MS D RABAHALLAH v BT PLC [2004] UKEAT 0382_04_0211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0382_04_0211

Case No Appeal No. UKEAT/0382/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS D RABAHALLAHAPPELLANT

BT PLCRESPONDENT

Before

Mr Justice Burton

Date 2 November 2004

[1]APPEARANCES For the Appellant MR COLIN THOMANN (Of Counsel) Appearing under the Bar Pro Bono Unit For the Respondent MR MATTHEW SHERIDAN (Of Counsel) Instructed by: BT Group Legal Services Libra House Sunrise Parkway Linford Wood Milton Keynes MK14 6PH SUMMARY CA Decision in de Haney that a party consenting to a 2-member Tribunal is entitled to know from what panel (employers or employees) the remaining lay member is drawn at EAT applies also to ETs (and consent forms should in future give that information), notwithstanding the emphatic importance of parties not regarding lay members as representatives or as partisan but rather as part of an independent judicial tribunal. No waiver or abuse of process by Applicant in taking the point. If the appeal (apart from the challenge to the composition of the tribunal) had raised an obviously bad point of law, it might not be necessary to remit, as although the ET had thus been irregularly constituted, the same result in front of another ET would be inevitable. But in this case, where assessment of the evidence is relevant to the substantive ground of appeal, the case must be remitted to a different Tribunal. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal against the Decision of the Employment Tribunal, sitting at London Central, brought by the Applicant, Mrs Rabahallah in somewhat unusual circumstances.

[2]The hearing began before three members, Mr Solomons as Chairman and two lay members, Ms Stennet and a Mr Brandt. The hearing, so far as the evidence is concerned, took four days between 13 and 16 May 2003. Unfortunately, after the evidence had been completed, and prior to the discussion in Chambers, which had been planned for 13 June 2003, Mr Brandt became unavailable; although we have no information, it appears this was as a result of ill-health, and it seems he has not at any time thereafter been in a position to sit.

[3]Without disclosing which of the two lay members it was who was unavailable, the Regional Secretary wrote a letter to the parties, dated 12 June 2003, stating as follows:

"A member, sitting on this case is currently unavailable to sit. Accordingly the Chambers hearing has been postponed. As soon as the position becomes more definite further contact will be made with the parties."

The Regional Chairman then wrote a further letter dated 11 July 2003, referring back to the Regional Secretary's letter of 12 June 2003 and indicating that unfortunately that unavailability continued, and that while it was not known how long those circumstances would continue, it was not anticipated that the situation was likely to change in the next few months. He continued:

" This case is currently awaiting a Chambers' meeting. Given the provisions of Regulation 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 ['the 2001 Regulations'] , the alternative courses of action now available are as follows: 1. To continue with the Chairman and one member (Regulation 9(3)). This would require the consent of all parties. 2. To hold a fresh hearing with a new tribunal. 3. To await for a further period (say, 3 months) before reviewing the situation. "

And the views of the parties were sought.

[4]The Respondents consented immediately, by letter dated 14 July 2003, to Option 1; continuation of the proceedings with just the Chairman and one member. The Solicitor for the Respondents, BT Plc, appreciated that this would require the consent of all the parties and indicated that if the Applicant did not consent to such course of action, then she would ask the Tribunal to effectively adopt Option 3; stating that the Tribunal would appreciate that the case was a time consuming and complex one, and in the circumstances BT would rather not proceed to a re-hearing unless there were absolutely no other options available.

