Faleye & Anor v UK Mission Enterprise Ltd & Ors (Practice and Procedure - Transfer or Hearing together) [2010] UKEAT 0359_10_0809

EAT
Faleye & Anor v UK Mission Enterprise Ltd & Ors (Practice and Procedure - Transfer or Hearing together)
[2010] UKEAT 0359_10_0809 · 2010-09-08
[1]The issues raised by this appeal are ultimately quite straightforward but before they can be addressed it is necessary to set out the background, which is unfortunately less straightforward.[2]The First Respondent to the appeal (“UKME”) is a limited company whose purpose is to provide services to various third parties, including in particular a corporate entity known as “the Dubai Office", which provides goods and services to the royal family and government of Dubai. The Second Respondent, Mr Shakeri, and the Third Respondent, Mr Mohammed, are employees of UKME. The Fourth Respondent, Mr Al‑Mansoori, is an employee of the Dubai Office.[3]So far as relevant, employment tribunal proceedings have been brought against the Respondents to this appeal as follows:(1) Mr Olatunji Faleye, the First Appellant, has brought two sets of proceedings in the London South Employment Tribunal. In the first, he names all four of the Respondents to this appeal. In the second he names three of them, the one excluded being Mr Mohammed. The claims are for unfair dismissal, racial discrimination, religious discrimination and sums due. In the first he was initially represented by Doyle Clayton. In the latter set of proceedings, he was initially represented by Dylan Konrad Creolle (“DCK”). DCK at that point also went on the record in the first proceedings. Though there are, as I have said, two claims it will be convenient for the purpose of this judgment simply to refer to Mr Faleye’s "case" in the singular, because no relevant distinction needs to be made (save that mentioned in para. 4 below).(2) Mr Robert Amagua, the Second Appellant before us, has brought proceedings, also in the London South Tribunal, against UKME only, for unfair dismissal and sums due. He was initially represented by DCK.(3) Mr Ejil Mohammed Ali has brought proceedings against UKME in the London Central Tribunal for unfair dismissal and sums due. He was initially represented by Lewis Silkin, but he subsequently transferred his representation to DKC.(4) Mr Talal Alsaes has brought proceedings in London Central against the Fourth Respondent, Mr Al‑Mansoori, and also against the embassy of the United Arab Emirates for unfair dismissal and for sums due. He too was initially represented by DKC. Both Respondents in those proceedings, that is to say the embassy and Mr Al‑Mansoori, have taken a point that they are covered by state immunity. That issue has yet to be resolved. I will refer to cases (1) - (3) as “the UKME cases” and to case (4) as “the Alsaes case”.[4]I should note that on 13 April 2010 a temporary restricted reporting order was made by the London South Tribunal in the earlier of Mr Faleye’s two claims, purportedly pursuant to rule 50 (2) of the Employment Tribunal Rules of Procedure . Such an order was also made on 30 April in both the London Central cases. It is the case of the Claimants in all three cases where an RRO has been made that it should not have been made and that it should be revoked.[5]Mr Faleye and Mr Amagua presented their claims in London South because they worked at UKME's offices in SW11, which is one of the postcodes for which London South is specified as the relevant Tribunal office. Mr Mohammed Ali also worked at the same office, and it appears that his claim was presented in London Central by mistake, Lewis Silkin having wrongly proceeded by reference to the postcode of UKME's head office. Prior to the order which gives rise to the present appeal, he had made an application in the London Central Tribunal to have his claim transferred to London South, though that application had not yet been determined. Mr Alsaes works in Knightsbridge, so his claim was rightly presented in London Central.[6]Although, as will appear from that summary, there was a time at which all the Claimants were represented by DCK, they have comparatively recently come off the record in all cases. Messrs Faleye, Amagua and Mohammed Ali are now represented by an entity called the Law Offices of Ogilvie & Ogilvie Associates (“OA”), who are employment consultants. The position about Mr Alsaes' representation is unclear and I need not seek to resolve it for present purposes.