A v B [2009] UKEAT 0421_08_1007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0421_08_1007Case No Appeal No. UKEAT/0421/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AAPPELLANTBRESPONDENT
Before
Mr Justice Keith Mrs R Chapman Mr D NormanDate 10 July 2009
[1]APPEARANCES For the Appellant MS ALISON RUSSELL (of Counsel) (appearing via the Bar Pro Bono Unit) For the Respondent MR NIRAN DE SILVA (of Counsel) Instructed by: Messrs Berrymans Lace Mawer Solicitors Salisbury House London Wall London EC2M 5QN SUMMARY PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity JURISDICTIONAL POINTS Worker, employee or neither(1) Whether the Employment Tribunal addressed all the relevant issues which arose on the question whether the Claimant's claims against the Second Respondent were amenable to the jurisdiction of the Employment Tribunal.(2) Whether the Claimant had managed to get across to the Employment Tribunal all, or just some, of the features of her claim.(3) Whether the Employment Judge behaved in such a way that a fair-minded and informed observer would think that there was a real possBlity that he had declined to engage with the issues which the case raised. THE HONOURABLE MR JUSTICE KEITH Introduction This is an appeal in respect of which a restricted reporting order under rule 23 of the Employment Appeal Tribunal Rules has been made. The Claimant, whose appeal this is, was ordered to be referred to asa. A. There were two Respondents to the Claimant's claim, but the Employment Tribunal held that the Second Respondent had not been properly joined to the proceedings. The Employment Tribunal accordingly discharged the Second Respondent from the case, which meant that the Employment Tribunal was dismissing the claims which the Claimant had brought against the Second Respondent. This appeal is against the dismissal of those claims. The Second Respondent, which is the only Respondent to the appeal, was ordered to be referred to asb. B. In the course of this judgment, it will be necessary to refer to the First Respondent against who the Claimant makes similar claims. It will be referred to asc. C. The identities of A, B and C are contained in a confidential annex to this judgment. References in this judgment to pages of "the bundle" are references to the bundle of documents prepared for this appeal. And references in this judgment to "the transcript" are references to a transcript of the hearing in the Employment Tribunal which A prepared from a recording of the proceedings which she made with the permission of the Employment Tribunal. Only selected passages of the transcript have been produced by her.[2]Up to the hearing of this appeal, A represented herself. She drafted the claim form, as well as her witness statement, various letters and other documents. Unsurprisingly, they were not drafted as crisply as might have been expected of a lawyer, and she has an unfortunate tendency to write at such length that there is a real danger that the reader of the documents she prepares might lose sight of the wood for the trees. For example, it was not clear to us whether the complaint she makes of action being taken against her because she made a protected disclosure was being made against C or B or both of them, and although it was possible to identify the acts of discrimination which she was alleging, it was difficult to tell which acts she was alleging against C and those which she was alleging against B. However, it is now apparent to us (whether it was apparent to the Employment Tribunal or not) that A's claims against B included claims which incorporated(i) either (a) a complaint of unfair dismissal, or (b) a complaint that her dismissal was automatically unfair because the reason for it had been because she had made a protected disclosure, or (c) a complaint that she was subjected to a detriment short of dismissal for making that protected disclosure, and(ii) complaints of discrimination (including discrimination by way of victimisation and harassment) on the ground of her sex (because she was a woman), or gender reassignment (because she was undergoing treatment to reassign her gender from a man to a woman), or sexual orientation (because she was perceived as a gay man), or as a disabled person (because she suffers from dyslexia).[3]The basis on which the Employment Tribunal dismissed A's claims against B was that A had never had a status with B which made her claims against B amenable to the jurisdiction of the Employment Tribunal. One of the issues which this appeal raises relates to how A actually put her case in the Employment Tribunal on the issue of the Employment Tribunal's jurisdiction. The hearing in the Employment Tribunal - which was a pre-hearing review to determine, amongst other things, whether A had ever had a status which made her claims against B amenable to the jurisdiction of the Employment Tribunal - lasted for four days, and we have had to scour through a large number of documents to get some idea of the case which A was advancing.