Basildon & Thurrock NHS Foundation Trust v Weerasinghe (Practice and Procedure) [2015] UKEAT 0397_14_1905

EAT
Basildon & Thurrock NHS Foundation Trust v Weerasinghe (Practice and Procedure)
[2015] UKEAT 0397_14_1905 · 2015-05-19
[1]This appeal against a Registrar’s order raises a question which, surprisingly, has been determined by no previous case: that is, what amounts to a cross-appeal? More particularly, what amounts to a cross-appeal for the purposes of the Rules of the Employment Appeal Tribunal and for an order which provided that a Respondent had 14 days from notification of an appeal within which the Respondent might make a cross-appeal. The Procedural History[2]The relevant history is this. The Claimant, a Consultant Cardiothoracic Surgeon, made a number of claims which were heard at one hearing, having been raised in two claim forms, by the East London Employment Tribunal. For Reasons delivered on 23 June 2014, it accepted his claim that he had suffered detriments for making a public interest disclosure, that he had been unfairly dismissed (the reason (which it accepted) for the dismissal being conduct) and that he had been unfavourably treated because of something arising in consequence of his disability. Though allowing those claims, it dismissed claims that he had also brought that he had been indirectly discriminated against on the ground of his disability, that there had been a failure to make reasonable adjustments, that he had been victimised and that he was due a payment in respect of annual leave which had not been paid; the latter claim being dismissed upon withdrawal.[3]Just before the time limit for a primary appeal expired, the Respondent Hospital Trust filed a Notice of Appeal. That was on 1 August 2014. It was in respect only of the claim under section 15 of the Equality Act 2010 , that in respect of unfair treatment by reason of something arising in consequence of the Claimant’s disability. When that claim was admitted to a Full Hearing following the sift, a response was called for by order of Judge Shanks. That was provided on 4 December 2014. It contained what was described as a cross-appeal. The Respondent contended that the cross-appeal was out of time.[4]It did so in reliance upon a decision of this Tribunal, presided over by Burton J as President, in Asda Stores Ltd v Thompson & Ors (No 2 ) [2004] IRLR 598 . In that case there was an appeal against an order made by the Tribunal dated 11 December 2002. The Respondents to the appeal said (see paragraph 23 of the Decision) that they cross-appealed and did so “from the decision … as set out in the letter of 11 November 2002”. There was thus an appeal against an order of 11 December and a cross-appeal (so-called) in respect of a decision made at a different time. Though ultimately persuaded by the advocate that there was what he described as a genuine cross-appeal, the reaction of the Appeal Tribunal was initially (see paragraph 24) that this did not look like a cross-appeal. In saying that, the Appeal Tribunal did not identify the essential characteristics of a cross-appeal. It plainly thought that it was obvious. In paragraph 25 Burton J for the Tribunal continued to say this:
“… we do take the opportunity for the benefit of employment law practitioners generally to emphasise that … this would have been a situation in which there was an appeal against an order of 11 December 2002 sought to be coupled with and followed by a purported cross-appeal in respect of an alleged Order of 11 November 2002. That is not in our judgment a cross-appeal. That is an independent appeal. A cross-appeal can only arise, in our judgment, out of the same order as was appealed. This would have been an independent appeal which, if runnable, it would be appropriate to have dealt with at the same hearing, as in fact has occurred. But, in our judgment, if it is desired to appeal by way of such an independent appeal a different order from that which the other party has appealed, then time for such independent appeals runs [sic] from that original order. That must make sense, because otherwise the simple fact that an appellant has appealed an order of December 2001 could enable a respondent to ‘cross-appeal’ an order of December 1999. There would be no end to it if time ran for any old appeal against any old order in the same proceedings, simply because an appellant has appealed one particular order. Consequently, in our judgment, a genuine separate appeal, as this would have been but for the point on which have been persuaded by Mr Laddie, has its own time limit. It is quite apparent that that is a logical answer in this case too, because, as will be seen when we analyse the story in a little more detail, the applicants were not seeking to challenge …”