[5]The Applicant took more time to consider her position. She was unrepresented, and had been unrepresented during the Employment Tribunal hearing. According to her Affidavit, sworn pursuant to my Order 17 May 2004 at paragraph 6, she says:

" At no point during the exchange of mail was the missing member named, although I had called the ET at the very beginning and asked for this information. Indeed I rang the ET's regional Chairman's office, the ET's direct line and the ET's general office on 14 and 16 July 2003 for several enquiries and I spoke to a woman who told me that I could not be told who was the remaining lay member otherwise it would advantage me or the Respondent. Since this element was not made available, I was left with no other option but to make my choice in the dark based solely on timescales speculations. "

What she means by 'timescales speculations' is made clear by a letter that she then wrote on 16 July to the Regional Chairman, as follows referring to his letter of 11 July:

"A priori, my preference would [be] go for a fast decision since the case has been going on for a long time and the decision is overdue. This would save time and money to all parties concerned, including the Tribunal and would acknowledge the work of the three members during the hearing. My only reservation is about the third member's missing opinion: indeed, if the missing member wishes to be counted – maybe because of a strong recommendation he wants to make that would impact on the final decision or remedy – I would then find it difficult to go ahead without his opinion. [I interpose that, given the absence of the Applicant's knowledge as to which member it was, I assume that the use of the pronoun 'he' was gender neutral.] If the two other members' views on the case reflect the missing member's, I would then not have any reservations. Before I make my final choice on the three alternatives you have presented me with, I would be grateful if you could let me have the following information: - the text of the Regulation 9(3) of the Employment Tribunals Regulations you referred to. - a date for the Chambers Hearing in the case where the remaining two members would sit and the date (or estimated date) when this would be communicated to me."

And she asked for a speedy response.

[6]The Regional Chairman replied by letter 28 July 2003 as follows:

"You raise various issues in your letter about the decision which you have been invited to make. I cannot give you advice on those matters. You must take your own independent advice from a law centre, solicitors or the like. Until I hear further from you, I cannot determine when the next Chamber's hearing would be held as it would be dependent on your decision. You will see from the copy letter enclosed herewith [and that is a reference to the letter of 14 July] that the Respondents have confirmed their agreement to proceeding with two members only. With regard to Regulation 9(3) of the Employment Tribunal Regulations, as you refer to them, no doubt your own independent advice would include such matters, but I enclose a photocopy, for your information, of the relevant Regulation [which indeed he did]."

[7]The final response by the Applicant was by letter dated 29 July 2003 in which she said:

" … please be informed that as mentioned in my previous letter, it is my preference that the case proceeds swiftly for I simply cannot afford to wait any longer. I therefore agree for a decision to be made by two members only and hope for the best possible timescales in terms of Chambers Hearing. "

The Regional Chairman then confirmed by letter dated 7 August 2003 that the matter would now proceed with the Chairman and one member.

[8]The decision of that 2-member panel was handed down on 4 March 2004. According to paragraph 3 of that Decision, the Chambers Hearing had been re-listed for Monday, 22 September 2003, when the Chairman and Ms Stennet sat in order to make the Tribunal's Decision. The Decision thus, of course, revealed who the surviving member was, and thus who it was, namely Mr Brandt, who had left the panel. The parties were notified in writing of the Tribunal's Decision on 17 November 2003, and that Extended Reasons would follow, and it was those Extended Reasons which were supplied on 4 March 2004.

[9]By Regulation 5 of the 2001 Regulations, the panels of members of the Employment Tribunals (England and Wales) are established. The first is the panel from amongst which legally qualified Chairmen are appointed.

(a) The second and third panels are provided as follows:

" (b) A panel of persons appointed by the Secretary of State after consultation with such organisations or associations of organisations representative of employees as he sees fit. "

We shall loosely describe such panel as the panel of employees' representatives " (c) A panel of persons appointed by the Secretary of State after consultation with such organisations or associations of organisations representative of employers as he sees fit ("employers' representatives")."

[10]Although neither his identity nor the panel of which he was a member were disclosed at the time, as we have described, it is now clear, or it became clear on the delivery of the Reasons, that the missing member was Mr Brandt, and it is now known that he came from panel (b). That is the panel which we have described as the panel of employees' representatives, rather than from the panel of employers' representatives.