[4]Having said that, Ms Alison Russell for A says that A advanced a number of different bases in the Employment Tribunal for her assertion that her status was such that her claims were amenable to the jurisdiction of the Employment Tribunal. For reasons which will become apparent in due course, it is not necessary to identify how she claimed the Employment Tribunal could consider her complaint about the discrimination of her as a disabled person. But for her complaint of unfair dismissal, her status was said to be that of an employee of B within the meaning of sections 230(1) and 230(2) of the Employment Rights Act 1996 ("the ERA") on the basis that she was working for B under either a contract of service or a contract of apprenticeship. For her complaint of unfair dismissal, or of being subjected to a detriment short of dismissal, for making a protected disclosure, her status was said to be that of a worker within the meaning of section 230(3) of the ERA or within the extended definition of worker in section 43K(I) of the ERA. For her complaints of discrimination on the ground of her sex, her sexual orientation and her gender reassignment,(a) her status was said to be that of an employee in the light of the definition of "employment" in section 82(1) of the Sex Discrimination Act 1975 ("the SDA") on the basis that she had been employed under a contract of service or an apprenticeship,(b) she was said to be "receiving vocational training" within the meaning of section 14(1) of the SDA, and(c) insofar as she was an employee of C, the acts of discrimination by C were said to have been done by C as agent for B with B's authority, and those acts were to be treated as those of B in view of section 41(2) of the SDA. And for all her complaints, her contractual relationship with B was said to be such that, in the light of the discussion about triangular arrangements involving staff supplied by an employment agency in Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437 , her status was said to be such as to render her claims amenable to the jurisdiction of the Employment Tribunal ("the Dacas issue").[5]For its part, it is contended on B's behalf that the only basis (apart from a tripartite employment arrangement of the kind described in Dacas ) on which it was asserted that the Employment Tribunal had jurisdiction to consider her claims of discrimination under the SDA was her claim to be an employee in the light of the definition of "employment" in section 82(1) of the SDA. She did not assert, so it is said, in the Employment Tribunal any argument based on sections 14(1) or 41(2) of the SDA. The core facts[6]The core facts which the Employment Tribunal found which are relevant to the outcome of the appeal can be shortly stated. From 1 October 1998 A was a research student in the Biochemistry Department of B, a university. She was on a PhD course. Her work was funded by a research council. On 6 June 2003 she submitted her thesis, and she was awarded a PhD on 20 February 2004.[7]In the meantime, A had been offered - on 18 October 2001 - a post-doctoral position with C, another research council. The position, which was to last for three years, was due to start on 1 May 2002, though the commencement date was delayed, and she took up that position on 2 January 2003. It has always been agreed that in that position she was an employee of C. Her contract of employment with C was renewed on its expiry on 1 January 2006 for a further year, but on 15 June 2006 she was informed by C that it would not be extended beyond 1 January 2007. 8. In the meantime, A had issued proceedings against B in the County Court on 4 August 2006. The claims were for discrimination (including discrimination by way of victimisation and harassment) under both the Disability Discrimination Act 1995 ("the DDA") and the SDA, as well as harassment under the Protection from Harassment Act 1997 (wrongly referred to by the Employment Tribunal as the Prevention of Harassment Act). These claims stem from what she claimed was the homophobic and other offensive ways she had been treated while at B, including the way she had been treated after she had raised a grievance under the Student Grievance Procedure on 28 September 2004. Since these claims were in the County Court, they relate to discrimination in fields other than the employment field. B does not dispute that these claims are amenable to the jurisdiction of the County Court, and no doubt they will have to be tried sometime, if they have not been tried already.[9]In addition, on 16 October 2006 A raised a grievance with C. That grievance related to' the homophobic and other offensive ways she had been treated while employed by C. That grievance was rejected on 15 October 2006, and A was suspended because it was alleged that in the build-up to the determination of her grievance she had intimidated witnesses and taped various conversations covertly. She was eventually cleared of all those allegations. The Employment Tribunal's judgment[10]Having set out its findings of fact, the Employment Tribunal listed the authorities to which it had been referred, and then summarised the various submissions which had been advanced to it on the three issues which had to be addressed: whether the claims against B were amenable to the jurisdiction of the Employment Tribunal, whether the claims which A was bringing against C for disability discrimination or making a protected disclosure should be dismissed pursuant to section 32 of the Employment Act 2002 because she had not previously raised a grievance about them, and whether she should be given permission to amend her claim form. The Employment Tribunal then proceeded to set out its conclusions. The part of the judgment which contained its conclusion (and such reasons as it gave for that conclusion) that none of A's claims against B were amenable to the jurisdiction of the Employment Tribunal is set out in para. 52, which reads:
"The unanimous judgment of the Tribunal is that B is not properly joined to the proceedings"
