MR A SANUSI v (1) LONDON BOROUGH OF HACKNEY [2001] UKEAT 854_01_0308

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 854_01_0308

Case No Appeal No. EAT/854/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A SANUSIAPPELLANT

(1) LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Lindsay

Date 3 August 2001

[1]APPEARANCES For the Appellant MR D TIYAMIYU (Lay Representative) For the Respondent MR K AKAINYAH (Solicitor) Messrs Akainyah & Co Solicitors 308 Seven Sisters Road Finsbury Park London N4 2AG MR JUSTICE LINDSAY (PRESIDENT) We have before us as an interlocutory appeal the appeal of Mr Alade Sanusi, a black of West African origin. Today Mr Sanusi has been represented by Mr Tiyamiyu and the London Borough of Hackney, the Respondents, by Mr Akainyah.

[2]On 19 March 2001 an IT1 was presented by Mr Sanusi for racial discrimination, victimisation and the number given it was 194/2001. The position that Mr Sanusi said had occurred was that it had been decided on 22 December 2000 that he should be suspended by his employers, Hackney Borough, and he had been told of a suspension on 2 January 2001 and he said that why he had been suspended had been because he had made a race complaint against Mr Hook, who is another Respondent. I should have said that there are three individual Respondents; Mr Carlos Cortez, second Respondent, Mr Ian Hook, third Respondent and Mr Max Caller, fourth Respondent.

[3]The complaint was therefore that the protected Act, namely making a race complaint against a fellow employee under the Borough's own procedures, had led to him being victimised by way of being suspended. So that was the first IT1.

[4]On the same day there was another IT1 that was given the number 196/2001 and that alleged discrimination arising out of the Borough's audit investigation scheme, which Mr Sanusi said was being used in a veiled attempt to dismiss him and, moreover, being used in a discriminatory way.

[5]A third IT1, given the number 197/2001 was issued on the same day alleging race discrimination in that Hackney was failing to progress a grievance.

[6]On 2 April 2001 the Respondents asked for the three IT1s to be consolidated, on the face of it a sensible thing to do, and eventually on 7 June 2001 there was an amended Notice of Appearance on the part of the various Respondents.

[7]The grounds of resistance said at paragraph 2: 2. "The Applicant is black and of West African origin and was at all material times employed by the Respondent as the Manager (grade PO2) at their Britannia Leisure Centre facility."

[8]A little later in paragraph 7 the response was: 7. "In November 2000 the Respondents received allegations from a member of staff at the Leisure Centre regarding the use by the Applicant of contractors and persons, whose authority was unconfirmed but who had been given unlimited access to the Leisure Centre and corporate systems. The allegations also related to costs charged by these contractors to the Leisure Centre. These allegations were the subject of an investigation by the Audit and Special Investigations Unit of the Fourth Respondent. 8. Following preliminary investigations and meetings the First Respondent was advised by the Audit and Special Investigations Unit to suspend the Applicant. He was in fact suspended on the 2 January 2001 pending further enquiries."

[9]In their paragraph 11 they said: 11. "The Audit and Special Investigation Unit provided a report to the First Respondent dated 19 February 2001. It found that there had been serious breaches of financial regulations. Its essential conclusions and Recommendation were that:(a) Disciplinary proceedings should be instigated against the Applicant.

(b) There was evidence that the Applicant paid for services which were not received by the authority and that he had authorised other fraudulent charges.

(d) There was evidence that services which had been received from the specified contractors did not represent good value for money.

(e) There was evidence of potential breaches of security of the Fourth Respondents' computer network arising from the use of unauthorised contractors."

[10]On 5 March 2001 the Applicant was served with a disciplinary notice by the First Respondent stating that:

"…you are responsible for a significant number of corrupt, potentially fraudulent and actually fraudulent financial transactions at Britannia Leisure Centre, in breach of the Councils' Financial Regulations, Standing Orders and Code of Conduct for employees, amounting to gross misconduct."

[11]So obviously a serious case was lining up, so to speak, in the sense that on the one hand there were serious accusations of racial discrimination by way of victimisation and in other ways and, moreover, against that there was a serious case mounted or intended to be mounted by the London Borough of Hackney of the kind which the above citations from their Notice of Appearance makes clear. Obviously it was going to be a relatively complicated case and, indeed, Mr Tiyamiyu today tells us that it is expected that ultimately the case will take five days to hear.