[11]In the case of de Haney v Brent MIND & anr

[2004] ICR 348

, it was found by the Court of Appeal that a litigant in person, an appellant at the Employment Appeal Tribunal, was entitled to be given, when she was asked for her consent to continue an appeal with a two-member Tribunal consisting of a judge and one lay member, the information as to the panel, whether of employers or employees representatives, from which the surviving lay member was drawn. The issue in that case, in fact, revolved much more around the question as to whether the litigant in person was, in fact, given that information, and the Court of Appeal concluded that she was not. Nevertheless, this case relates, as is clear, to a similar situation, albeit one where the lay member ceased to be available during the proceedings, as opposed to before their commencement. There is no doubt in this case, as we have described, that the identity and source of the missing lay member were not disclosed.

[12]Albeit, however, that it first needed to resolve the issue as to whether the litigant in de Haney had been given the information, the Court of Appeal, in that case, concluded that such information was a " vital piece of information ", necessary before the consent of the parties, which could otherwise be given to a case being heard before a judge and one lay member under s28(3) of the Employment Tribunals Act 1996 ('the 1996 Act'), could be informed consent .

[13]The decision in de Haney is to many of us a matter of regret, because the proud tradition of the Employment Appeal Tribunal, and indeed, of the Employment Tribunals, is that from whichever side of industry the lay member is drawn, he or she sheds any partisanship, if, indeed, there ever had been any, and acts judicially and wholly independently. Peter Gibson LJ recognises this at paragraph 28 of de Haney. An employee applicant, or respondent, is not entitled to look, and must be discouraged from looking, to the person who happens to be the employee representative on the tribunal, or Appeal Tribunal, to decide favourably to him or her, and the same applies to employers, whether respondent or appellant, vis-à-vis employers' representatives sitting on a tribunal or Appeal Tribunal.

[14]Our own experience, and we are sure that of our fellow members, both judges and lay members, at the Employment Appeal Tribunal, and no doubt, of chairmen and lay members of employment tribunals is that lay members, albeit bringing with them experience from different areas, judge each case on its facts and without fear, favour or preconception. Lay members of the tribunals are not advocates for one side or the other. Nor is the chairman or judge a casting vote between them. Indeed, the infrequency of majority decisions tells its own tale. Together, they decide the case as independent judges.

[15]However, the decision of the Court of Appeal is binding upon us in so far as it relates to the requirement of informed consent to a 2-member panel at the Employment Appeal Tribunal. Can any material distinction be drawn between the position at the Employment Appeal Tribunal and at an employment tribunal? The relevant statutory provisions are:(i) In relation to the Employment Appeal Tribunal, s28(2) of the 1996 Act: " (2) Subject to subsections (3) to (5), proceedings before the Appeal Tribunal shall be heard by a judge and either two or four appointed members, so that in either case there is an equal number – (a) of persons whose knowledge or experience of industrial relations is as representatives of employers, and (b) of persons whose knowledge or experience of industrial relations is as representatives of workers (3) With the consent of the parties, proceedings before the Appeal Tribunal may be heard by a judge and one appointed member, or by a judge and three appointed members.

(ii) In the employment tribunal the provisions are found severally in the 1996 Act itself – in s4 – and in the 2001 Regulations to which we have referred. S4 reads, in material part, as follows: " (1) Subject to the following provisions of this section … proceedings before an [employment tribunal] shall be heard by – (a) the person who … is the chairman and (b) two other members selected as the other members in accordance with regulations so made or, with appropriate consent, one other member selected as the other member in accordance with regulations so made; … Such consent can be given either at the beginning of the hearing by such of the parties as are then present in person or represented, or by each of the parties.

