MR O F AYOVUARE v THE LONDON BOROUGH OF GREENWICH [2001] UKEAT 206_00_1901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 206_00_1901Case No Appeal No. EAT/206/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O F AYOVUAREAPPELLANTTHE LONDON BOROUGH OF GREENWICHRESPONDENT
Before
Mr Justice Charles Mr K EdmondsonDate 19 January 2001
[1]APPEARANCES For the Appellant MR V ONUEGBO (Solicitor) For the Respondent MR P OLDHAM (of Counsel) Head of Legal Services London Borough Of Greenwich 29/37 Wellington Street London SE18 6PW MR JUSTICE CHARLES : This case has a somewhat lengthy procedural history. I will try and set it out as a brief background to the first point that we have to determine on the appeals that are before us.[2]The Applicant in the proceedings before the Employment Tribunal had taken earlier proceedings before the Tribunal in which he was successful. In the decision with which we are concerned those proceedings were referred to as "the Gleeson Tribunal". They were followed by two applications to an Employment Tribunal. Those applications were heard by an Employment Tribunal sitting at London (South). The hearing lasted 12 days before the Employment Tribunal and then two further days in Chambers, the further days in Chambers being 19 May (very shortly after the last hearing date) and 7 September 1999. The Employment Tribunal's Extended Reasons were sent to the parties shortly after 7 September on 24 September 1999.[3]At the beginning, as is common form in Extended Reasons under the heading "Decision", the following appears:
"The unanimous decision of the Tribunal is that: (i) The Applicant was discriminated against on racial grounds. (ii) the Applicant was victimised contrary to section 2 of the Race Relations Act 1976; (iii) the Applicant was unfairly dismissed; (iv) the Applicant contributed to his dismissal to the extent of 40%; (v) a hearing to determine remedy will take place at 10.00 am on 8 October 1999 unless the parties inform the Tribunal that they have reached agreement."
We are presently concerned with Decision (i) and a Certificate of Correction relating to it which the Applicant challenges.[4]The next stage was that the Respondents appealed and one of the grounds of the appeal was that the first finding set under that Decision (Decision (i)), namely "The Applicant was discriminated against on racial grounds" was not supported by the Extended Reasons.[5]Next the parties attended before the Employment Tribunal with the same constitution on 8 October 1999 to decide remedy. On that occasion it is common ground before us that the issue was raised as to whether or not the decision in (i) relating to racial discrimination was an error.[6]As to that point raised on that hearing we have before us a Statement from the Chairman in which he sets out his recollection. In that he says this:
"(1) The corrected decision entered in the Register on 4 November 1999 [this is, of course, a comment some time after that]. The members and I are surprised that any issue has arisen in relation to this matter. The parties will recall the Tribunal's reaction when Mr Cadoo pointed out at the Remedies Hearing that there appeared to be an error in item (i) in the Tribunal's decision promulgated on 24 September. The Chairman explained to both sides that this was clearly a mistake arising from an accidental omission of the word 'not'. It was clear from the Extended Reasons that the Tribunal rejected the claim of direct discrimination."
He then goes on at the end to say that it was accepted by both sides that there should be a Certificate of Correction under Rule 10 (9). There are comments from the other members of the Tribunal which are supportive of the Chairman's comments. In the papers no challenge was made as to them.[7]During the course of the hearing before us today it became apparent that the Applicant and the Applicant's representative, who were both present in October, did not have a precisely similar recollection to that of the Chairman. We gave them the opportunity to consider in particular whether or not they were challenging the truth of what the Chairman was saying. Helpfully they did so. After their return to Court before the representative of the Applicant who is a Solicitor pointed out his duty to the Court in that capacity. He told us in round terms (nowhere do I use his exact words) that his recollection was that it was Mr Cadoo who raised the point. He is therefore at one with the Chairman as to that. He then said that it is common ground the point was raised. However his recollection is then of the Chairman simply saying "Oh well, we will deal with that matter in Chambers". It seems to us that it follows from that that the only difference between the parties is one of recollection as to how the point was dealt with after it was raised.[8]As to that, we have clear evidence from the members of the Tribunal that their common view was that Decision (i) did not reflect the decision they had actually made and therefore it contained an error in the sense, not that they thought they had got it wrong but simply that the document did not reflect the conclusion that they had reached at the end of the full hearing.[9]I pause for a moment to refer to the relevant Rules. The relevant Rule in respect of the Employment Tribunals Rules of Procedure 1993 is Rule 10(9) and that Rule is as follows:
"10(9) Clerical mistakes in the documents … or errors arising in those documents from an accidental slip or omission, may at any time be corrected by the chairman by certificate under his hand."
