Barts Health Trust v Kensington -Oloye (Practice and Procedure : Bias, misconduct and procedural irregularity) [2014] UKEAT 0137_14_0509
[31]“A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v. Short Appeal No. UKEAT/0496/10/RN (6 October 2011) at [30] to [33]. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence: see Price v. Surrey CC Appeal No UKEAT/0450/10/SM (27 October 2011) at [23]. As was recognised in Hart v. English Heritage [2006] ICR 555 at [31]-[35] case management decisions are not final decisions. They can therefore be revisited and reconsidered, for example if there is a material change of circumstances. The power to do that may not be often exercised, but it is a necessary power in the interests of effectiveness. It also avoids endless appeals, with potential additional costs and delays.”36. In this case the Claimant’s case had been put very widely in her ET1 claim form. It is not surprising that a case management discussion was heard. The issues were defined. In this case they were specifically incorporated in the case management order.37. The first question for me to determine is whether the Employment Tribunal’s finding concerning the three grievance documents was or was not within issue no. 11. To my mind, issue no. 11 is plainly directed towards criticism of Miss Tomes. She was the person “conducting the investigation”. Hers was the report in January 2013. Her “uncritical acceptance” of Miss Rubin’s evidence and her “disregarding the evidence” of Miss Munonye were the specific allegations made within issue no. 11.38. I cannot read issue no. 11 as making an allegation against Miss McCrindle. She was not the person who conducted the investigation. She did not produce the report. She was not concerned with accepting or rejecting the evidence of any witness. I do not find it at all surprising, given the list of issues, that Miss Tomes was a key witness and Miss McCrindle was not called at all.39. Further, there was no real allegation against Miss McCrindle in the claim form. It is true that the claim form is pleaded widely, including a broad complaint against the whole of the Human Resources department, but there was nothing specific to alert the Respondent to a complaint about Miss McCrindle.40. When evidence was given at the hearing that Miss McCrindle had not passed on three grievance documents, it was not too late to raise an allegation about the letter. The evidence had come out on the spur of the moment. There could have been an application to amend the claim and introduce the issue. The Employment Tribunal would, on well-established principles, have had power to permit this. If it had done so, it would then have had to address specifically whether justice required an opportunity for Miss McCrindle to be called to give evidence.41. Guidance is given in Ladbroke v Traynor on the procedure to be followed when a problem of this kind arises:[30]“30. We are persuaded that this appeal is well founded. The Tribunal seems, unfortunately, to have jumped too far too fast. What, in our view, it required to recognise before making its decision was as follows: 31. Firstly, the Claimant had not, it seems, actually made any application to amend the ET1. The decision recorded in the written reasons is a decision to allow a line of cross examination which was manifestly not foreshadowed in the Claimant's statement of his case in his ET1. The line which the Claimant sought to pursue was plainly a separate issue in law, as discussed, and involved different facts from any of which notice had been given in the ET1, albeit that it would not take the case outwith the 'unfair dismissal' umbrella. That being so, the allowance of the line of cross examination would have been extremely difficult to justify in the absence of amendment.[32]Secondly, the Tribunal thus did need to turn its mind to the matter of amendment but the question is how? We see no difficulty in a Tribunal in such circumstances enquiring of the Claimant or his representative whether he seeks to amend the ET1 in the light of the line of evidence which he appears to seek to explore.[33]Thirdly, if the answer to that enquiry is that the Claimant does seek to amend, then the Tribunal requires to enquire as to the precise terms of the amendment proposed. If it does not do that, then it cannot begin to consider the principles that apply when considering an application to amend, as discussed above. Further, unless it does so, the fair notice obligations referred to in the quotation from Ali , above, will not be complied with.[34]Fourthly, it may be advisable, if not necessary, to allow the Claimant a short adjournment to formulate the wording of the proposed amendment.[35]Fifthly, it is only once the wording of the proposed amendment is known that the Respondent can be expected to be able to respond to it.[36]Sixthly, once the wording of the proposed amendment is known, the Tribunal requires to allow both parties to address it in respect of the application to amend before considering its response.