. A never enjoyed any status relating to B that would make her amenable to the jurisdiction of this Tribunal A was a PhD student, no more and no less, in the course of the time that she was studying for her doctorate at B. For that relevant period she is, no doubt, pursuing relevant complaints within the jurisdiction of the County Court. All the evidence in this case, which might be regarded as being reliable and corroborated by appropriate documentary material, points clearly to the fact that, after 2 January 2003, A became an employee of ICI and nobody else. All the characteristics of an exclusive contractual relationship have been established within the body of the evidence. The only mutuality of obligation that existed during the material time that we have to consider existed between C and A to the exclusion of B. The Tribunal does not seek to set out a reprise of the learned submissions of [counsel for C and B]. Suffice it to say for these purposes that, on the evidence and an appropriate consideration of the authorities, A has not satisfied us, nor indeed begun to satisfy us, that B is a properly joined party, given the findings of fact that we have made and the application of the law, the learning and the authorities that have been cited to us."[11]The core criticism of the Employment Tribunal is that in this passage the only issues which it addressed were whether A had been exclusively employed by C, or whether she had also been working for B, under a contract of employment. Those are the issues to which the Employment Tribunal's references to "an exclusive contractual relationship" with C and "mutuality of obligation" related to. No challenge is made to the finding that she had only been employed by C under a contract of employment, but Ms Russell's criticism of the Employment Tribunal is that, if para. 52 of the Employment Tribunal's reasons is anything to go by, the Employment Tribunal did not address any of the other bases on which her status as someone whose claims against B were amenable to the jurisdiction of the Employment Tribunal were advanced. The Employment Tribunal did not address(a) whether she had worked for B under a contract of apprenticeship,(b) whether she could have been classed as a worker for B, and(c) whether she had been receiving vocational training from B. In addition, the Employment Tribunal is criticised for not addressing whether any of the acts of discrimination alleged against C had been done by C as agent for B with B's authority.[12]Mr Niran de Silva - who represented B on the hearing of this appeal as well as at the pre-hearing review - was not able to concede that these criticisms were well-founded. But he did not advance any contentions to the contrary, and he acknowledged that B had itself been dissatisfied with the form of the judgment (if not the outcome of the hearing) - presumably because the Employment Tribunal had not expressed its own view on the correctness of the submissions advanced by Mr de Silva on the topics which Ms Russell says the Employment Tribunal did not address. We understand Mr de Silva's position entirely, but although the Employment Tribunal summarised at some length the submissions on at least some of these issues, we cannot be satisfied that the Employment Tribunal did indeed actually address the issues which Ms Russell contends it did not address. The fact that it gave reasons - albeit very pithily - for its conclusion that A had only been employed by C under a contract of employment, but did not give its reasons for its implicit conclusions on the other issues which concerned A's status as someone whose claims against B were amenable to the jurisdiction of the Employment Tribunal, strongly suggests that the Employment Tribunal did not address those issues.[13]We have thought long and hard about whether it would appropriate for us to stay the appeal and to invite the Employment Tribunal, pursuant to the procedure sanctioned by the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633 and now codified in para. 9.5 of the Practice Direction (Employment Appeal Tribunal- Procedure) 2008,(a) to state whether it had addressed the issues which it is claimed it did not, and(b) if so, to give its reasons for its implicit conclusions on those issues. But we have concluded that it would not be right to take that course for two reasons. First, to use the language of Dyson LJ in Barke at para. 46, "the inadequacy of [the Employment Tribunal's] reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision". Secondly, again to paraphrase the language of Dyson LJ in para. 46, there is a danger that the Employment Tribunal "might tailor its response to a request for ... [its] reasons ([albeit] subconsciously rather than deliberately) so as to put the decision in the best possible light". Our judgment is that these risks in the present case outweigh the possible benefit to be derived from a response to such a request.[14]We have no alternative, therefore, but to proceed, subject to one important reservation, on the basis the Employment Tribunal did not address these issues. What should be the effect of that? Mr de Silva contends that the decision of the Employment Tribunal that A's claims against B were not amendable to the jurisdiction of the Employment Tribunal, to use the language of Sir John Donaldson MR in Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 at p. 818F-G, was "plainly and unarguably right". Since it cannot possibly be said, on the findings of fact which the Employment Tribunal made,(a) that A had worked for B under a contract of apprenticeship, or(b) that A could properly be classified as a "worker" for B, or(c) that A had been receiving vocational training from B, or(d) that any of the acts of discrimination alleged against C had been done by C as agent' for B with B's authority, A's appeal can properly be dismissed even if the Employment Tribunal did not address those Issues.[15]We have to say that this is one step too far. It is important to remember exactly what Sir John Donaldson said in Dobie :
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."