[10]Another relevant provision is Section 35 of the Employment Tribunals Act 1996 which gives this Tribunal the power when disposing of an appeal "to exercise any of the powers of the body or officer from whom the appeal was brought". We can also, if we wish, remit the case to that body or officer.[11]The next stage in the history after the Remedy Hearing on 8 October is that a Certificate of Correction was issued and signed by the Chairman dated 3 November 1999. That is at page 52 of our bundle and it is in a standard form, on its face saying that the Chairman is exercising the power under Rule 10(9). What is odd about that is that it does not mirror the statement of the Chairman as to what he and the members thought the error was at the time the matter was raised on 8 October because what he does is simply to delete the finding in Decision (i) rather than to add the word "not" as indicated in his statement. The position then moved on.[12]The next stage was that the decision on the Remedy Hearing was sent to the parties on 27 January 2000 and on its face it shows that the Employment Tribunal met in Chambers on 29 November 1999 after the Certificate of Correction had been made to consider Remedy. Paragraph 1 of those Extended Reasons makes it clear that the Employment Tribunal were considering Remedy in respect of discrimination by way of victimisation and unfair dismissal but not for direct racial discrimination and it therefore reflects their view that, on the hearing as to liability, they had decided to dismiss the Applicant's claims for direct racial discrimination.[13]The Applicant has cross appealed against the decision of the Chairman to delete Decision (i) in the Liability Decision. He says that that decision to delete was made without him or his Solicitor being given a proper opportunity to challenge it.[14]He says that it prejudices him because he would have been able to argue that he would have received increased damages for injury to feelings on the quantum hearing. However I pause to note that it would appear from the Extended Reasons in respect of the Remedy Hearing that those arguments were not actually put at that hearing but at this stage I shall accept that there is something in that argument.[15]The Applicant submits, by reference to the decision of Times Newspaper v Fitt [1981] ICR 637, that the decision of the Chairman is flawed because he and his Solicitor were not given a proper opportunity to argue out the point.[16]Given the common ground between the parties that the point was raised at the quantum hearing, I do not accept that.[17]Assuming in the Applicant's favour that the entirety of the Applicant's and his Solicitor's recollection of what was said on 8 October is correct and thus that all the Chairman said was "We will consider the matter in Chambers" in our judgment that still gave the Applicant, who at that stage was coming armed to argue all issues on quantum, the opportunity to say "No, you should not do that, I will be prejudiced if you alter matters by way of correction".[18]However, even assuming that that is wrong as I read the decision in Times Newspaper v Fitt , a failure to give a party an opportunity to make representation is a procedural irregularity and would not of itself render the decision void or of no effect and the reality of the position is that the Applicant has had ample opportunity before us to put his points as to whether or not there should be a correction.[19]On the same factual basis and also assuming in the Applicant's favour that on the basis of the original decision he would have been able to advance arguments which would increase the quantum of his award, it nonetheless seems to us that this is a clear case in which Rule 10(9) should be operated in its true and correct sense, namely to correct what is essentially a typing error to ensure that the decision as recorded in the document is in line with the decision the Employment Tribunal had reached. The oddity in this case is that when the Chairman came to issue his certificate he did not in fact do that.[20]It follows in our judgment that what we should do is exercise our power under Section 35 of the 1996 Act is simply to revoke his certificate and ourselves, in accordance with Rule 10(9) add the word "not" to the finding in Decision (i) in the appropriate place so that this appeal and cross appeal continue on that basis.[21]That will enable the Applicant, should he so wish, him to argue that that decision (i.e. Decision (i) in that corrected form) is wrong or is not properly supported by the Extended Reasons.[22]So accordingly on the first issue, namely as to the Certificate of Correction, we will, pursuant to Rule 10(9) exercising the powers of the Chairman, correct Decision (i) to read:
"(i) the Applicant was not discriminated against on racial grounds."
[23]I should add that in that context we accept that a proper reading of the Extended Reasons, taken as a whole, supports the conclusion that that is what the Employment Tribunal were in fact deciding and, indeed, this is confirmed by the views expressed by all of all the Employment Tribunal that there was simply a typographical error in Decision (i).