MR A A LAWAL v CHESTERFIELD BOROUGH COUNCIL [2001] UKEAT 910_00_2601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 910_00_2601Case No Appeal No. EAT/910/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A LAWALAPPELLANTCHESTERFIELD BOROUGH COUNCILRESPONDENT
Before
Mr Justice LindsayDate 26 January 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : This is by way of a preliminary hearing of the appeal of Mr A A Lawal in the matter Lawal v Chesterfield Borough Council . Today Mr Lawal has appeared in front of us in person. On 29th September 1999 Mr Lawal lodged his IT1 at the Employment Tribunal in Sheffield; it is stamped on our page 4 as received by the Employment Tribunal on 29th September 1999. It claimed race discrimination in relation to employment recruitment. Mr Lawal had not been employed by the Chesterfield Council, but obviously, as his complaint was in relation to employment recruitment and was said to be one of race discrimination, there was no need for him actually to be employed by the respondent Council.[2]On 20th October 1999 Chesterfield lodged its IT3 in which, inter alia, it set out a procedural history of other proceedings and disputes in which Mr Lawal had been involved with that Borough Council, starting with an allegation that difficulties had begun with a cheque which had been dishonoured as far back as March 1997. That, at least, was the Chesterfield claim. The Borough Council said in their IT3 that Mr Lawal's IT1 was scandalous, frivolous and vexatious.[3]A preliminary hearing was arranged at the Employment Tribunal but the point that emerged for the Employment Tribunal to deal with was not whether the IT1 should be struck out as scandalous, frivolous or vexatious, which one might have expected from the nature of the complaint made by Chesterfield in its IT3, but whether a deposit should be required from Mr Lawal if the case was to go forward. That requirement is under Employment Tribunal rules 7(4) and 7(5). It is necessary to look briefly at the provisions of the rule. Rule 7(4) says:
"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."
But then importantly Rule 7(5) says:
"No order shall be made under this rule unless the tribunal has taken 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."
Now one can see that a situation could arise in which, where, at a preliminary hearing, a tribunal had said that an applicant had no reasonable prospect of success, they might be likely to carry forward that conclusion to when they come to hear the full hearing, and that that could lead to a literal prejudice. However, that is guarded against because Rule 7(9) says:
"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."
[4]The pre-hearing review with which we are concerned was conducted before Mr A J Glossop and two lay members, Mrs E M Burgess and Mr A C Reid. The decision, which was sent to the parties on 28th February 2000, was in Mr Lawal's favour. It was unanimous and it was:
"The unanimous decision of the tribunal is that no order for a deposit to be paid shall be made in this matter for the reasons set out below."
Summary reasons were given and they include this:
"2. The tribunal is satisfied that the applicant has no reasonable prospect of success since on the documents and argument before the tribunal there was no evidence that the decision not to offer the applicant a job by the respondent was in any way influenced by the race or ethnic origin of the applicant. 3. Upon the unchallenged evidence of the applicant he was unemployed and already the subject of at least two unpaid County Court judgments. 4. In these circumstances the tribunal found that he has no means to pay any deposit ordered and it would therefore be unreasonable to make any such order. 5. This decision does not in any way preclude the respondent from making an application for costs at the substantive hearing if it be so advised."
And that set of summary reasons for the decision was, as I say, sent to the parties on 28th February 2000.[5]Mr Lawal, dissatisfied by meeting with total success, asked for extended reasons, perhaps with a view to an appeal. On 21st March 2000 the Employment Tribunal on behalf of the Chairman wrote to Mr Lawal to say:
"Thank you for your letter dated 7 March 2000. This has been referred to a Tribunal Chairman (Mr Glossop) who says that his summary reasons and full reasons are identical."
And that is a response of a kind that is not unfamiliar and seems to us an acceptable practice. Quite often it can be that a tribunal heads its reasons as "summary" expecting no further development, but, of course, there being only summary reasons precludes an appeal. For an appeal extended reasons are sought. Then, if there is request for extended reasons, upon reflection it is open to the tribunal to say that whatever had been described "summary" was in fact as full as need be. So it is a familiar and acceptable practice to do as the Employment Tribunal there did.[6]Thus equipped with what could then be taken to be extended reasons, Mr Lawal was in a position to appeal and he did so the very next day – 22nd March 2000. He sent in, presumably by fax, a Notice of Appeal and it was received on the same day.[7]It may be, it is not clear, that for a time the Employment Appeal Tribunal delayed the appeal not knowing that the Chairman had described the summary reasons as full reasons and had taken the point that there were no extended reasons and that to that extent the Notice of Appeal was not in a position to go ahead. That seems to have been the case, although it does not actually appear in our papers. But, at all events, the appeal has gone ahead and in head 6 of the Notice of Appeal, which is headed "The grounds upon which this appeal are brought are that the industrial tribunal erred in law in that (here set out in paragraphs the various grounds of appeal) ", Mr Lawal completed his Notice of Appeal by saying this:
"i) By interfering in a matter pending before a Circuit Judge before whom parties are ordered to appear on 12 April 2000; ii) In any event by broaching subject matter under Part III section 20 of the Race Relations Act 1976, tribunal ultra vires, here lies section 57 of the aforesaid 1976 Act; iii) In any event, summary and full reasons as purported failed test under Rule 8(2); iv) Inter alia, procedure point in accordance with the paragraph 2(2) of this Appeal Tribunal Regulations shown to succeed based on ET's letter on 21.3.00."
It seems to us that the Notice of Appeal is entirely misconceived. So far as concerns the decision that grew out of the oral hearing on 7th February 2000, the decision sent out on 29th February 2000, no point of law , and we have to emphasise that it is only points of law with which we are concerned, referable to that decision emerges from the Notice of Appeal. Mr Lawal was entirely victorious on that occasion. The Employment Tribunal's view on that day that his IT1 had no prospect of success was not a determination of that issue but just a necessary stage in the application under Rule 7(4) if the application was to be fully considered. It would not bind and nor was it intended to bind any later tribunal and, as we have already noted, the Employment Tribunal Rules are careful to ensure that those who hear a pre-hearing of such a kind do not hear the substantive case on the merits. Even if the Employment Tribunal was wrong in taking the view on Mr Lawal's evidence that he was unemployed and without means sufficient to pay any deposit – and we have no reason whatsoever to think that the Employment Tribunal was wrong on that score – that would only be an error of fact. They recite the material upon which they came to that conclusion, namely Mr Lawal's own evidence. We have not got any ground upon which to think that they had no evidence at all upon which they could conclude as they did. Even if we did have any such ground, the difficulty would remain for Mr Lawal that ordinarily one appeals against decisions not reasons and the decision, of course, was entirely in Mr Lawal's favour and one cannot appeal against a total victory.[8]So far as concerns the reference to 21st March 2000, the Chairman was asked for extended reasons and he gave them by indicating that the summary reasons were the extended reasons and that, as it seems to us, suffices. There is no available point of law open to Mr Lawal on that score.[9]Mr Lawal has addressed us as to a clerical error. It is plain on the face of the decision sent out on 28th February 2000. It says "Chairman: Mr A J Glossop", but it says "Held at: Mr A J Glossop" and it should, of course, have said "Sheffield". But there is no significance whatsoever in the error. The decision was entirely clear and was clearly understood.[10]Mr Lawal also complains that his appeal has been improperly delayed for the reasons that we described earlier, but it is now before us and it is disappointing or unfortunate if it has been delayed but it does not affect the quality of the points of law raised in the appeal and, as to that, we find no arguable points of law and accordingly must dismiss the appeal even at this preliminary stage.