can be listed before the Employment Tribunal. The present case is a case in point. The Regional Secretary, in his letter of 13 September says this:

"By notice sent on 11 September that application was listed for hearing on 1 October. That is the first date that we can offer. All of the part-time chairmen in this region have reached their maximum number of sitting days and are not allowed to sit. There are six full-time chairmen in the entire region, one is ill, one is on leave; and one has acute family problems. In the period in question there are other commitments which cannot be altered."

[17]In these circumstances we regard any elaborate debate about whether the opinions expressed by the Regional Chairman in his letters are correct as largely beside the point. Whether or not they contributed to his decision not to offer a date between 7 September and 1 October, which is unclear, the plain fact is that no date appears to be available. Conceivably, if we were satisfied that an overwhelming injustice would otherwise occur, it would be open to us to direct the Regional Chairman to list the case at some earlier date than 1 October, even at the cost of breaking commitments to other litigants; but we are quite satisfied that this is not such a case. The application will be heard, in any event, in under a fortnight. The fact that the Respondent is bringing proceedings for sexual harassment against the Appellant is, it appears, already known to the press. Mr Hogarth says that it is possible, indeed likely, that in the intervening period a newspaper may get hold of and publish the allegations in the Further and Better Particulars, which is the only existing document which makes any explicit, or (arguably) damaging allegations of sexual misconduct. That risk seems to us to be very small. The Further and Better Particulars have not been published or come into the hands of the press to date. Mrs Braddock's solicitors have stated in their written submissions to us today that neither she nor (it can be inferred) they wish to discuss the litigation with the press. We should be very surprised if either they or their client volunteered a copy of Further and Better Particulars to any third party; quite apart from anything else, to do so would certainly make very real difficulties for them in relation to the Appellant's contention that these proceedings are an abuse of the process. In any event, a newspaper is in our judgment unlikely to publish an allegation based on the Further and Better Particulars, which are not on the public record. If there is a real risk of damage to the Appellant's reputation, that will occur primarily when and if the parties come to give evidence at the substantive hearing.

[18]Those factors are sufficient for our decision. It would be possible for us to proceed and to consider further the seriousness of any damage which might ensue from publication of the matters in the Further and Better Particulars; but we do not feel it necessary to do so in order to reach a view, and we prefer to say nothing about this aspect in order not to prejudice the decision of the Tribunal when it comes to consider the application of 1 October.

[19]We do not, in sum, regard this case as so exceptional as to require this Tribunal to order the Employment Tribunal to overturn its existing listing arrangements in order to accommodate the application prior to 1 October.

[20]Mr Hogarth, however, argues that that is not the end of the matter. He submits that if we are not prepared to order the Tribunal to list this application before 1 October we should hear and determine the substantive application ourselves. He submits that we have jurisdiction to do so under Section 35(1)(a) of the Employment Tribunals Act 1996 which is in the following terms:

"(1) For the purpose of disposing of an appeal, the Appeal Tribunal may - (a) exercise any of the powers of the body or officer from whom the appeal was brought"

[21]The point merits fuller argument than we have been able to hear. Our provisional view is, however, that we have no such jurisdiction. The only appeal before us is as to a listing decision; and it must be doubtful whether for the Appeal Tribunal to decide the substantive issue on the application whose listing has given rise to the appeal could be said to be "for the purpose of disposing of the appeal". If Mr Hogarth's submission were correct, it would be tantamount to our assuming an original jurisdiction simply because the Tribunal was not able to exercise the jurisdiction which primarily belongs to it sufficiently expeditiously.

[22]However, we do not base our decision on our view as to jurisdiction alone. Even if there were such a jurisdiction, it is plainly one which would have to be exercised extremely cautiously so as to avoid this Tribunal being used as a back door for determining issues which truly belong in the Employment Tribunal. For the reasons which we have already given, we do not regard this case as so highly exceptional that this jurisdiction, even if it were to exist, should be exercised on this occasion.

[23]It follows that we dismiss this appeal. We wish to emphasise that we have not found it necessary to consider, and express no view either way, on the strength or weakness of the Appellant's case for a Restricted Reporting Order in the Employment Tribunal. That must be a matter for the Tribunal at the forthcoming hearing.