So the Employment Appeal Tribunal's power to dismiss an appeal, even though the Employment Tribunal has gone wrong, on the basis that its ultimate decision was plainly and unarguably right, is, on the face of it, limited to those cases in which there has been a misdirection on the part of the Employment Tribunal. This is not such a case. It is not as if the Employment Tribunal addressed the relevant issues, but reached decisions on them by a process of reasoning which was legally flawed. This was a case in which we have to proceed on the footing that the Employment Tribunal simply did not address the relevant issues at all. We are not saying that in such a case it will never be appropriate for the Employment Appeal Tribunal to dismiss an appeal on the basis that the Employment Tribunal's ultimate decision was plainly and unarguably right. But this was a case in which the factual and legal issues which were raised were complex, warranting the retention of leading counsel (for C), and lasted a number of days. In particular, it was a case in which we cannot be sure - for the reasons which we shall come to - that all the relevant facts had been found by the Employment Tribunal. In these circumstances, we doubt whether we could fairly reach the conclusion that the Employment Tribunal's ultimate conclusion was plainly and unarguably right.[16]The one reservation relates to what is alleged to be the Employment Tribunal's failure to address whether A had been receiving vocational training from B and whether any of the acts of discrimination alleged against C had been done by C as agent for B with B's authority. It will be recalled that B contends that no argument was advanced by A at the pre-hearing review on sections 14(1) and 41(2) of the SDA which would have raised these issues. If that is correct, the Employment Tribunal could not have been expected to address those issues. It is to those two issues that we now turn, though before doing so we ought to say something about A's claim of disability discrimination. A's claim of disability discrimination[17]A undoubtedly made a claim of disability discrimination: she ticked the box marked "Disability" in para. 6.1 of the ET1. But there is no reference to any disability - let alone to disability on the basis of her dyslexia - in the particulars she gave in the ET1 of her claims of discrimination, nor any statement whether she was alleging disability discrimination against C or B or both of them. A claims that she was intending to, but that she completed her ET1 on line, and she had used up all the available space on the ET1 setting out the acts of discrimination of which she complained before she had got round to explaining the basis of her claim of disability discrimination. Completing her ET1 on-line did not give her the option, she said, of completing further pages. She mentioned her claim of disability discrimination at a case management discussion on 2 November 2007, and following that discussion she was ordered to provide C and B with a schedule particularising the whole of her case. Typical of the documents which A produces, she filed a schedule which, with accompanying text, was 62 pages long, setting out in chronological order the events which she regarded as pertinent to her claim. This schedule referred to events which she claimed amounted to disability discrimination - though, again, it is difficult to see whether the acts which constituted the discrimination were-alleged to have been committed by C or by B, and nowhere in the schedule (though we stand to be corrected on this) did she refer to her disability as dyslexia.[18]At the pre-hearing review, it was argued on behalf of C and B that, to the extent that the schedule contained causes of action which had not been referred to in the ET1, A needed the permission of the Employment Tribunal to amend her ET1 if she was to be able to rely on those causes of action subsequently. The Tribunal refused A permission to amend her ET1. That decision is not challenged on this appeal. The reasons the Employment Tribunal gave show that permission to amend was refused, not on the basis that it was not needed because the causes of action had been referred to in the ET1, but on the basis that they introduced "a large number of fresh causes of action which date back over a substantial period of time", and that it was "not in the interests of justice to allow such significant amendments". That is the reason why her claim of disability discrimination cannot be pursued, and why no submission has been advanced by A or on her behalf that tor her complaint of disability discrimination against B, her status was that of an employee in the light of the definition of "employment" in section 68(1) of the DDA. The two claims which B contends were not argued in the Employment Tribunal[19]Vocational training. Sections 14(1) and (IB) of the SDA provides:
"(1) It is unlawful, in the case of a woman seeking or receiving vocational training, for any person who provides, or makes arrangements for the provision of, facilities for vocational training to discriminate against her- (a) in the arrangements that person makes for the purpose of selecting people to receive vocational training, (b) in the terms on which that person affords her access to any vocational training or facilities concerned with vocational training, (c) by refusing or deliberately omitting to afford her such access, (d) by terminating her vocational training, or (e) by subjecting her to any detriment during the course of her vocational training. (18) In this section 'vocational training', in relation to a woman, includes (if it would not otherwise do so) any training which would help fit her for any employment."
