MR O OLIFRA T/A F & M ASSOCIATES v MISS S MCBEAN [2003] UKEAT 0413_03_1010

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0413_03_1010

Case No Appeal No. EAT/0413/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR O OLIFRA T/A F & M ASSOCIATESAPPELLANT

MISS S MCBEANRESPONDENT

Before

His Honour Judge J R Reid

Date 10 October 2003

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant HIS HONOUR JUDGE J R REID QC This is the preliminary hearing of an appeal by Mr Olifra against a Decision of an Employment Tribunal held at London South on 28 February this year; the Tribunal comprised the Chairman, Ms E C Hide (sitting alone). By her Decision she determined that the Respondent below, the Appellant here, Mr Olifra had unlawfully discriminated against the Applicant, Miss McBean, on the grounds of her sex and ordered that he pay her £19,909.27 by way of compensation for the unlawful sex discrimination.

[2]The Notice of Appeal, as it is at present drafted, raises three points, first that the Chairman failed to consider whether the Appellant had received notice of the proceedings and whether he had received the Originating Application and subsequent correspondence; it was submitted that this amounted to an error of law and/or perversity. Secondly, it was asserted that the Chairman in reaching her decision did not refer to the law she applied and that her conclusions were unsupported by law. Thirdly it was asserted that it would have been desirable for her to exercise her discretion by sitting with lay members, particularly because the case involved allegations of sex discrimination, and that the failure to exercise discretion in the circumstances of the particular case amounted to an error of law and perversity.

[3]Taking those three points in turn, as to the first the Appellant has asserted that he did not receive the papers. He made an application for review out of time which was not acceded to, but the Chairman in dealing with that application for review pointed out in the decision letter at page 24 of the bundle as follows:

"Moreover, Ms Hide has noted that there is no evidence on the Tribunal file that any of the Tribunal's previous correspondence was ever returned to the Tribunal, including the copy of the Application ET1, the blank Notice of Appearance ET3 for completion, or the Notice of Hearing. Given that your letter" [the reference to the letter from the Appellant's solicitors asking for a review] "indicates that your client never actually abandoned his premises at Unit 1, 455 Brixton Road, London SW9, (where these documents were all sent). Ms Hide is also of the opinion that it was down to your client to make secure arrangements to receive his post, (which the Post Office would undoubtedly have arranged for a nominal fee). Finally, Ms Hide has noted your assertions as to the correct name of your client and his business."

She then invited an amendment to correct the name from "Olifra" to "Olaifa".

[4]In circumstances where there is no indication that documents have not come to the attention of a party it does not seem to us that there is any obligation on a Chairman or on a panel to enter into consideration expressed in the face of the decision as to whether or not a party has received notice of proceedings. The Tribunal is entitled to make the assumption that, in the absence of documents being returned, the party has received documents sent to him or her. In the event, of course, that the party has not received them the party can apply timeously, on discovering what happened, for a review In this instance the Appellant applied but applied out of time and, as appears from the letter giving Ms Hide's decision on the review, had failed to act with any due diligence on receipt of notice that the hearing had taken place. In our judgment, it cannot be said that the Chairman's failure at the original hearing to consider whether the Appellant had received notice of the proceedings was either an error of law or perverse.

[5]As to the second ground of appeal, it is asserted that the Chairman in reaching her decision at the original hearing did not refer to the law which she had applied and that the conclusions are unsupported by law. That assertion is simply untenable. The allegations of fact made a simple and clear case of sexual harassment against the Appellant and the Decision deals with this unlawful sex discrimination by setting out quite clearly what the issues are. Paragraph 3 says this:

"This required the Tribunal to decide whether, contrary to sub-section 1(1)(a) of the Sex Discrimination Act 1975 ("the SDA"), Mr Olifra had treated Miss McBean less favourably on the grounds of her sex than he did or would have treated a man, by subjecting her to any detriment, contrary to sub-section 6(2) of the SDA"

[6]That makes it perfectly clear that the Tribunal had the relevant law in mind. There is no requirement that a Tribunal should read out in full what the terms of the sections are, or in cases which are, if the facts are proved, obviously within the clear words of the section, to engage in a trawl through the case law that has been decided under the relevant sections. It follows that that ground of appeal equally fails.