[16]As to Regulation 9 of the 2001 Regulations this is headed 'Composition of Tribunals'. " (2) In any proceedings which are to be determined by a tribunal comprising a chairman … and two other members, those other members shall, subject to paragraph 5, be selected by the President or by the Regional Chairman, as to one member from the panel of persons appointed by the Secretary of State under regulation 5(1)(b) and as to the other from the panel of persons appointed under regulation 5(1)(c). (3) In any proceedings which are to be determined by a tribunal whose composition is described in paragraph (2) or, as the case may be paragraph 5(b) those proceedings may, with the consent of the parties, be heard and determined in the absence of any one member other than the chairman, and in that event the tribunal shall be properly constituted. "

[17]Although there is no express reference, in the 1996 Act or the Regulations, relating to the employment tribunal, to the words which can be found relating to the Appeal Tribunal in s28(2) of the 1996 Act, " so that in either case there is equal number ", Mr Matthew Sheridan of Counsel, who has appeared on behalf of the Respondent, has not sought to urge upon us that there is any distinction on that regard. And we see none. If anything, the position is a fortiori, as the employment tribunal, consisting of a member drawn from each side, has the task of making findings of fact; an additional duty which the Appeal Tribunal does not have. If the identity and derivation of a panel member is indeed material, even vitally material, in the Appeal Tribunal, as the Court of Appeal has found, then its materiality must be equally, if not more, vital in the employment tribunal.

[18]We do not therefore need to look at any of the secondary arguments of the Appellant, as ably mastered pro bono by Colin Thomann on her behalf. Whereas Mr Sheridan has manfully sought to resist the conclusion that there was no informed consent, and that thus there was a serious irregularity in relation to the composition of the tribunal, in the light of the de Haney case, we remain unpersuaded.

[19]He put his case on three bases. First, he tried to persuade us that Peter Gibson LJ's decision could be rested upon both upon a conclusion that the general principle which he was evolving rested upon the existence of apparent bias and upon the facts of that particular case. Mr Sheridan pointed out to us that in de Haney the position appears to have been that the appellant in that case gave her consent before lunch to a two-member tribunal without knowing the panel from which the lay member was drawn, discovered over lunch the fact that the surviving member came from the employers' representatives panel and after lunch raised that matter with the tribunal and sought to object, and was told that she had already given consent and that the case was proceeding.

[20]In those circumstances, submits Mr Sheridan, that was a case where, at any rate from lunch time onwards, there was a case of apparent bias. Peter Gibson LJ expressly, of course, absolved the continuing lay member from any such allegation but, submits Mr Sheridan, he was implicitly finding that, thereafter, there was apparent bias, by virtue of the composition of the panel thus made known to an Appellant who was continuing to run her case in front of that tribunal.

[21]He contrasts the situation with this case, where, as a result of a policy, whether national, regional or local, the litigant was denied the information which the Appellant in de Haney obtained over lunch, and consequently was left ignorant of the identity or origin of the continuing lay member, such that there was no apparent bias in relation to that tribunal's continuing to decide the case.

[22]We do not agree with Mr Sheridan's propositions. First of all, we are not convinced that Peter Gibson LJ, giving the judgment of the Court in de Haney , rested his conclusion wholly or materially on the concept of apparent bias. The rationale for his conclusion, in any event appears to have been based - and we have already indicated that we see no distinction, by reference to the statutory provisions, between the two tribunals - upon what he calls the rule of equality. What he says in paragraph 14, by reference to the Donovan Report in the first instance, is this, by quoting the submissions for Counsel for the appellant before him:

" …the requirement of the consent of the parties to a panel of members in which there is equality between employers' and employees' representative is important and designed to secure confidence in the administration of justice in a sensitive area of labour relations ."

And at paragraph 16 Peter Gibson LJ says:

" 16. I agree that the unrepresented party must know those two matters, but, in my judgment they are not the only matters that the parties should know. It must be borne in mind that the general rule is laid down in section 28(2), that is to say that there must be equality in number as between the lay member or members who are representatives of employers and the lay member or members who are representatives of employees, that is to say a rule of equality. "

At the end of paragraph 28, having made it clear that there was no imputation whatsoever against the continuing lay member in that case, he said as follows:

" What [lay members] are required to do is to bring their particular experience, which they have gained as employees or in management, to bear on the problems which are put before the appeal tribunal, and they do that in general in a wholly impartial manner. This is an appeal on a technical point, but what I have called the rule of equality is one to which Parliament has plainly attached importance; hence section 28(2). "

[23]Further, there is no sign whatever in de Haney , notwithstanding that the Court of Appeal was required to resolve certain issues of fact about what precisely had occurred, that this was decided by reference to the particular facts of the case, or that the particular appellant was disadvantaged, or was facing a situation of apparent bias, by having to continue after lunch, once the information was revealed to her. It appears clear to us that the Court of Appeal was addressing the information that she was required to be given before or at the time of giving her consent, i.e. before lunch.

[24]The second matter that Mr Sheridan argued before us, in his attempt to seek to persuade us that, bound though we might be by the Court of Appeal in respect of the Employment Appeal Tribunal, we should and could take a different view in relation to the employment tribunals, was by reference in effect to what can be described as his description of the apocalyptic consequences. The epithet was first used – and rejected – by Mr Thomann, by reference to the decision which we are being asked to make, applying to employment tribunals the judgment of the Court of Appeal, which impacted only upon the Employment Appeal Tribunal. We have already indicated that Mr Sheridan sought to persuade us that there was some distinction statutorily between the two; but, apart from pointing out, as he did, that the provision for the composition of the Tribunals was in the one case entirely contained in the principal statute, whereas in relation to employment tribunals it was contained in a mix of the Act and the Regulations, he had nothing to assist him in any such distinction, and we are wholly unpersuaded by it. It was only by reference to what he called public policy that he could justify our reaching a different decision. We have already stated earlier in this judgment that we sympathise with what he characterises as this public policy, and we would not in any way wish this judgment, or the judgment of the Court of Appeal in de Haney , to encourage any litigant employee or employer to feel that they have a supporter or a partisan judge on their side, sitting on the tribunal.

[25]What he points out is that the consequence of de Haney for the Employment Appeal Tribunal would be, at worst, that an appeal would have to be re-listed. If an event occurred reducing the Tribunal from three to two in the course of a hearing, the longest appeal would last some two weeks – we actually know of only one appeal which has lasted that kind of period in recent years – and almost all appeals last a day or less. Normally therefore little time would be wasted. In the employment tribunals, however, such a situation could have grave consequences if, for example, as is sometimes the case, Tribunal hearings have continued for many months. Sometimes that is because the hearings themselves take that many days, sometimes it is because there have to be, for whatever reason, breaks in the hearings and re-constitution of the same tribunal, weeks or months later. It is certainly in our experience that there have been tribunal hearings, regrettable though that may be, which have lasted well over a year.

[26]Mr Sheridan submits that any situation which would encourage a party in such a case to withhold consent to a continuation of a case that had already run some ten or twelve months should be avoided if at all possible. We agree, and we hope that this would not arise. Indeed, this may be an occasion for us to indicate to the administration of employment tribunals that, if a case is estimated to last over a lengthy period, not only the availability but also the health of members of the tribunal should be considered before appointment to that tribunal is made.

[27]However, it appears to us that the position is no different, even if this additional factor of the requirement, regrettable though it may be, to disclose the panel from which the tribunal members come is now added to the information that is required to be given, before informed consent to continue with a two-member tribunal can be obtained from a litigant in an employment tribunal. If a case has gone for ten months or so, and the event occurs of one of the members falling out, by that time it may well be that, once consent comes to be sought, the appreciation of each litigant as to how the case has gone, or as to which members of the tribunal are or are not apparently favourable to that litigant, may by that time be much more influential in any decision to grant or withhold consent than the panel from which the particular member was originally drawn.

[28]There is no provision in the legislation for withholding of consent to be challenged, or overridden, on the basis that such withholding of consent is unreasonable. We see no reason to conclude that the addition of this extra piece of information will in fact lead to any more withholdings of consent than might or might not occur at present. We have no idea how often this event occurs – we hope it is rare – of a three-member panel unfortunately having to be slimmed down to two in the course of a hearing. Further, and in any event, Mr Thomann points out that there will be the same kind of inhibitions, which indeed this Applicant felt in this case, namely the desire to have the matter tried speedily rather than to start again, and, in many cases, the impact of the expenditure of costs.