[7]The parties are, and have at all material times been, agreed that the cases of Mr Faleye and Mr Mohammed Ali have sufficient common issues to render it desirable that they be heard together. That means that one or other would have to be transferred between regions; and, as I said, Mr Mohammed Ali had already applied for a transfer to London South for that purpose. The Claimants also say that Mr Amagua's case should be heard with the other two UKME cases. UKME does not accept that, though its objection is not expressed very strongly. But for that question - that is to say, the question of whether the cases belong together - to be determined, it would be necessary for them to be before the same Tribunal, at least for the purpose of that case management decision. As regards Mr Alsaes, it is common ground that the state immunity point only arises in his case; and, further, that if he survives that objection the case still has no sufficient overlap with the UKME cases to make it desirable for it to be heard together with them. There is nevertheless some overlap between the Alsaes case and the UKME cases for at least two reasons - firstly because the issues relating to the RROs may overlap, and secondly because it has been made clear that each of the Claimants will be witnesses in each other's cases. As to the first of those points, the question of whether, as a result of any overlap in respect of the RROs, the applications for them to be revoked should be heard together can again only be determined by a single Tribunal; and of course, if the decision was that they should be, then that issue would itself have to be decided by a single Tribunal. As to the second, even if in the end all or some of the cases will be heard separately, as will be so at least in Mr Alsaes' case, it will be desirable to avoid availability clashes. Those two factors point to the desirability of all four cases at least being case managed together, whatever the eventual outcome as to the hearings.[8]On 8 June 2010 there was a pre‑hearing review in Mr Faleye's case before the Regional Employment Judge, Judge Hildebrand. He was represented by Mr Ogilvie of OA. UKME, Mr Shakeri and Mr Mohammed were represented by Mr Daniel Barnett of counsel, instructed by Sherrards, and Mr Al‑Mansoori was represented by Mr Adam Solomon of counsel, instructed by Russell Cooke. No notice of a PHR had been sent out in the case of Mr Amagua, but he nevertheless attended to support Mr Faleye, as did Mr Mohammed Ali and Mr Alsaes. The issues for the PHR included time points, points about jurisdiction pursuant to the section 32 of the Employment Act 2002 and the question whether the RRO in his case should be continued. In advance of the hearing the Respondents made clear that they wished to contend that Mr Faleye's case should be transferred to London Central, to be heard with Mr Mohammed Ali's, i.e. in practice the reverse application to that which he was making in London Central; and that the RRO issue was best resolved following such transfer.[9]At the hearing the Respondents abandoned the points based on the 2002 Act and agreed that the time issue should be considered at the substantive hearing. The only live question was thus that of transfer. The Judge accepted the Respondents’ application and made an order for transfer to London Central not only in Mr Faleye's case but also in Mr Amagua's. I will return to the circumstances in more detail in due course. The order reads:
“3. On the application of transfer of the case of Mr Faleye 2353449/09 and 231826O/10 and Mr Amagua 2318563/10 to London Central, having established that London Central is prepared to accept the claims, the Tribunal orders that these three claims are to be transferred to London Central. 4. The Tribunal further orders that the Restricted Reporting Order made as a Temporary Restricted Reporting Order on 13 April 2010 in case 2353449/09, is to continue until a further Pre‑Hearing Review or Hearing at which the application is to be considered in these cases and in the other cases proceeding against these Respondents in the London Central Tribunal under case references: 2201237/10 and 2353449/09.”
[10]What is before me is an appeal against that order. The Notice of Appeal was lodged with this Tribunal on 16 June 2010 by OA on behalf of both Mr Faleye and Mr Amagua. In their Respondents' Answers the Respondents, who remain separately represented as they had been below, took a point that the appeal was not properly instituted. However, before me Mr Barnett and Mr Solomon, having been given an indication of my thinking, abandoned that objection, and I need say no more about it.[11]There is some ambiguity in the Notice of Appeal as to whether the appeal was only against the transfer decision, or whether Mr Faleye wished to make a point about the substance of the RRO issue. Mr Ogilvie, who appeared for both Mr Faleye and Mr Amagua before me, made it clear that the former was the case, though he relied on a particular point about the RROs for that purpose.