He turned to the course of the particular facts in that case. The Claimant’s Case and the Law[5]What Miss Ellenbogen QC, who appears to argue the case on the part of the Trust before me, submits is that in that passage, albeit obiter , Burton J identified that the focus had to be on the order under appeal in order to determine if the matter was an independent appeal or not. She relied heavily, as the Respondents have done in earlier correspondence, upon the proposition that a cross-appeal could only arise out of the same order as was appealed. This focuses upon the order, that is, the terms within which a particular decision is delivered. Extrapolating to the present case, she points out that what was appealed by the Trust was the conclusion the Tribunal reached in respect of section 15 Equality Act 2010 . The cross-appeal, so-called, which the Claimant wishes to make raises issues in respect of the matters upon which he had lost before the Tribunal. In particular he seeks to query whether the indirect discrimination conclusion had been properly reached. Properly analysed this arose out of a separate order. Accordingly it required to be brought within the time provided by the Rules for a primary appeal. It had not been, and there was no prospect of it being brought within time.[6]I do not accept that Asda Stores v Thompson (No 2) is to be read in that way. I do so for a number of reasons. First, it seems to me that the logic which appealed to Burton J and the members, both intuitively as expressed at paragraph 24 and in their reasoning in paragraph 25, was not to draw a contrast between an order on one part of a case, in the sense of a separate decision as to a matter of principle arising in respect of that part, and an “order” in respect of a different decision of principle in respect of a different part of the same Judgment. But what he was doing was contrasting decisions made on different days. What gave rise to the consideration was the month gap between one decision and the other. What was referred to in the bulk of paragraph 25 was the fear that, if a cross-appeal extended so as to permit a decision made on a different day after a different hearing before a Tribunal to be revisited, it would work injustice. It is plain that he saw a cross-appeal as being limited to an appeal against a decision made on the same occasion before the same Tribunal as the decision which had been under appeal.[7]The fact that he used the word “order” seems to me to have no particular force in the present circumstances. That is because the Employment Tribunals Act 1996 provides for the jurisdiction of this Tribunal. By section 21(1) it is provided:
“(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of - …”
And it sets out a number of statutory provisions. What therefore may be appealed is a question of law. But the question of law has to arise from a decision of, or arise in any proceedings before, an Employment Tribunal. It is within that context that the definition of cross-appeal has to be determined.[8]The Employment Appeal Tribunal Rules 1993 requires an appeal to be instituted by the service of a Notice of Appeal substantially in accordance with a form scheduled to the Rules (see Rule 3(1)). Rule 6 provides for “Respondent’s answer and notice of cross-appeal”. Cross-appeal is not defined. However, it is plain to me that there has to be a link between the subject matter of the appeal (that is, adopting the language of the Act , the Judgment or Decision of the Tribunal) and the matter which the Cross-Appellant wishes to raise by way of cross-appeal. The form provides separately for resisting the appeal by seeking to support the decision of the Tribunal upon different grounds from those relied upon by the Tribunal itself and cross-appealing. It is therefore plain that a cross-appeal is not limited to the single decision or any single decision which is under challenge by the Appellant in the proceedings. As has been observed in other contexts, a party cannot appeal an order in their favour. See, for instance, the decision in the Employment Appeal Tribunal context of Wolfe v North Middlesex University Hospital NHS Trust UKEAT/0065/14/MC , a decision of this Tribunal of 9 April 2015, at paragraphs 92 and 93.[9]Paragraph 6 goes on to prescribe a form of cross-appeal, which is scheduled to the Rules as part of form 3. In that form there is provision separately for the grounds upon which the Respondent intends to resist the appeal and the possibility, under what is paragraph 4 in form 3, of a cross-appeal. Within brackets is said:
“here give particulars of the decision appealed from”
. There is no further guidance, it seems to me, given by the Rules themselves as to what a cross-appeal contains, but I note that there is no suggestion within Rule 6 that the substance of a cross-appeal, if it relates to a decision made at the same time on the same occasion by the same Tribunal as that which the Appellant wishes to challenge by way of appeal, needs to be made within the original 42 days. Rather, it is clear that the cross-appeal is to be made within the time to be appointed by the Appeal Tribunal (see paragraph 6(3)). That has the effect of extending time in an appropriate case for the Respondent who wishes to cross-appeal.[10]It follows from those reasons that I do not think that Asda Stores v Thompson bears the weight which Miss Ellenbogen’s argument would place upon it. It does not dispose of the argument. The question which she poses is whether a cross-appeal which could have been brought as an independent appeal, freestanding and not in any sense contingent upon the appeal succeeding, should have applied to it the same time limit as would be applied to an appeal under Rule 3 of the Employment Appeal Tribunal Rules .