A claims that she argued, both in documents which she tiled with the Employment Tribunal and orally at the pre-hearing review, that (a) she had been receiving vocational training from B, and (b) B had been providing facilities for vocational training to her. Her factual case was that as a research student she was collaborating with others in conducting research in the Biochemistry Department of B in addition to working on her doctoral thesis, and that the process of watching others at work which collaborative research entails amounted (a) to training, and (b) to training of the kind which would help her to obtain employment - presumably in any scientific field which involved research. This is not the language which A used, but it is the gist of how Ms Russell characterised what A's case in the Employment Tribunal had been.[20]There is no doubt that A described the course which she was on at B as a "vocational training course": see page 6 of her witness statement (page 250 of the bundle), page 3 of the transcript of parts of her cross-examination by Mr de Silva (page 294 of the bundle), and various entries in her schedule (pages 460, 462 and 510 of the bundle). However these references are meaningless without A having linked them to section 14 of the SDA. The fact that she made passing references to her course involving vocational training in the course of a very large number of documents and in response to one question in cross-examination would not have begun to alert the Employment Tribunal that A was alleging that the fact that she was receiving vocational training from a body which was providing facilities for vocational training and would help her to obtain future employment gave the Employment Tribunal the jurisdiction to consider her claims of discrimination under the SDA.[21]There is another document on which reliance was placed. We do not know what the document is because only two pages from it were produced. They are at pages 55 and 56 of the bundle. On page 56 there is a reference to the need to "provide all the facilities, equipment, materials and services necessary for the training of the student". In our judgment, this would have added nothing to the Employment Tribunal's understanding of the case, because it did not refer to vocational training.[22]The only document in which section 14 of the SDA was referred to was A's closing written submissions. But it was not mentioned in the body of those submissions (nor indeed was vocational training at all). It was referred to on the last page of the submissions. This did not form part of the submissions, but was an additional document setting out various statutory provisions. We have been provided with two versions of that page. One is at page 351 of the bundle (which A says was the document produced to the Employment Tribunal). Another was handed to us in the course of the hearing (which A says was an earlier draft which was sent to the Employment Tribunal and the other parties before the hearing). The one at page 351 gives the reference to section 14 greater prominence because it is at the top of the page, whereas the one handed to us has the reference to section 14 at the bottom of the page. But either way, the reference to section 14 is entirely tangential. The page sets out verbatim the text of sections 41(1),41(2) and 63(1) of the SDA, but adds the following words:
"Part 11 is section 6-21 of the SDA and so included 13- Qualifying bodies and 14- persons concerned with vocational training."
One of the documents then goes on to refer to section 15.[23]We can see, with the advantage of hindsight, that this page was intended to show that section 14, among others, was included in Part 11 of the SDA which relates to discrimination in the employment field. But we do not believe that anyone would have appreciated that the reference to section 14 was intended to link up to the references to vocational training in the documents which the Tribunal had - especially as no reference was made to vocational training in A's closing written submissions. All in all, we are left in no doubt that A completely failed to get across to the Employment Tribunal that section 14(1) of the SDA gave the Employment Tribunal jurisdiction to consider her claims of discrimination under the SDA against H, and the Employment Tribunal could not have been expected to address them. That would explain why the Employment Tribunal made no findings whatever about any training A may have received or whether the research which collaborative research entails amounted to training of the kind which would help her to obtain employment.[24]We should add two things to that. First, A also referred to the course as a vocational training course in the document at pages 1980-1 in the bundle, but that document can be ignored for present purposes because it came into existence only after the pre-hearing review: it was prepared by A pursuant to an order made by Judge McMullen QC on 20 February 2009 that A identifies "where in the evidence, the Schedule and the submissions" her claims under sections 14(1) and 41(2) of the SDA were made. Secondly, A claims that she orally referred to section 14 in her closing submissions, but she cannot prove that because her oral closing submissions were not recorded. We note what she says, but we wonder whether she would have mentioned it bearing in mind that her written closing submissions did not. However, even if she did mention it, it all depends on the context in which she did so, and without knowing what the context was, we can give very little weight to it.[25]Had this issue been considered - and considered properly - by the Employment Tribunal, we doubt whether it would have been found that it gave the Employment Tribunal jurisdiction to consider the claims of discrimination under the SDA against B. On the face of it, her vocational training - if that is what it was - would be regarded as having probably ended when she completed her thesis, and certainly when she was awarded her PhD. Although she claimed in the course of her oral evidence in the Employment Tribunal that the Biochemistry Department was still sending her training record manuals in August 2006, she would no longer have been a student after getting her PhD, but someone doing research for C (the fruits of which B might well have shared in), albeit in B's Biochemistry Department. That would have raised a significant issue about whether her complaint had been presented in time. In any event, it is at least arguable that vocational training is training which equips you for a particular calling, in the sense of a particular profession, rather than training which merely improves your skills, such as your research skills. But all this is beside the point. It was not an issue which the Employment Tribunal could have been expected to address, and it would not be right in the circumstances to require the Employment Tribunal to address it now.[26]Principal and agent. Section 41(2) of the SDA provides:
"Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him."
