Appeal No.	UKEAT/0104/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	         On 5 November 2003
Judgment delivered on 8 December 2003

Before
HIS HONOUR JUDGE J BIRTLES
MR P A L PARKER CBE
MRS M T PROSSER

MRS J MAYO-DEMAN	APPELLANT

LEWISHAM COLLEGE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS E MISRA
(of Counsel)
Instructed by:
The Council for Ethnic Minority
11 Brocklesbank Road
Bugsey Way
Charlton
London SE7 7SX
	
For the Respondents	MR C QUINN
(of Counsel)
Instructed by:
Messrs Evans Butler Wade
Solicitors
165 Greenwich High Road
London SE10 	

HIS HONOUR JUDGE BIRTLES

Introduction
1	This is an appeal from the Decision of an Employment Tribunal sitting at London South on 5 March, 10 July and 6 September 2001 (in Chambers).  The Chairman was Ms C E Taylor and the members were Mr G C Hardwick and Mrs J S Slatter.  The unanimous Decision of the Tribunal was that the Respondents:

(i) did not unlawfully discriminate against the Applicant on racial grounds;
(ii) did not unlawfully victimise the Applicant on racial grounds.  

The Employment Tribunal’s Decision was sent to the parties and entered in the register on 6 November 2001.  

Grounds of appeal
2	By a Notice of Appeal dated 16 December the Appellant appealed against that Decision on a number of grounds.  At a preliminary hearing before a different panel of the Employment Appeal Tribunal on 13 May 2003 (His Honour Judge Burke QC, Mrs R Chapman and Mr M Clancy) those grounds of appeal were reduced to a single ground of appeal, prepared by Counsel appearing under the ELAAS scheme.  The amendment signed by Judge Burke on 13 May 2003 reads as follows:
“1   The Appellant abandons all grounds of appeal set out in his Notice of Appeal dated               16 December 2002 except that set out below. 
2  There was a breach of natural justice in the manner in which these proceedings were conducted before the Employment Tribunal in that copies of the parties’ final submissions were not exchanged and no opportunity arose to permit comment on those submissions by the Appellant.  (See paragraph 66 of the Chairman’s notes (page 51 of the first bundle before this Tribunal).”
	
The Employment Tribunal Decision
3	The Employment Tribunal Decision is in conventional form and runs to some fifteen pages.  Because of the fact that there is now only one ground of appeal, it is not necessary to set out the history of the case in any detail.  Suffice it to say that Mrs Mayo-Deman brought a claim against Lewisham College and Mr H S Brar, claiming unlawful discrimination and victimisation when she was not shortlisted for the post of “New Deal Administrator” at Lewisham College.  Mr Brar had apparently not been served with the Originating Application and the case proceeded only against Lewisham College.

4	It is not necessary to go through the evidence.  The application was dismissed.

5	There was insufficient time to hear oral submissions at the conclusion of the hearing.  The parties were directed to supply brief written submissions by 10 August 2001: Decision paragraph 34.  The Respondents’ submissions were not included by the Appellant in her bundle for the Employment Appeal Tribunal, but were attached to the Respondent’s written Skeleton submissions for the appeal hearing.  It is not clear that they were before the Employment Appeal Tribunal which sat for the Preliminary Hearing.  Those submissions are two pages and are very general in nature.  They are summarised at Decision paragraph 35.  Apparently the Applicant made lengthy submissions which are summarised at Decision paragraphs 36 - 37.  We have not seen a copy of them and we were told by Mr Quinn for the Respondents that they ran to some 37 pages.  That information was not challenged by Ms Misra on behalf of the Appellant.

6	It is clear from paragraph 34 of the Employment Tribunal Decision and paragraph 65 - 66 of the comments provided by the Chairman in answer to an affidavit filed by the Appellant (on other grounds of appeal not now before us) that she did direct written submissions to be submitted to the Employment Tribunal by 10 August 2001 but failed to direct that there be cross-service of the written submissions.  Neither Appellant nor Respondents served the other with their written submissions and the Tribunal itself took no action to send a copy of the respective parties’ to the other party.  

The grounds of appeal
7	As we have indicated, the sole ground of appeal before us is an allegation that this failure amounted to a breach of natural justice because copies of those final submissions were not exchanged and therefore no opportunity arose to permit comment on those submissions.  In particular the Appellant was prevented from commenting on the Respondents’ written submissions.