[12]On 13 June 2001 there was, unsurprisingly, a directions hearing. It was, as is usual in these cases, the position was that at the end of the hearing oral directions were given and orally it was announced that the hearing, this is to say the directions hearing, was to be postponed until 12 September 2001.

[13]The Chairman, it seems, had herself decided that this was an appropriate thing to consider and it had been argued out at the oral hearing on 13 June and the decision was that the directions hearing should be postponed until 12 September.

[14]There is no suggestion that the point was not fully covered, namely whether there should be an adjournment on 13 June, and, indeed, there are references in the letter we will come on to in a moment to its being strongly argued and lengthy argument having been heard. There is certainly no indication that any application was made by either side that once the Chairman had proposed the postponement that any indication was given that there was a wish to appeal against that or to have the question of an adjournment itself adjourned.

[15]On 15 June the Tribunal on behalf of the Chairman wrote a letter, a copy of which was sent to both sides and it says: 1. "This is to record what took place at the Directions Hearing held before Mrs J R Hill, Chairman, on 13 June 2001…"

[16]It then sets out the IT1s that were then in front of the Tribunal and it says this: 3. "Mr Akainyah had on 7 June presented an amended Notice of Appearance. It was apparent from that Notice of Appearance that the investigation of a grievance by the Applicant dated 6 December 2000 and 5 January 2001 and also the disciplinary proceedings in respect of the Applicant had not yet been concluded. The London Borough of Hackney proposed that the grievance procedure should be concluded prior to the disciplinary process. It appeared to the Chairman that, in order for the case to be properly considered by the Tribunal, it was necessary that, at the very least, the investigation of the grievance at the first stage should be concluded and that the first stage of the disciplinary process should be concluded. The Applicant was strongly opposed to the proposal that the matter be stayed for three months to allow this process to be pursued as, in view of the Applicant, the case as currently pleaded was sufficient to proceed to a Full Merits Hearing. The Respondent, however, was anxious that the matter should be resolved, if at all possible, internally, they wished a stay to take place but considered that a time-limit delay was appropriate. 4. The Chairman, having heard lengthy arguments on the matter, considered that the interests of justice for both parties meant that more information would be required from the Respondents than could currently be made available. Until the grievance process was concluded, and at least the first stage of the disciplinary process. It would be difficult for the Applicant to understand the Respondents' position. It would be difficult for the Respondents to explain their position. In order, therefore, for the Tribunal to reach a proper conclusion on the assertions made by the Applicant that he had been made the subject of discrimination on the grounds of his race the Chairman concluded that a stay of the proceedings for three months could only benefit both parties and the Tribunal who ultimately heard the case. 5. The hearing is therefore postponed for three months until 12 September 2001 at a time to be notified, at 19-29 Woburn Place, London WC1H 0LU. The Chairman directed that by that time she would expect that both the first stage of the grievance process and the first stage of the disciplinary process in respect of the Applicant would have been concluded, such that the Applicant would know the outcome of the disciplinary proceedings against him and the Respondents would be in a position to explain how they intended to deal with the Applicant's grievance."

[17]The Applicant, Mr Sanusi, on receiving that letter, possibly on hearing the judgment orally on 13 June, became minded to appeal against it and took some steps - we have not got all the intervening stages - to contact the Employment Appeal Tribunal and was met with the point that what was needed was an Order if there was to be an appeal.

[18]How much delay there was, if any, does not immediately appear, but the position was that on 10 July, no doubt prompted by some request, the Employment Tribunal made an Order as follows:

"The hearing is postponed until 12 September 2001 for the reasons set out in the Tribunal's letter dated 15 June 2001."

And it is against that Order that the appeal is conducted. It might be thought a somewhat odd thing to appeal against because if the appeal were to be successful and the Order were thus to be struck out and quashed, then the position would be that the postponement until 12 September would not exist, and the remaining parts of the directions hearing would have to struggle to find some other date, and, given that we are already into August and given the load upon the Employment Tribunals and the manner in which they list matters, the practical chances of the directions hearing being restored earlier than 12 September would seem to be close to negligible. However, we have to consider the appeal, however pointless it might, on the face of things, be.