The Judge gave his reasons for acceding to the Respondents’ application as follows:

“1. The cases of Mr Faleye and Mr Amagua are to be transferred to London Central and the Restricted Reporting Order made in the case of Mr Faleye is to remain in force pending a further hearing in London Central to deal with that Restricted Reporting Order and Restricted Reporting Orders in other cases pending in London Central. 2. It has taken some time to reach that conclusion because I wanted to make contact with the Regional Employment Judge in London Central to ensure that she would accept the cases that I was proposing to transfer to that Region before making that Order. I have managed to speak to her over the lunchtime adjournment and she has confirmed that she is prepared to accept them and it follows that the London Central cases will not be transferred to this Region. 3. The reason I reached a conclusion that that was the correct course of action is a very straight forward one. There are four cases, five claims in fact, in this group. It appears that there is a common thread flowing through all of them. If that is found subsequently to be incorrect then any case that does not have the common thread can be removed from the group. It is the position that one of the cases in London Central has a state immunity point taken in it. There is a body of expertise in London Central Tribunal in relation to state immunity, and it would be wrong, in where there is a preliminary point on jurisdiction taken on state immunity from the London Central Tribunal and bring it to the Croydon Tribunal. 4. It therefore it follows that, as all parties are agreed that the cases should be dealt with in the same place, the most logical place for them to be dealt with is in London Central. 5. I had an opportunity to discuss with the Regional Employment Judge in London Central the issue of the Claimant Mr Ali’s application in London Central for a postponement of the hearing listed on Thursday 10 June and the general question of having a combined hearing regarding the Restricted Reporting Order in the Croydon cases and the London Central cases in London Central. The Regional Employment Judge indicated that she would postpone the London Central hearing on 10 June, particularly as the Claimant is in difficulty because of a job interview on that day which will prevent him from attending London Central on that occasion. 6. Accordingly, the Restricted Reporting Order continues in this case until a further order is made in London Central and the claims will be transferred in the knowledge that they will be accepted by London Central on transfer.”
[13]I say straightaway that as a matter of substance I can see nothing wrong with the Judge's reasoning or his consequent order. It was common ground, and is evidently right, that the three UKME cases should be case-managed by the same Tribunal, without prejudice to the question whether Mr Amagua's case would eventually be heard with the other two. The only question is: which Tribunal? Mr Ogilvie says that the obvious answer is London South, since two of the cases are already there, and the third should have been but for Lewis Silkin’s mistake. There is obvious force in that point as far as it goes, though I shall return to the question whether the Appellants have any positive legal rights in that regard. But if the Alsaes case comes into the equation, the position is different. His case was properly presented in London Central, and there is a particular and cogent reason why it should not be transferred, namely the point made by the Judge that London Central has a special expertise in state immunity cases. Thus, if the Alsaes case ought to be case-managed with the UKME cases that case management would have to take place in London Central.[14]I can see why the Judge thought that all four of the cases should indeed be case-managed together. Mr Ogilvie submitted otherwise, on the basis that the state immunity point only arose in the Alsaes case, and that it was common ground that the substantive issues in that case, if it proceeded at all, would also be heard separately. But that does not dispose of the other areas of overlap to which I have referred in the preceding paragraph. I can see why the Judge thought that in view of the potential overlap as regards the RROs and the commonality of witnesses it made sense for the Alsaes case to be case-managed with the UKME cases. It was also relevant, though not itself a point of particular weight, that all had a history of common representation, and the presence of all four Claimants at the hearing before him gave an indication that they had interests in common.[15]In any event, however, even if it were thought that the case for transferring the two London South cases to London Central was rather thin, the decision would have to give rise to a real risk of injustice before this Tribunal would intervene. The practice whereby claims are required to be presented to a particular office by reference to the postcode of the claimant's place of work, and are thereafter managed and heard in that office, is no more than that ‑ a practice. It is not prescribed by the Employment Tribunal Rules, or any other statutory instrument. It is not even, as I understand it, the subject of a formal Practice Direction. It gives rise to no question of jurisdiction. It follows that transfers between regions can be freely made for any reason that seems good to Regional Employment Judges, subject only to any question of the transfer giving rise to injustice. Such injustice can sometimes arise when the prima facie correct tribunal office is remote from where one or both parties reside or are based. But there is nothing of that kind here. The office of the London Central Tribunal is in fact closer both to where the Appellants live and to their former place of work than is the office of the London South Tribunal. (It is also, for what this is worth, more easily accessible by public transport.) Neither before the Tribunal nor before me has Mr Ogilvie been able to identify any specific prejudice to the Appellants in having their case heard in Kingsway rather than in Croydon. He seemed to think that there was some fundamental right in a claimant in the employment tribunal to have his or her case managed and determined in the tribunal region which covers his place of work, and that on that basis the appeal raised, as he put it in his skeleton argument, "a point of fundamental importance which affects tens of thousands of cases right across the country". With all respect to him, this is a nonsense. There is no such right.