[37]Seventhly, the Tribunal's response requires to be that of all members and requires to take account of the submissions made and the principles to which we have referred. The Chairman and members may require to retire to consider their decision.[38]Eighthly, the Tribunal requires to give reasons for its decision on an application to amend. Those reasons can be shortly stated and, as we have indicated, we would expect them to be given orally. They must, however, be indicative of the Tribunal having borne in mind all relevant considerations and excluded the irrelevant from its considerations. ”42. In this case the Employment Tribunal simply proceeded to decide the argument put forward by Miss Falade, adopting the burden of proof and noting that Miss McCrindle had not given evidence. Given the issues, however, it is not surprising that Miss McCrindle had not given evidence. The Employment Tribunal had, in my opinion, treated an issue which was really directed to the conduct of Miss Tomes as if it related to the conduct of Miss McCrindle. It did not.43. I am not without sympathy for the position of the Employment Tribunal. The point concerning Miss McCrindle had been addressed only in the briefest of terms in a hearing almost entirely concerned with other matters. But if the Employment Tribunal was minded to make a finding on this issue, it was required to give a fair opportunity to the parties first. This would, to my mind, have involved consideration of the definition of a new issue following an application for permission to amend in accordance with the procedure suggested in Traynor.44. I can deal quite briefly with the ground concerning a question of law for it is academic in the light of the conclusion I have already reached. Paragraph 138 of the Employment Tribunal’s Reasons contains a finding on “less favourable treatment” which does not actually address the circumstances of the case. The Employment Tribunal appears to have thought that the treatment was less favourable because it stopped Miss Tomes realising that there was an element of racial allegation in the Claimant’s grievance. The question, however, is whether Miss McCrindle treated the Claimant less favourably than she would treat others. In other words, whether in like circumstances Miss McCrindle would have forwarded only one grievance document to the investigator in another case. Mr Warley says that is not entirely obvious. The document passed on appears to have been the last and most detailed of the three grievances. The Employment Tribunal may well have concluded that Miss McCrindle would have forwarded all documents in another case, but it did not say that, and its reasoning on the “less favourable treatment” point is not apposite.45. I would add that if Miss McCrindle had, as alleged, some unlawful motivation for not passing on the other documents, it would seem to me to be altogether more likely to be because they contained a complaint of race discrimination rather than because of the Claimant’s race. If so, they would raise an issue of victimisation rather than an issue of discrimination. The Employment Tribunal, however, considering that it was dealing with the matter under issue 11, which was an issue of race discrimination, did not consider victimisation. This is another disadvantage of the Employment Tribunal attempting to deal with the matter under an issue for which it was not really designed.46. It follows that the Employment Tribunal was not entitled to make the finding of unlawful race discrimination which it made. The appeal must be allowed, and the finding must be set aside. After an application under rule 34A(2)(a) of the Employment Appeal Tribunal Rules 199347. I have before me an application under Rule 34A(2)(a) of the Employment Appeal Tribunal Rules 1993 for repayment of the £1,600 fees which the Respondent has incurred in bringing the appeal. There have been cases in the Employment Tribunal on this subject, notably HHJ Eady in Horizon Security Services v Ndeze & Anr UKEAT/0071/14/JOJ. The whole of paragraphs 9-12 repays reading. It is sufficient to say that the general expectation must be that a successful Appellant will be entitled to recover the sums paid from a Respondent which has actively sought to resist the appeal. That is the position here.48. Even though the sum involved is quite small, the structure of the Rules means that I may have regard to the paying party’s ability to pay when considering the amount of a costs order (see Rule 34B(2), which appears to me to apply in the context of Rule 34A(2)(a), since that defines an order for payment of fees as a costs order). I am told by Miss Falade that the Claimant says that she has significant debts, debts of the order of £25,000, and she is the breadwinner for her family. Nevertheless it remains the case that she is a senior manager, with a net pay in excess of £3,000 per month. It seems to me in principle that it is not disproportionate or unreasonable that she should pay the fees in question. Time to pay is something which, if it were not capable of being agreed with the Respondent, could be resolved in enforcement proceedings. In principle, however, it seems to me that there should be an order for costs and I will make one.