[7]The third ground of appeal, in effect that the Chairman should not have reached the Decision sitting alone, requires slightly more investigation. The provisions of the Employment Tribunals Act deal with Chairmen sitting alone in section 4, in particular subsections (3) to (5). The relevant provisions of section 4 are as follows:

"4. - (1) Subject to the following provisions of this section [and to section 7(3)(A),proceedings before an employment tribunal shall be heard by- (a) the person who, in accordance with regulations made under section 1(1), is the chairman, and (b) two other members, or (with the consent of the parties) one other member, selected as the other members (or member) in accordance with regulations so made. (2) Subject to subsection (5), the proceedings specified in subsection (3) shall be heard by the person mentioned in subsection (1)(a) alone."

That is to say a Chairman sitting alone. Subsection (3) then sets out in sub-paragraphs (a) to (g) the circumstances in which the Chairman is expected to sit alone. (g) is "(g) proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case." By subsection (5) "(5) Proceedings specified in subsection (3) shall be heard in accordance with subsection (1)" [That is to say by a panel of three] "if a person who, in accordance with regulations made under section 1(1), may be the chairman of an employment tribunal, having regard to- (a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1), (b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2), (c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and (d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3), decides at any stage of the proceedings that the proceedings are to be heard in accordance with subsection (1)."

[8]What is said (and reference is made to Sogbetun -v- London Borough of Hackney

[1988] IRLR 676

and Post Office -v- Howell

[2000] IRLR 224

and Morgan -v- Brith Gof Cyf

[2001] ICR 978

) is that the Tribunal was wrong in failing to consider whether or not the matter should be heard by a panel of three and that that vitiated the decision.

[9]In our judgment, the appropriate place to start and finish so far as the case law is concerned is the Morgan case, which deals fully with the earlier cases and in which the then President, Mr

Justice Lindsay, having dealt with other matters, said this at paragraphs 27 - 29:

"27 Rather the case is that unless the chairman has decided to go to a panel of three the matter is inescapably proper only for a hearing by a panel of one under section 4(2). There is a danger that the approach in the Sogbetun case really rewrites the statute by making it operate as if it provided that unless the chairman has duly declined to choose a panel of three, there should be a panel of three. But that is not what the section provides. Parliament could, of course, have expressly cast upon a chairman an obligation in every case to consider whether the matters described in subsection (5)(a),(b)(c) and (d) pointed towards a hearing in front of a panel of three. Parliament could have provided that that was to apply in every breach of contract case or some breaches of contract cases, and distinctions might have needed to have been drawn between different categories. But it is a very strange way to frame an obligation on a chairman which is said to require him to decide something by saying "if the chairman decides ", which is the formula that subsection (5) adopts. If Parliament had meant to cast a duty upon a chairman invariably to consider the sort of matters that are raised in subsection (5), it would say "the chairman must decide" or "the chairman shall decide" or something along those lines and not begin, as it does, by saying "if the chairman decides". 28 It is no doubt desirable for a chairman to reflect upon subsection (5), even if he is not invited to do so. And certainly, of course, if he is addressed on the subject or it is raised in the papers, well then he has to turn his mind to the issues described in subsection (5). Whenever there is real doubt in the question it must always, in our view, be better for him to prefer a panel of three. But it is not, in our view, an error of law on the chairman's part, when dealing with a case which is a subsection (3) case and the point is not being raised by anyone, not to turn his mind to subsection (5). Nor is it an error of law for him not to have expressed openly the consideration that he might tacitly have had in mind. Suppose this is a rather extreme example: at the end of the hearing of a subsection (3) case where no one at any stage had raised the issue of whether there should be one person or three hearing it but where it had been heard by the chairman alone, after he has given his decision, the Chairman made some remark such as "

I have not thought at all of subsection (5) but now I see I could have sat with others" or even "Now I see it would have been preferable for me to sit with others" or something along those lines. That, surely, would not represent a nullification of his decision. Again, so far we reiterate that we adopt the reasoning of Post Office -v- Howell

[2000] ICR 913

. But nor would it either, in our view, represent an error of law in relation to the hypothetical chairman's decision in the case such as to entitle the appeal tribunal to interfere with that decision. It would not be a material error of law. It would really be more of a somewhat disturbing and startling admission of ignorance on the hypothetical chairman's part but not truly speaking, a relevant error of law. 29 Another way of looking at the matter, in case we are wrong in that, is this: would it be material for us to consider whether the Tribunal's decision here, that is to say the decision of the chairman alone, was perverse. Was the exercise of the discretion, had it been exercised here, such that a reasonable chairman acting properly could only have decided that this was a proper matter for three to hear and only for three to hear?"

[10]In this case nobody raised the issue as to whether this was a case which should not have been dealt with by a Chairman sitting alone.

(g) as being:

"(g) proceedings in which the person (or, where more than one, each of the persons) against whom the proceedings are brought does not, or has ceased to, contest the case."