[16]That point being disposed of, Mr Ogilvie's remaining points are essentially procedural, or in any event to do with the way in which the Judge gave reasons for his decision.[17]First, it is said that it was wrong to order the transfer in circumstances where Mr Amagua was not formally present at the hearing of 8 June. He was of course, as I have said, actually present, and both Mr Barnett and Mr Solomon tell me that when the question of transfer arose, and it became clear it would have to involve Mr Amagua's case, the Judge asked Mr Ogilvie whether he had authority to represent Mr Amagua (and indeed the other Claimants) in relation to it, and that Mr Ogilvie said that he had. They also tell me that all the Claimants in question nodded to indicate their assent. Mr Ogilvie tells me that he cannot recall that happening and does not believe that it did. Over the lunch adjournment Mr Solomon was able to obtain what was said to be a contemporary note which he tells me was made by Mr Sakrouge, the partner in Russell Cooke who he says attended the hearing. This records the exchange about which he and Mr Barnett had already told me. It was faxed here under cover of an email from Mr Sakrouge describing it as "page 3 of my 28‑page note of the hearing of 8 June". It is in manuscript on Russell Cooke file paper and includes the following: "R Amagua (2318536/2010). Do you represent Amag Yes Alsaes Have instructions from him today. 5 cases? Yes (including 2ndTunji)” (Tunji is Mr Faleye's first name.) On being confronted with that note, Mr Ogilvie maintained his denial that anything of the kind had occurred. Indeed, he told me that he knew Mr Sakrouge by sight and that he could say that he was not present at the hearing, so that accordingly the note could not be genuine. Mr Solomon told me that Mr Sakrouge was indeed present and instructing him. This difference about what occurred at the hearing is regrettable and surprising. I suppose that if the appeal turned on it, it would be necessary for me to adjourn the hearing in order to have the factual dispute definitively resolved, with disclosure and the opportunity for cross-examination. I am bound to say that on the material before me at present it seems very unlikely that the note is anything but genuine, and my strong provisional view would be that Mr Barnett's and Mr Solomon's recollection of what occurred, supported by that note, ought to preferred to Mr Ogilvie's. I am also influenced by the fact that I think it highly unlikely that the Judge - who it is common ground was alert to the point - would have proceeded to make any order affecting Mr Amagua without satisfying himself that Mr Ogilvie had authority to represent him. But, as I say, that is not a matter on which I ought to make a final and definitive finding.[18]I should mention another point made by Mr Ogilvie which troubles me a little more - that is, that he tells me that Mr Amagua's English is not very good, so that even if matters had occurred as Mr Barnett and Mr Solomon say that they did, it is, he says, unlikely that Mr Amagua would have understood what was going on. That would not absolve Mr Ogilvie from having told the Judge, if he did, that he represented Mr Amagua; but it might create an injustice if Mr Amagua was unclear about what was being said on his behalf, particularly in circumstances where he might reasonably not have expected anything to occur at that hearing that would affect his rights.[19]I need not, however, decide these points because I am satisfied that, whatever happened or did not happen about Mr Amagua's formal representation, there was no injustice here. It was entirely sensible for the Judge to deal with the transfer point when he did, with all the parties actually present, whatever the formal position about representation, and with all points having been argued and the position investigated with the London Central Tribunal. If Mr Amagua had a point about his not having been formally present or represented, it was always open to him to apply, at least provided he did so promptly, for the order to be set aside, as is the case with any case management order made in the absence of a party. He made no such application. Further, even if there was some injustice in the way in which the matter was handled before the Judge, I would in any event be prepared to exercise my powers under section 35 of the Employment Tribunals Act 1996 to make the same order as the Judge did in Mr Amagua's case. As I have already said, I can see no conceivable injustice to Mr Amagua in having his case transferred to London Central.