MR S JOHNSON v EDWARDIAN INTERNATIONAL HOTELS LIMITED [2009] UKEAT 1558_08_2307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 1558_08_2307

Case No Appeal No. UKEATPA/1558/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S JOHNSONAPPELLANT

EDWARDIAN INTERNATIONAL HOTELS LIMITEDRESPONDENT

Before

His Honour Judge McMullen

Date 23 July 2009

[1]APPEARANCES For the Appellant MR M PURCHASE (Appearing under the Employment Law Appeal Advice Scheme) SUMMARY PRACTICE AND PROCEDURE Case management On remission to the Employment Tribunal by the EAT, a CMD set out the issues to be heard. The full range of the Claimant's 12 strands of discrimination was not to be determined but only considered as background to two claims. There was no appeal against that agreed order so the full hearing could not be criticised when it did not descend into decisions on all the original claims. There was no evidence that the Jehovah's Witnesses were filming him in the toilet or that the Prime Minister and the Queen were directing judicial decisions. HIS HONOUR JUDGE McMULLEN QC This case makes three short criticisms of an Employment Tribunal judgment. I will refer to the parties as the Claimant and the Respondent. Introduction

[2]It is an appeal by the Claimant in those proceedings, against a judgment of an Employment Tribunal, sitting under the chairmanship of Employment Judge Gumbiti-Zimuto, held over three days in 2008, registered with reasons on 2 December 2008. The Claimant represented himself. Today he has the advantage to be represented by Mr Matthew Purchase, of Counsel, who gives his services under the aegis of the ELAA Scheme. I am grateful to him for his focus on the essential issues. The Respondent at the Employment Tribunal was represented by Counsel.

[3]The Claimant made a substantial number of claims, invoking roughly a dozen jurisdictions in the employment protection canon. The case had a curious diversion, for Employment Judge Hyde imposed a stay when she acceded to an application made by the Respondent that the Official Solicitor should take control of the proceedings, since the Claimant had mental incapacity. He was delusional.

[4]On appeal by the Claimant in person against that order, Underhill J allowed the appeal

UKEAT/0588/07

on 2 May 2008 and set this case back on the rails, which has now reached the buffer before me. It is important to see his reasons as the context in which aspects of this case arise. He quoted from Employment

Judge Hyde's initial reasons:

"The Claimant made repeated references in his claim form to secret video recordings carried out on behalf of the Watch Tower Society; he talked about the Watch Tower Society instigating his dismissal; coming into the Hotel to turn staff against him; spreading rumours about his sexuality; preventing witnesses from assisting him; installing secret cameras in changing rooms and in his room; falsely imprisoning him in a Psychiatric Hospital; and showing the tapes to the then Prime Minister, Tony Blair."

[5]Underhill J dealt with three submissions raised by Counsel for the Respondent which related to the ability of an Employment Tribunal to deal with a person with a mental incapacity. In respect of a submission that there was material to raise a question as to the Claimant's mental capacity but not, it is accepted, to prove that he was mentally incapable, he said this:

"I think that Mr Jupp's first two submissions are very likely correct, though in a case where there has only been legal representation on one side I prefer not to make a definitive decision unless I have to do so. I am less confident about his third submission. I accept that there were ample grounds for the Chairman to suspect that the Appellant was suffering from delusions, but I am doubtful whether that fact by itself is a strong indication of lack of mental capacity to conduct litigation. The courts and tribunals have experience of many litigants with strange beliefs or obsessions which may reflect mental ill-health of one kind or another, but only in extreme cases does the question generally arise of treating them as mentally incapable: mental illness does not necessarily involve mental incapacity. However, I note that the Chairman relied also on her experience of dealing with the Appellant at the hearing, and I am prepared to assume, without deciding, that Mr Jupp's submission is good."

[6]The Claimant is still aggrieved about the way in which this case was handled at the Employment Tribunal. Although he is represented by experienced Counsel this morning, the Claimant (after I had indicated what my decision was to be) sought to address me on the involvement of politicians in judicial decision making. In short, it was his complaint that the Prime Minister, The Right Honourable Mr Gordon Brown PC MP, had directed judicial officers to make the decisions which they did.