[29]We do not believe that public policy arises to create a distinction between the impact on the Employment Appeal Tribunal and on employment tribunals of the effect of adopting the policy laid down by the Court of Appeal in de Haney for the obtaining of informed consent.

[30]Finally, Mr Sheridan submitted that, arising out of the particular facts of this case, there was some kind of waiver, or, as he put it, abuse of the process, by reference to the Applicant's position here, in effectively having what he described as a second bite of the cherry, by first consenting to the case continuing and then, once she failed, having the second chance to seek, by way of an appeal, a re-hearing, rather than having opted for that course to begin with.

[31]On any basis, it is clear that both sides have suffered prejudice as a result of the fact that, in August 2003, the case proceeded to a Decision, rather than what is now going to happen, namely a remission in late 2004, no doubt to be reheard as soon as possible, but still not much earlier, we suspect, than January 2005. We do not consider that there is any question here of waiver or abuse of the process. Neither side, nor the Tribunal, knew or could have known of the decision in the Court of Appeal in de Haney , which was not made until 27 October 2003, and was not published until considerably after that, when the material events here, of course, occurred in July 2003. The Applicant tried to find out more, and was unable to do so; and the fact that, particularly in her desire to avoid any further delay, and without any knowledge of the Decision in de Haney , she elected to allow the hearing to proceed cannot be held against her.

[32]If it had been the case that the appeal was based on a manifestly erroneous allegation of law, for example, that a section of a statute applied, or did not apply, which argument could be seen in a moment to be bad, and which no tribunal, however constituted, could have resolved other than in the way it did, then we would still have been open to a submission that, notwithstanding the serious irregularity in relation to the composition of the tribunal, there would be no point in sending the matter back to a different tribunal, since the result would be inevitable.

[33]However, in this case, it is apparent that, whatever might otherwise have been the strength of the appeal, the Appellant does have arguments that the Decision was or may have been perverse, to which the Respondent naturally responds with the contention that perversity is an extremely difficult principle to establish, and that the facts are ordinarily left to the employment tribunal to decide, as the industrial jury, and that the Employment Appeal Tribunal should not interfere. But it is just such a case which emphasises the point that Mr Thomann has made by reference to Scanfuture v Secretary of Trade and Industry

[2001] ICR 1096

, namely that the Employment Appeal Tribunal, being restricted to an appeal on the point of law, cannot put right any flaw in the tribunal which heard the evidence in those circumstances; or, put another way, we are not entitled to leave in place the conclusions of fact of an irregularly constituted tribunal, and not entitled to decide that any correctly constituted tribunal would be bound to come to the same conclusions on the evidence.

[34]In those circumstances, we have no alternative, reluctant as we obviously are, from all points of view, to remit this to a different tribunal for re-hearing, now so long after the original events of 2002, but to make such an Order. We hope that such a tribunal hearing can be constituted expeditiously and that now that the issues have been so fully canvassed between the parties, it may be possible to try and narrow them, and to agree at any rates some of the issues or the evidence, so as to restrict the evidence before the fresh tribunal to matters which are genuinely in dispute.

[35]In the future, it would therefore be sensible at the employment tribunal for the form to be signed by the parties, giving consent to a case, commencing or continuing before a panel of two rather than three, to be signed before such commencement or continuation. It should contain an express reference to the identity of the Chairman and one member who will try or continue to try the case, with a statement of the panel, as described in Regulation 5(1)(b) or 5(1)(c), from which that member is drawn.

[36]In those circumstances, this appeal is allowed and the matter is remitted to a differently constituted Tribunal to re-hear the case. We would conclude by thanking Counsel for the amount of work that they put into their full and interesting arguments.