[11]The Chairman rightly pointed out at the beginning of her Decision in the first part of paragraph 3 that although the Appellant had failed to lodge a Notice of Appearance in response to Miss McBean's claim she was still required to prove her claim of unlawful sex discrimination, but that did not mean that there were going to be issues of fact in dispute which made it desirable for proceedings to be heard in accordance with subsection (1).

[12]The Chairman was quite entitled, in our judgment, in the light of the law as expounded in Morgan -v- Brith Gof Cyf to proceed as she did, sitting alone. It does not, in our judgment, seem that the failure explicitly to consider whether the matter should be dealt with by a panel of one or a panel of three (which must in any event have been considered by somebody, to lead to a listing before a Chairman alone) render her Decision void, nor is it a Decision which could be said to be perverse. The fact that this was a sex discrimination case in which witnesses were to be heard did not mean that either that there were issues of fact which rendered it desirable there should be a panel of three, or that for some other reason it was desirable there should be three people to determine it.

[13]The benefit of a lay member's experience might have been something, but to describe it as the Notice of Appeal does as "invaluable" does not seem to us to amount to an assertion we can accept that the Chairman's determination of the matter by herself was an error of law or was perverse. It follows that the three grounds of appeal set out in the Notice of Appeal all fail.

[14]The lengthy Skeleton Argument which we have received suggests that there is to be an application to amend the Notice of Appeal. There is no draft Amended Notice of Appeal before us, but for the sake of completeness we shall deal with the three proposed additional grounds set out in paragraphs 39 - 43 of the Skeleton Argument.

[15]The first, set out at paragraph 41 is that:

"The tribunal erred in failing to consider the issue of mitigation at paragraph 26 of its decision."

The Skeleton Argument correctly points out that normal principles of mitigation apply, but there was nothing here to indicate that there were any matters of mitigation which the Tribunal failed to take into account of, but should have done. Indeed, it is noticeable that at paragraph 26(a) of the Decision, the Chairman specifically points out a matter of mitigation relating to loss of earnings. In our judgment there is nothing whatever in this point and leave to amend to add it should not be given.

[16]Secondly, it is said that the Tribunal erred in its conclusions on remedy, at paragraph 26 of its decision, because the amounts it awarded the Respondent were, wrongly, based on its finding of fact concerning the Respondent's GP's evidence "contrary to the guidance in Sheriff v Klyne Tugs (Lowestoft) Ltd

[1999] IRLR 481

, in which the Court of Appeal stated that in a case of sex discrimination, a full medical report should be obtained." With all respect to the author of the grounds of appeal, that does not appear to us to be an accurate resume of the Sheriff case.

[17]There is nothing in that case which prevents a court from dealing with the matter on the basis of medical evidence such as is provided here; all that was said on the subject in that case was an obiter dictum of Lord Justice Steward Smith to the effect that where the discrimination claim in an Employment Tribunal might include injury to health as well as injury to feelings, a complainant may well wish to obtain a medical report. That does not prevent a claimant coming without a medical report prepare specifically for that purpose, still less does it prevent a Tribunal making a decision on the evidence which is before it. That ground also is hopeless and leave to amend to raise it is refused.

[18]Thirdly, it is said that:

"The Tribunal erred in making a separate award for injury to feelings in personal injury thereby allowing the Respondent to "doubly" recover contrary to the guidance set out in HM Prison Service v Salmon "

In Prison Service -v- Salmon , as in this case, the Tribunal was careful to ensure that there was no double recovery. The relevant passage in the headnote in the Prison Service -v- Salmon case reads as follows:

"The overlap between the injury to feelings for which the applicant would be compensated and the injury covered by the award of general damages for psychiatric injury was not such as to give rise to a substantial degree of double recovery"

[19]In this instance the Tribunal treated the two elements separately and at paragraph 26 (d) carefully dealt with the matter, saying this:

"Having had regard, in particular, to the Judicial Studies Board guidelines on damages for psychiatric injury, and bearing in mind the award, which the Tribunal has made separately for injury to feelings, the Tribunal has concluded that Miss McBean's personal injury is towards the bottom end of the "moderate" band, which ranges from £3,000 to £10,000. In all the circumstances, the Tribunal considers an award of £3,500 to represent a fair one to be made in this regard."

It is clear therefore that there was no element of double recovery being allowed by the Tribunal in this instance. That ground also is one which is hopeless and which should not be allowed to be added by amendment.

[20]In those circumstances none of the points raised by the Appellant, either in his Notice of Appeal or in the proposed amendments to his Notice of Appeal warrant further exploration at a full hearing, and the appeal will be dismissed at this stage.