[7]The allegation that the Claimant is delusional requires careful attention. The Claimant was once a member of the Watchtower Society of Britain, the Jehovah's Witnesses, but they parted company in 2003 and since then it is his belief that they have decided to wreck his life. They take videos of him in the toilet, and so on, and caused his employers to move against him. He brought proceedings against them. As Underhill J noted, six or seven proceedings in the High Court are currently under way.

[8]In his claim (the subject of the appeal) he contends that the Queen, the Prime Minister and the previous Prime Minister, Mr Tony Blair, together with the Ghanaian High Commission, are also involved in this dispute and controlling judicial decisions. I have seen no evidence of any of them featuring in this dispute, except in the Claimant's mind. With Underhill J, I assume the Employment Judge was right to find the Claimant was delusional.

[9]The outcome of the Claimant's case was that his complaints of race discrimination were dismissed; his claim of unfair dismissal was dismissed but a claim of wrongful dismissal was accepted to be correctly made and the Tribunal made an award in his favour of £372.

[10]The Claimant contends, on appeal, that the Employment Tribunal did not deal with other aspects of his case and so the appeal came before HHJ Serota QC on the papers, who formed this opinion:

"The ET gave a careful and reasoned judgment and correctly directed itself as to the law. The EAT cannot entertain appeals on questions of fact in the absence of perversity and I am unable to determine any matter in the Notice of Appeal that raises a matter of law."

[11]In accordance with rule 3, the Claimant was offered the opportunity to make a fresh Notice of Appeal or to have the matter heard before a judge. He has done both, in sequence, so that, on 12 March 2009, a fresh Notice of Appeal was rejected by HHJ Richardson in the following terms:

"The Employment Appeal Tribunal deals only with questions of law. There is no appeal on questions of fact. I do not think the revised Notice of Appeal raises any arguable ground for appealing on a question of law. Contrary to paragraph 9 of the revised Notice of Appeal, the Tribunal did take cognisance of the breach of the statutory procedure and found the dismissal unfair. I can detect no error of law in the Tribunal's reasoning; in particular the Tribunal properly considered the race discrimination claim must also succeed. I can detect no procedural irregularity in the Tribunal's proceedings."

[12]Dissatisfied with both of those opinions the matter comes before me.

[13]In Haritaki v South East England Development Agency EAT PA/0006/08 (at paragraphs 1 to 13) I set out my approach to Rule 3 and it should be read with this judgment. I hear this case as a fresh application. The question for me is whether there is any ground which has a reasonable prospect of success. In that I differ with Mr Purchase, whose argument to me throughout is that there is an arguable point. In the hands of skilled Counsel like Mr Purchase anything is arguable, but that is not the test and I have described it correctly above. The legislation

[14]Details of the legislation are not important in this case. They are substantive issues relating to various strands of the anti-discrimination legislation on the one hand and unfair dismissal on the other, together with the procedural requirements that an employer must deal with grievances and that a claim to an employment tribunal must be preceded by a relevant grievance, according to the Employment Act 2002 , Dispute Resolution Regulations 2004 . The Claimant's case and discussion

[15]The Claimant was employed as a kitchen porter by the Sussex Hotel, which is part of the Radisson Edwardian Group, in the West End of London. He was dismissed. He raised a large number of complaints about his treatment.

[16]The Claimant is not a person who restricts himself to succinct submissions and his claim form and supporting material extend over some 36 pages. In it he complains variously of discrimination on the grounds of race, religion, sexual orientation, disability. He complains that he has been victimised, harassed and humiliated and that he was unfairly and wrongfully dismissed.

[17]The circumstances leading to his dismissal are not relevant for the purposes of this judgment, in the light of the careful arguments addressed by Mr Purchase.

[18]It is contended that the Tribunal failed to deal with the Claimant's extant claims on the grounds of religious discrimination, sexual orientation and on the grounds of victimisation. Secondly, it is contended that, although the Claimant is not disabled, a point about disability is not to be abandoned. The claim about the absence of written particulars Mr Purchase took no further, except to draw my attention to the issue and to tell me both those last two are not abandoned. What are live, however, are the complaints about discrimination.