[11]She would argue that the mere use of the nomenclature “cross-appeal” should not determine this issue, which is one of substantial importance as between the parties. The fact that there may be no alternative description other than cross-appeal does not mean that every “cross-appeal” should take the same route. Burton J recognised that point in Asda Stores and himself struggled with the language appropriate to describe that which in his view should not come within the same regime as to time limits as would a true cross-appeal. He used the expression “properly so-called” or put the words “cross-appeal” in inverted commas. The argument, she urged, should not be reduced to one in respect of language.[12]In the event I have not thought it necessary to call upon Miss Seymour except for one small point arising out of the submissions which she made. Discussion, Submissions and Conclusions[13]In my view, in the absence of authority, I should have regard to three matters: first, to the ordinary normal meaning of the word “cross-appeal” taken in context; secondly, I should have regard to the way in which the expression has been understood so far. Though it may have been misunderstood and, if so, would require to be put right, it would be fortuitous if the decision I were to reach endorsed past practice rather than condemned it. Thirdly, I should have regard to any matters of policy which might suggest that the argument should move one way or the other.[14]As to the first, the word “cross-appeal” is appropriate, and appropriate only, to a challenge to a decision which is adverse to the party who wishes to cross-appeal. I see no reason in principle to restrict this to a matter which is intrinsically linked to the subject of the appeal itself or a matter which, in the absence of the appeal, would not itself give rise to any freestanding right of appeal. There is nothing in the language or context to suggest that that should be so. Since one cannot appeal an order or decision in one’s favour, so it seems to me any cross-appeal will have to be in respect of an order or decision contrary to the Cross-Appellant’s wishes.[15]The natural wording, “cross-appeal”, suggests it is an appeal which arises in response to an appeal. I accept entirely the distinction drawn, as I read it, by Burton J between decisions made on one occasion and on another. It seems to me that the cross-appeal must arise out of a decision of, or one which arises in any proceedings before, an Employment Tribunal on the same date and on the same occasion as that in respect of which the appeal arises. I do not, for instance, consider that it is a true cross-appeal where there has been separate hearing in respect of liability and quantum where one party wishes to appeal liability and the other quantum. It may be within time but it seems to me that, if it is not within time as to quantum, then it is technically a separate and freestanding appeal and does not arise out of matters determined on the same occasion. This is entirely consistent, I should add, with the fee-charging regime as I understand it. In its natural meaning, therefore, and in context, I see that the words “cross-appeal” are capable of covering what applied in this particular case.[16]The question of practice is clear. The Deputy Registrar herself, in reaching her decision, reflected what is understood to be the general practice: that is, that in a situation such as the present, what the Respondent sought to do was properly to be called a cross-appeal within the meaning of the Rules and the order. I have little doubt that that is the way in which, since he used the words in the order, Judge Shanks would have understood it. There has been no case of which I am aware in which this view has been subject to challenge in the past. It is the view on which the profession and the courts have proceeded. There is no good reason to disturb it. This is therefore a further and independent reason for reaching the decision which I do to reject this appeal.[17]The third matter is the question of policy insofar as it applies. Here the submissions are at odds. Miss Seymour in her skeleton argument argues that, if the Respondent’s construction were correct, the result would be that all parties would be well advised to make protective appeals in all cases against the possibility that the other side might appeal on the final day of the time limit, as the Respondent did in the present case, and leave them in a position where they were unable to cross-appeal other parts of the Judgment.[18]Miss Ellenbogen responds by arguing that that is not the case, that there are many reasons why a party may wish to appeal and many consequences of doing so. There is the cost and time of preparing for an appeal, the question of incurring fees, and the undesirability that a party should have a free run at an appeal simply because the other, having got in first, has had to incur the fees. A party may be swithering as to appealing because of the tenuous nature of the ground which appeals to it. All these may influence a decision as to appeal. There is nothing in principle, she submits, wrong in subjecting the would-be Cross-Appellant to the same regime as the first Appellant, for whom it is well recognised by authority that 42 days is a generous time period within which to appeal. Cross-Appellants have even longer. Not only are they are likely to be notified by the EAT of the filing of a Notice of Appeal, but they will have the 14 days given by the Practice Direction , and reflected in the order here, which is usually given for filing a Respondent’s Notice. All that comes in addition to the 42 days which are likely to have passed (or many of which will have passed) before the initial Notice of Appeal is lodged itself.