If B is to be foisted with liability to A for any acts of discrimination by virtue of this section, A's case has to be that C discriminated against A, but that in doing so C was acting as B's agent with the authority of B. Accordingly, it is claimed on A's behalf that she had argued, both in documents which she filed with the Employment Tribunal and orally at the pre-hearing review, that when C discriminated against her C was acting as B's agent with the authority of B. That is not how the Employment Tribunal understood her argument. Para. 40 of the Employment Tribunal's reasons shows that it thought that A was saying that B had been C's agent, not the other way round. Indeed, that was Ms Russell's original understanding of A's case: see para. 18 of her skeleton argument.[27]Like the issue of vocational training, the documents referred to the issue of a principal's liability for the acts of their agent in general terms only: see, for example, pages 1 and 8 of A's witness statement (pages 245 and 252 of the bundle) and para. 66 of her closing written submissions (page 349 of the bundle). However, section 41(2) was one of the sections of the SDA which A reproduced verbatim at the end of her closing written submissions at page 351 of the bundle. Indeed, the Employment Tribunal's reasons refer in para. 8 to leading counsel for C addressing the issue of "principal/agent". But if the documents are anything to go by, A never explained what her case on the issue of agency was. Whatever impression the Employment Tribunal may have got, she never actually said whether it was B who had discriminated against her, but that B had done so as C's agent on C's authority, or whether it was C who had discriminated against her, but that C had done so as B's agent on B's authority. Nor did she even say how the relationship of principal and agent between C and B or between B and C actually arose, so that one was acting with the authority of the other when it discriminated against A under the SDA. Indeed, the Employment Tribunal's reasons record leading counsel for C making that very point:
"...counsel for C submitted that it was notable that A did not identify which of the two parties was alleged to be the principal and which the agent in the context of this case."
A says that she made it clear orally what her case was at various times, but none of the transcripts produced by A have borne that out either.[28]It is said on A's behalf that at the pre-hearing review Mr de Silva actually conceded that from the time that A had ceased to be a research student in 2004 until 2006 she had been able to bring a claim of discrimination under Part IV of the SDA. Since section 41(2) of the SDA is in Part IV of the SDA, it is said that B was acknowledging through Mr de Silva that section 41(2) enabled A to bring her claims of discrimination under the SDA against B.[29]We reject that argument, but to understand why it is necessary to set out the whole of the exchange between Mr de Silva and the Employment Judge. The transcript at page 335 of the bundle reads, under the heading "De Silva conceding Part IV for period 2004-6": De Silva: The claimant is able to bring a claim under Part IV as are all postgraduate students. But there is nothing in the way the legislation is structured to suggest that postgraduate students should be entitled to bring claims in the Employment Tribunal in the way contended for by the claimant and I reiterate the point made by my learned friend, the consequences of that would be enormous. Judge: Can I just stop you there just so I can be quite clear about it. Is your argument specifically this? No-one is driven from the judgment seat because they are in education because parliament in its wisdom took a particular view and made specific provision for education,• .• for those in education to the County Court as opposed to the employment tribunal because they are not in employment? De Silva: Yes Sir that is precisely the point I am making." What emerges from this exchange is that what Mr de Silva was conceding was that any claims of discrimination under the SDA against B could be brought in the County Court as claims in the field of education - as indeed A had done. What Mr de Silva was saying only makes sense if the reference to Part IV was treated as a reference to Part III, because it is in Part III of the SDA (sections 22-27) that discrimination in the field of education is addressed. Indeed, Mr de Silva says that he did not say "Part IV". He is sure he said "Part III". But if he mistakenly said "Part IV", he meant to say "Part III". We have not thought it necessary to listen to the recording ourselves, because even if Mr de Silva said "Part IV", it is plain from the context that he was actually referring to Part III.[30]For these reasons, we are left in no doubt that A never made it clear that her case was -if indeed it ever was - that B was liable for C's discrimination of her under the SDA, or that C had been acting as B's agent on B's authority when it discriminated against her. Because her references to "principal/agent" were entirely non-specific, we do not see how the Employment Tribunal could have been expected to address the issue. Indeed, because section 41(2) was only referred to in that part of A's submissions in which she set out without any commentary the statutory provisions on which she relied, we entirely understand why the Employment Tribunal thought (see para. 40 of its reasons) that the references to "principal/agent" related to the Dacas Issue.