[19]In my judgment this matter is resolved in a one-line sentence: this was determined at the CMD, on 8 July 2008, without an appeal. Employment Judge Houghton decided what the issues were to be. Careful consideration was given to the vast number of claims in various jurisdictions that the Claimant was invoking, in the light of the determination of Underhill J that this case should go forward. It is common ground that the Judge identified unfair dismissal and race discrimination as the complaints which were to be pursued.

[20]As to the other matters, the Employment

Judge said this:

"5. The other matters raised by the Claimant in his particulars provided in support of his complaint of unfair dismissal in the Claim Form are agreed to be advanced by way of background to the above complaints and are not advanced as discrete complaints of unlawful discrimination for which a separate remedy is sought. This includes the allegation made by the Claimant that Muslim colleagues attempted to persuade him to convert to the Muslim faith when, it is alleged, they discovered that the Claimant had a Jewish background."

[21]The only other matter was wrongful dismissal and arising out of an amendment which the Claimant sought and which was granted, a claim of wrongful dismissal was included. In the documentation which was originally submitted with the claim, some slight amendments have been put in, otherwise the substance of the claim is as it was.

[22]In my judgment, the other matters raised by the Claimant include all of the issues which I have briefly described, making allegations against the Respondent and, indirectly, the Watchtower Society, in respect of a number of incidents. But these were not to be decided at the Employment Tribunal. The Judge recorded that the matters were agreed , simply to be advanced by way of background not as individual complaints. No issue has been raised before me as to why no appeal was launched about that direction. The tracks for this judgment were laid down by the Houghton CMD and were, I hold, followed faithfully by the Gumbiti-Zimuto three-person tribunal. It was not required to make findings on all of the other allegations in the light of the CMD and that is, therefore, the simple solution.

[23]The second issue raised on appeal is that the Employment Tribunal failed to take account of a grievance which the Claimant had raised. The chronology is important. The Claimant had been the subject of a number of complaints about, principally, his timekeeping and so, on 5 March 2007, the Claimant was invited to a disciplinary meeting. On 6 March the Claimant wrote and made a request. The Tribunal noted that this was for a copy of audiovisual tape. The letter is so headed. The substance and the final note is that the Claimant was appealing to the Respondent to supply him with copies of the audiovisual tapes. These were tapes relating to two incidents about which he was dissatisfied.

[24]On 7 March the Claimant made a complaint about one of his co-workers. The gist of the complaint is that the Watchtower Society were behind the events of the co-worker and the request that the Claimant made was passed on to Darren Carter, head of Security. He said there were no hidden tapes. The relevant manager spoke to the co-worker about the allegations and these were denied and a letter was sent to the Claimant, on 13 March, indicating there were no tapes. The area where the two events allegedly took place were not the subject of security surveillance. So the disciplinary hearing duly continued and the Claimant was dismissed.

[25]The presentation of a grievance is relevant to the claims the Claimant subsequently made. But since the CMD did not leave open claims of sexual orientation and religious discrimination, the issue of a statutory grievance falls away. The consequence for an employer not following a grievance, when a claim is made to an employment tribunal, is for adjustments to compensation and, as far as the Claimant is concerned, he may not raise these matters unless he has previously raised them in a grievance.

[26]In my judgment, as a matter of construction, the letter from the Claimant does not constitute a grievance. The Respondent dealt with it in the way which the Claimant asked as a request for audiovisual tapes, and a manager spoke to one of the co-workers. Even if it were a grievance, it is not relevant to the issues which were to be decided, which were the Respondent's reasons for dismissing the Claimant.

[27]The Employment Tribunal plainly had in mind issues relating to the 2004 regulations (see paragraph 45) and it is true to say that the Employment Tribunal made some criticisms of the Respondent; but none of those is relevant to the issue which it had to decide about which, although the Claimant feels very strongly, no live ground of appeal is before me. There is no basis for an appeal against the judgment in respect of this.

[28]I thank Mr Purchase for his services today and Mr Johnson for adding his points. The application is dismissed. The appeal will be taken no further and is effectively dismissed.