[19]I approach the question of policy in this way. The system of appeal in this Tribunal is part of a system of justice which ought, so far as it can do, not only to permit people to litigate their disputes but should seek, where it can, to reconcile them to their differences rather than to exacerbate them. It is familiar that many parties, though not fully content with a decision of a Tribunal, are prepared to accept it at least as it stands. If such a party discovers that the other party, also dissatisfied, intends to seek to change that order in their favour, then it is not difficult to see that the response is to seek itself to mount an appeal. One appeal therefore becomes responsive to another. If the other appeal were not brought, neither would be within time. The parties, though not wholly content, would not have their differences maintained and exacerbated by a continuing system of appeal and argument.[20]Secondly, it seems to me that, where there is the prospect of proper compromise, it should be encouraged rather than discouraged. That presupposes parties who have something to negotiate with each other in return for what might be conceded by the other. In a regime in which an Appellant may put in an appeal at the last moment and thereby exclude its opponent, effectively, from having a negotiating chip with which to settle the differences arising on that appeal, it seems to me that the system will be one which would to that extent limit the prospect of a compromise which would seek to do fair justice between the parties in the light of the particular facts of that case and the particular desires of those parties.[21]These are not strong arguments, but on balance they seem to me to favour Miss Seymour’s position rather than that adopted by Miss Ellenbogen. To that extent, therefore, I am content that the reason why a Respondent is given the additional period of time within which to raise an appeal point in respect of a decision is in order to preserve the balance between the parties which there ought to be if a dispute is to be fairly resolved as between those parties, whilst leaving as great an opportunity as possible for those parties to settle their differences by agreement should they wish. That is best achieved by a definition of cross-appeal in the colloquial everyday sense in which I have interpreted and applied it, and as it has been applied historically by the Appeal Tribunal hitherto.[22]It follows that, despite the attractive way in which Miss Ellenbogen has advanced her submissions, this appeal fails and is dismissed. Costs[23]There is an application for costs on the basis that the proceedings were unnecessary and misconceived. The argument is that they are wholly legally misconceived and that significant legal costs have been incurred (that latter I accept) in resisting this particular part of the proceedings. The question for me is whether or not the application can show what is necessary for it to show if I am to exercise my power to award costs or expenses under Rule 34A. Paragraph 1 of that Rule provides:
“Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived … the Appeal Tribunal may make a costs order against the paying party.”
[24]The word “unnecessary” takes something of its character, though it is a separate word, from the four words which appear afterwards. The fact that an appeal fails does not mean to say that it was misconceived in the first place. It might be; it may not be. I do not accept that, simply because the point under appeal has not been raised so far as I know throughout the 40 or so years of the existence of the Employment Appeal Tribunal, that it necessarily makes it misconceived. Sometimes that with which we are most familiar is that which, on analysis, ought most to be challenged. The argument has not been an entirely straightforward one, and it seemed to me, though just on balance, a proper one to have raised. There is no definition within the Rules of cross-appeal. It is plain from Burton J’s Decision, as indeed I think any lawyer would accept, that there must be limits to what is a cross-appeal and what is not. The question, therefore, was where those limits should be drawn.[25]As for the appeal being unnecessary I do not think that it can be said that it was unnecessary simply because it was brought. I do not think that this claim was unnecessary unless it could be said that the Cross-Appeal Notice was undoubtedly due to fail on the sift, which plainly it has not and therefore was not. Then it would have been unnecessary.[26]I therefore do not have the power to award costs, however appealing it might otherwise have been. But as to that latter I would also have had a discretion which, in the particular circumstances of this case, having looked at the papers, having thought about the argument and considered the point, I think I probably would not have exercised anyway.