[19]The grounds of appeal themselves are fairly shortly stated. There were originally two, but they have been added to. The first one was headed "Jurisdiction". " In concluding "that a stay of the proceedings for three months could only benefit both parties and the Tribunal who ultimately heard the case", the Chairman erred in law in that he has no express power to stay proceedings within the Employment Tribunal's (consolidation and Rules of Procedure) Regulations 1993." The key word there is the word "express", in that he has no express power to stay proceedings. If by an express power one means a power that relates to stay and says so, well then, it is the case that the Tribunal has no express power to postpone as it did. But, as I mentioned to Mr Tiyamiyu in argument, it has no express power, for example, to rise for lunch, to adjourn accordingly, or to rise if the electricity fails and the Court is sitting in the dark or to rise if a witness or a member of the Tribunal is taken ill; it has no express power to do many sensible things, but it does have general powers conferred on it by Rule 13(1) and the power to give directions under Rule 16. Such powers enable it to exercise a judicial discretion in relation to the listing and adjournment of cases. Such powers enable the Tribunal to hold, if an appropriate case is made out, that a matter should be heard not immediately but at some later date and certainly it is well within the powers of a Tribunal to adjourn a case from June till September, should it see a case to do so, notwithstanding that no express power to stay or postpone or adjourn is conferred on the Tribunal.

[20]The second ground is this: breach of

Article 6(1) of the Convention

of the Human Rights Act 1998:

"The Chairman erred in law in that he acted in a way which is incompatible with the Appellant's Convention right " to a fair and public hearing within a reasonable time" under Art. 6(1) contrary to section 6(1) Human Rights Act 1998 in that a stay of proceedings for three months without any request by the parties is unfair, unjust and would unnecessarily increase the length of the proceedings."

Well, the quotation from the Convention cannot be doubted, but it raises the questions "What is a fair hearing?" and "What is a reasonable time?" As far as concerns fairness, the Tribunal in the passage that we have already cited, said (with our emphasis):- "In order therefore for the Tribunal to reach a proper conclusion on the assertions made by the Applicant that he had been the subject of discrimination on the grounds of his race, the Chairman concluded that a stay of the proceedings for three months could only benefit both parties and the Tribunal who ultimately hear the case." A little earlier, again in the passage we have already cited, it says:

"The Chairman, having heard lengthy arguments on the matter, considered that the interests of justice for both parties meant that more information would be required from the Respondents than could currently be made available."

[21]To proceed without postponement would, so far as the experienced Chairman, Mrs J R Hill decided, have meant that the Employment Tribunal itself and both parties would have needed further information if a fair and proper conclusion was to be reached. In other words, for there to be a fair hearing, a reasonable postponement was necessary.

[22]Where that is the case there is, of course, no breach of the Convention. We do not see that the Convention assists Mr Sanusi and we do not find anything in Robins v United Kingdom cited at 26 EHRR 527 of any assistance to Mr Sanusi's case. Plainly there are cases where a delay is extreme and cases where it can be said that more than a reasonable time has been taken, but the interval between June and September in this case, which is proposed by the Chairman for the reasons that she gave, seems to us not to give rise to any question of there having been unreasonable delay in the arrangements for a fair hearing.

[23]The further ground that Mr Tiyamiyu wishes to rely upon, in addition to those two mentioned in the original Notice of Appeal, is, broadly speaking, questions as to the exercise of the discretion by the Chairman. It is, of course, always difficult to attack the exercise of a discretion. What has to be shown is that the judging party, in this case the Chairman of the Tribunal, took into account that which should not have been taken into account, failed to take into account what should have been taken into account, or otherwise erred in a fundamental principle of law in relation to the Decision. Appellate bodies are extremely slow to interfere with the view taken by the Court or Tribunal below, especially in something where one can reasonably expect robust and speedy treatment, such as the question of whether something should be postponed or not.

[24]Here, it is true to say that not every single factor in the lengthy argument, that was obviously heard on the point, is set out by the Chairman. That is not to say that they were not in mind; one cannot jump from the assertion that a thing is not expressly mentioned to a submission that it had not been taken into account. Moreover, once one gets to a position in which the Tribunal itself, of its own motion, floats the notion that there could be no further fair hearing without delay, it is very difficult to see why that should be a wrongful exercise of a discretion; one would need an extremely compelling issue, for example, unusual prejudice to one side or another, to overturn an exercise of a discretion where it was based upon something as fundamental as the Tribunal itself considering that in order to reach a proper conclusion more time was needed and an adjournment was needed. We do not see the invocation of the exercise of the discretion being here of any assistance and we have in mind also the cases which Mr Tiyamiyu has cited to us - in re Yates Settlement Trusts

[1954] 1 WLR 564

; Avon County Council v Foxall and Others

[1989] ICR 407

and Hiro Balani v Spain 19 EHRR 566 .