[20]The next point made by Mr Ogilvie is that the Judge's reasons for his decision were inadequate. I do not agree. This was a short matter involving the exercise of a broad administrative discretion. Even in respect of such a point, no doubt it is right that the Appellants were entitled to know why the Judge thought that their cases should be transferred to London Central. But the Reasons tell them precisely that. I was pressed by Mr Ogilvie with the well‑known passage from the judgment of Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and with the observation that where particular arguments are run it is the Judge's duty to deal with those arguments. I am not sure that those general observations in Flannery can be directly applied to the case of an interlocutory decision of this sort. But in any event the arguments which Mr Ogilvie says (and I do not doubt) that he advanced before the Judge were not such as in my judgment to require to be separately dealt with. He has set them out fully and helpfully in his Notice of Appeal. They mostly state what was factually common ground, for example that Mr Mohammed Ali's claim should not have been in London Central in first place, or that the Alsaes case was the only one which raised any issue of state immunity. But those points were not of real significance to the outcome. They would only be if Mr Ogilvie were right in his assertion that the Appellant had a positive right to have the case heard in London South: as I have already said, that is a misconception. The Judge was perfectly entitled to proceed on the straightforward basis that all four cases needed to be case-managed together; that the only question was whether that should be in London South or London Central; that there was no particular presumption in favour of one or the other, given that no prejudice arose to the parties; and that thus the single factor clearly favouring London Central, namely its expertise in state immunity matters, should prevail.[21]Mr Ogilvie also says that the single reason which was ultimately decisive for the Judge was not specifically raised by the Respondents, nor was it adverted to by the Judge before he came to his decision, with the result that he, Mr Ogilvie, had no opportunity to address it. That point is not, so far as I can see, pleaded in the Notice of Appeal and it has accordingly not been investigated either with the Respondents or with the Judge. But even if it were correct it would only have any significance if he was thereby deprived of the chance to make some submission which might have had a realistic chance of changing the Judge's mind. When I asked him what that submission might be, it was clear to me that there was no new or different point that he could or would have made if the Judge had expressly raised this issue with him. He had already made the general point that the state immunity issue only arose in the Alsaes case. But once the Judge was of the view, for other reasons, that the four cases should be case-managed together, that fact made no difference; and Mr Ogilvie unsurprisingly was not in a position to challenge the statement that cases of state immunity were better handled in London Central.[22]Mr Ogilvie also challenges the course taken by the Judge of communicating during the lunch adjournment with the Regional Employment Judge in London Central. I can see nothing the least wrong with that. Transfer inevitably involves the assent of both the Regional Employment Judge in the transferring region and the Regional Employment Judge in the region to which the case is being transferred. It is only common prudence for the transferring Judge to ascertain that the Regional Employment Judge in the destination region is willing to accept the case. It is said, however, that that involved a de facto acceptance by the Regional Employment Judge in London Central that Mr Mohammed Ali's application for his case to be transferred to London South would be refused. That is probably right. If so, it is something that can only be complained of by Mr Mohammed Ali, who is not a party to this appeal. But I should make it clear that I can in any event see no reason to think that he had anything in substance to complain about.[23]The result of the transfer was that it would be London Central rather than London South which would have to consider the question of whether the RRO granted in Mr Faleye's case should be revoked. Mr Ogilvie says that that will mean that London Central would have to investigate the question of whether there were proper grounds for the making of the temporary order in the first place, and that it was unsatisfactory that a Judge in one region should have to consider whether an order was properly made by a Judge in another region. I am very doubtful whether that is a relevant enquiry. Although I have not heard submissions on the point, it seems to me that the only question will be not whether the RRO should have been granted in the first place but whether it is justified going forward. But, even if I am wrong about that, there is nothing wrong in principle in one Judge, whether in the same region or a different region, considering the basis on which an order was made by another Judge. That is a situation which not uncommonly occurs. If it is really necessary to obtain documents from the London South Tribunal which have not accompanied the file to London Central, there would be, I am sure, no difficulty in doing so.[24]Finally, Mr Ogilvie invokes Article 6 of the European Convention of Human Rights . But, as he accepts, that is no more than another label for the substantive points which I have already considered and rejected. It adds nothing of substance.[25]I must conclude by saying that not only do I reject the particular arguments raised, for the reasons I have given, but that I have been unable to understand, despite putting the question squarely to Mr Ogilvie, why this appeal matters. It should be a matter of indifference to the Appellants in which tribunal their case proceeds, provided it is fairly handled in the tribunal in question. On everything I have heard, the appeal seems to have been frankly a waste of time.