[31]In the interests of completeness, we should add that we have not been able to discern anything in those of the Employment Tribunal's findings of fact which relate to the relationship between B and C which could foist liability on B for C's discrimination of A under the SDA pursuant to section 41(2). But it would not be right for us to give effect to that view because the Employment Tribunal presumably only made the findings of fact which it needed to make in the light of what it thought the issues were, and there may have been other findings of fact which it would have made if A had managed to get across to the Employment Tribunal what it is claimed she was trying to get across to them about the effect of section 41(2). It is sufficient for us to state that the issue of B's liability for C's acts of discrimination was not made sufficiently clearly - if at all - for the Employment Tribunal to have been expected to deal with it. The two claims which A argued[32]It is accepted by B that(a) for the purpose of whichever claim A was making for having made a protected disclosure, A argued that she was a worker for B within the meaning of section 43K(1) of the ERA, and possibly under section 230(3) of the ERA, and(b) for the purpose of her claims of discrimination under the SDA, A argued that she had been employed under a contract of apprenticeship within the meaning of section 82(1) of the SDA. These are the only claims which are still to be addressed on a remission of this case to the Employment Tribunal. Since the Employment Tribunal has to consider them, it would not be right for us to comment on them.[33]However, although there is nothing which it would be appropriate for us to say about whether A had been employed by B under a contract of apprenticeship, it may be helpful for the Employment Tribunal if we summarise what A says her case was on whether she was a worker for B. The work which she claims she did which made her a worker for B was as follows:(i) From 1998 onwards, she supervised undergraduate students in the Biochemistry Department.(ii) From 1998 onwards, she was responsible for various functions relating to health and safety in the Biochemistry Department.(iii) After getting her PhD in 2004, the research which she undertook for C was for the benefit of B as well. It is not clear to us whether her case was put by her in the Employment Tribunal in precisely that way, but B's case on these claims (as we understand it) is as follows: (i) A did not supervise students at all. For a period of eight weeks at the beginning of 2002 she conducted demonstrations for a total of 20 hours, for which B paid her £144.00. That was what the Employment Tribunal found. (ii) Such health and safety functions as A carried out were functions which she had voluntarily assumed. The Employment Tribunal did not make any findings about A's health and safety functions at all. (iii) None of the research work which A did after getting her PhD was done for the benefit of B. The Employment Tribunal did not make any findings at all about whether A's research work was done for the benefit of B as well as for C. Unless A's case is put otherwise on the remission of this case, these are the topics on which the Employment Tribunal's attention should be focused. The allegation of bias[34]A claims that the Employment Judge behaved in such a way that a fair-minded and informed observer would think that there was a real possBlity that A had irritated him so much that he had effectively "switched off and had declined to engage with the issues which the case raised. That had resulted in him failing to consider A's letters prior to the pre-hearing review in which she had in effect applied for orders for the disclosure of documents which she claimed she needed in order to establish that she supervised undergraduate students and was responsible for various health and safety functions within the department. Indeed, she wrote so many such letters that there eventually came a time when the Employment Judge decided that there should be "a moratorium on correspondence" from 29 February 2008 "to allow the parties to prepare for the hearing" which was to begin on 10 March 2008. In the event, no order for the disclosure of specific documents was made, though in relation to the principal category of documents which A wanted B to provide - laboratory books - B declined to disclose them on the basis that they were not relevant to any issues which the Employment Tribunal had to decide. The Employment Judge's unwillingness even to consider ordering the disclosure of specific documents resulted in A applying on the first day of the pre-hearing review for the Employment Judge to recuse himself. He refused to do so, and A claims that throughout the hearing she was handicapped in the presentation of her case by not being able to use the documents she wanted.