[25]The Authorities do not, as it seemed to us, help us on the basic question of whether there was any error of law (and, of course, it is only errors of law with which we can deal) in the relatively simple decision on the part of the Chairman that the matter should go over until 12 September 2001. When the matter first came on we raised with Mr Tiyamiyu the basic question of what was the point of the appeal, given that unlikelihood, if we struck out the Order which he wishes us to strike out, of another day being arranged for the rest of the directions hearing before 12 September. We never, as it seemed to us, got a satisfactory answer to that question, and it remains slightly mystifying what the point of the appeal was. Even if, contrary to our view, there was error of law on the part of the Chairman, what would have been the practical point of the appeal?

[26]We have not been satisfied as to that, but, leaving that aside, and looking simply at whether there is a breach of the Convention, or a wrong exercise of a discretion, or a case where no power existed but was purportedly exercised, we have not found any error of law in any of those headings, and accordingly, without having to call on Mr Akainyah, we have felt that the only course open to us is that we should dismiss this interlocutory appeal. President : Mr Tiyamiyu, what do you want to say? Mr Tiyamiyu : I have got nothing to say… President : Mr Akainyah, Mr Akainyah : I think we have to make an application for costs. This appeal was, from its inception, pointless and misconceived. I wish to …. I am not sure if you have been able to read my outline of submissions - paragraph c President : Yes we did Mr Akainyah: The appeal is academic and serves little purpose. My lord very kindly pointed out to my opponent that he was at risk from costs, yet he continued, at least for half an hour after that. This application has served no purpose, has been a waste of time, the Court's time, and has incurred costs for my clients which they should be repaid by the Appellant. President: One of the difficulties in the jurisdiction that we have is that our power, and I think this is right, is only as against the party, in this case, Mr Sanusi. How far Mr Sanusi has, himself, acted unreasonably is not a thing on which we have any information. Mr Akainyah : He has been represented by Mr Tiyamiyu, both before Miss Hill and before this Tribunal and he must taken to accept that acts for him, and he must be responsible for anything which has been done by his Counsel or his rep. Clearly it is not an ad hoc arrangement because it has gone on for some time; he has drafted an appeal and he has been here for two hours and more. In any stage in the proceedings, he could have talked …..especially at a time that he was told that there was a risk that an application would be made for costs. President : Mr Tiyamiyu, what do you say on this? Mr Tiyamiyu: My Lord, as you rightly stated, the jurisdiction of the Appeal Tribunal in the area of costs is very strictly limited by Parliament………..to ensure that costs is not used as a purpose of preventing an appellant to generally have access to Her Majesty's court and if the Appellant, I know that he had generally formed the view that another Tribunal can have a different view in terms of the way the Tribunal have approached the hearing. I think this Appeal Tribunal actually has not discouraged …? simply because of costs. ……And also the key reason why the Appellant did not ? is that this case was just a tip of the iceberg. This was not the first time that …?……….were made by the Employment Tribunal which were adverse to the … President : Well, we cannot go into other cases ……….. Mr Tiyamiyu : Given the points that your Lordship made about the particularity (?) of the Court, even if the case is won ……….I think that point also should have been borne in mind by the Chairman and that is the major grievance which should have been heard. Quite clearly the interests of justice could have been pursued in the way the Chairman intended to President : Well, we do not want to go over that; we are just asking you to make observations on Mr Akainyah's argument on costs. Mr Tiyamiyu : Mr Akainyah's response to the submission does ………?…….to the Appellant. Secondly, Mr Akainyah saw the grounds of appeal and the Court in his judgment did not call him - Mr Akainyah is a qualified lawyer ….. he should have seen that the appeal is pointless, he need not have attended, he knows what the result of the Court is, and if that is where the Court President : You cannot complain that he is here; you launched inter partes appeal proceedings, so he is entitled to be here. Is there anything else you want to say, simply on the issue of costs? Mr Tiyamiyu : Yes - what I want to say my lord is that he knows the ? of the court's decision and quite clearly given that this is the court of justice I think President : If Mr Akainyah should have seen that the appeal would fall flat on its face, could you not have seen that? Mr Tiyamiyu : My Lord we actually ? ?……etc etc President: Well we will rise to consider the issue of costs between ourselves. [On returning] We have decided, by a majority, not to make any order as to costs.