[35]We do not think that the fair-minded and informed observer would have thought for one moment that there was a real possBlity that the Employment Judge was being unfair to A. A was inundating the Employment Tribunal with large numbers of letters and e-mails following the case management discussion on 2 November 2007. Although some of them stated relatively clearly what A wanted, many of them did not, and the fair-minded and informed observer would unquestionably have thought that the best thing to do was simply to let the parties proceed with their preparations for the pre-hearing review, and if A was still concerned that B had not produced documents which were relevant to issues which would be considered at the pre-hearing review, she should raise it then explaining (with precision and succinctness) what their relevance was. That in effect is what the Employment Judge did. 36. The next complaint relates to the Employment Judge's refusal to accept prior to the pre-hearing review a witness statement which A had sent to the Employment Tribunal. At the preliminary hearing of this appeal, A accepted that the reason why the Employment Judge had refused to accept the witness statement was because he had thought that A had not served it on C's and B's solicitors. It is said that the Employment Judge should have realised that it had been sent from an e-mail which A had sent to the Employment Tribunal on 23 February 200S. We do not agree. The e-mail merely referred to the fact that the parties had been ordered to exchange any supplementary witness statements relating to any issue which had arisen since S February 200S. It would not have been possible for the Employment Judge to tell from that e-mail that the witness statement had in fact been sent to C's and B's solicitors.[37]The final complaint is that in the course of the application to recuse himself the Employment Judge acknowledged that he had not read A's letters, that he would not be reading the documents she submitted, but that he would be relying on his lay members, and that he would be dependent on counsel for argument on the law. In fact, the Employment Judge says that he acknowledged that he had not read one of A's letters, and that had been, he thought, because it had not reached him owing to an administrative error. Indeed, A herself acknowledged at the preliminary hearing of this appeal that the Employment Judge had not said that he was not going to read the documents she submitted, and that what the Employment Judge had actually said when he refused to recuse himself was that the two lay members would in effect ensure that he would not be unfair to A. Mr de Silva accepts that the Employment Judge did say something on the lines that he would be looking for counsel's help on the law, but that did not mean that he would not listen to anything which A had to say on it. Again, we do not think for one moment that the fair-minded and informed observer would have thought that there was a real possBlity that the Employment Judge was being unfair to A in any of these exchanges.[38]For these reasons, the allegations of bias on the part of the Employment Judge are dismissed. The nature of the remission[39]Accordingly, this appeal must be allowed, the finding of the Employment Tribunal that A's claims against B were not amenable to the jurisdiction of the Employment Tribunal must be set aside, and the two issues which A raised but which the Employment Tribunal did not address will have to be remitted for consideration by the Employment Tribunal. All that remains is for us to determine the nature of that remission. Should it be to the same Employment Tribunal or to a differently constituted one? We have considered that issue in the light of the guidance in Sinclair Roche and Temperley v Heard [2004] IRLR 763 . The Employment Tribunal's decision was promulgated as long ago as 31 March 200S, and the parts of the Employment Judge's notes which we have seen suggest that it was not his habit to take particularly detailed notes. We are also concerned that if the same Employment Tribunal heard the case and again concluded that none of A's claims against B were amenable to the jurisdiction of the Employment Tribunal, it may appear - in the particular circumstances of this case - that the Employment Tribunal may have been tempted, albeit unconsciously, to find against B so that they could say that they had got it right all along. For these reasons, we have concluded that the remaining issues in the case should be determined by a differently constituted Employment Tribunal. We have identified in [32] what those issues are. We very much regret the inconvenience and expense which this will cause, but we do not think that we have any real alternative. Having said that, the hearing should not last anything like as long as the previous one. The evidence which is relevant to the remaining issues falls within a very small compass, and with proper case management and a recognition by A that brevity and succinctness on her part is what is called for, the hearing should not last longer than a day. It was, we are sure, her prolixity that caused the Employment Tribunal not to engage with the issues which her case raised.[40]A should not regard the setting aside of the Employment Tribunal's decision as a signal that we think that her case on the amenability of her claims against B to the jurisdiction of the Employment Tribunal is a strong one. We have said enough to show that we think that there are significant problems with it, but we say no more for fear of trespassing on issues which are now back in the hands of the Employment Tribunal.