8	In support of her argument, Ms Misra relies upon the decision of the Employment Appeal Tribunal in London Borough of Barking & Dagenham -v- Oguoko [2000] IRLR 179 which was a decision given by His Honour Judge Byrt QC.  The decision was a reserved one.  The material facts in that case were that at the close of the second and final day of the Employment Tribunal hearing, the parties agreed to put their closing submission in writing so as to enable the proceedings to be concluded that day.  The parties duly presented their respective submissions to the Tribunal, which acknowledged their receipt but did not send a copy to the other party.  It did not appear that the parties had copied their submissions to each other.  The Tribunal then met in Chambers and decided to uphold the claim of racial discrimination but had dismissed the victimisation complaint.  The employers sought a review of that decision on the grounds that it had been reached without their having prior sight of the other side’s written submissions.  The Tribunal wrote to both parties asking how their representations would have been changed or extended if the submissions had been exchanged.  The Tribunal members considered the comments and unanimously took the view that they did not affect their decision in any way.  The application for review was therefore refused.  On appeal the Employment Tribunal dismissed the appeal.  The relevant part of the judgment is at [2000] IRLR 182-83, paragraphs 33 - 35, where Judge Byrt QC said this:

“33     There remains the appellant’s last ground of appeal.  There will be occasions when it will be greatly to the convenience of the parties and of the tribunal that the parties’ closing submissions should be made in writing after the hearing and lodged with the tribunal.  If this procedure is to be adopted, it should be implemented only with the consent of the parties.  Once such consent has been secured, then in our judgment the tribunal chairman must take responsibility of ensuring that the procedure is implemented in accordance with the rules of natural justice.  This will require that, upon receipt of both sets of submissions, the tribunal will serve each party with the written submission of the other.  Each party should be informed that if they have any appropriate comment to make on the submission of their opponent, they should send those comments to the tribunal within, say, a further 14 days.  They should be warned that if, within that time, no comment is received back by the tribunal, it will be assumed that they have no comment to make and the tribunal will proceed to make their decision on the basis of the submissions already tendered.  Appropriate comments in reply should be limited, as would be the case had oral submissions been made, namely to correction of factual errors and legal submission on a new point of law not previously raised.  The tribunal should not proceed to the decision making stage until the chairman is satisfied that each of the above steps has been taken.  
34	In this case, we think the probability is that the tribunal failed to cross-serve the written submissions, and so neither party had the opportunity to comment before the meeting of the tribunal members on 20 April.  In our judgment, this amounted to a breach of the rules of natural justice.  Whilst Mr Hawthorne clearly had in mind the need to see the other side’s submission when he wrote his letter dated 9 February 1998, we do not think the ultimate responsibility for ensuring he had the opportunity to comment rested with him. The chairman should have checked before he and his members proceeded to making their decision.  The fact that, in this instance, the tribunal administration had omitted to send the written submissions to each side serves to underline the importance of the chairman’s verification at this stage that all which has to be done, has been done. 
35	However, it is our view that any breach of the rules of natural justice was remedied when the tribunal solicited the comments of each party at the stage when Mr Hawthorne sought a review.  The latter does not challenge the bona fides of the process in which the tribunal engaged upon his application.  Indeed, there is no appeal from the refusal of the application. We are concerned with a scrutiny of the procedures adopted, and are satisfied that the opportunity to comment afforded the parties at that late stage, and the reconsideration of the decision undertaken by the tribunal in view of those comments, rectified the earlier procedural draft.”

9	In our judgment that authority says two things.  First, failure by the Employment Tribunal to cross-serve final written submissions is a breach of the rules of justice.  Second, that breach may be cured by subsequent action taken by the Employment Tribunal.  In the case of Oguoko the action taken by the Tribunal on a review was to write to each party asking how their representations would have been changed or extended if the submissions had been exchanged.  Having received a response, the Tribunal took the view that any further comments on the final written submissions would have made no difference to its decision.  In other words the breach was cured by the action of the Tribunal.  

10	In this case no application for a review was made by either party and the matter comes before the Employment Appeal Tribunal as a ground of appeal.  

The parties’ submissions
11	Ms Misra, for the Appellant, makes two submissions.  First, the breach in this case was not cured as the Appellant was never given the opportunity to comment on the Respondents’ submissions.  Oguoko can therefore be distinguished on the facts, but the principles are applicable to this case.  Second, she argues that in any event, it is difficult to quantify the prejudice suffered by the Appellant, as the effect of the parties’ submissions to the Tribunal cannot be gauged at this stage.  

12	Mr Quinn submits that the proper approach to be taken in a case such as this is set out by the Court of Appeal in Stanley Cole (Wainfleet) Ltd -v- J F Sheridan [2003] EWCA - Civ 1046 in which the Court of Appeal held that in the case of a failure by an Employment Tribunal to permit the parties to comment upon an authority which it refers to in its decision, will succeed only where it has been established that a material injustice resulted from the lack of opportunity to comment.  Stanley Cole (Wainfleet) Ltd was concerned with the failure by a Court or Tribunal to alert advocates to a material, significant and relevant authority: judgment paragraph 1.  It did not therefore consider the question which specifically arose in Oguoko.  

13	The leading judgment was delivered by Ward LJ who said this:
paragraphs 28 - 32 and 38.  

“28. Not to be afforded a fair hearing would be an obviously serious procedural irregularity sufficient to allow the appeal. The real question is, however, whether what happened was seriously irregular and unfair . 
29. It is not contended, and rightly so, that there is a serious irregularity simply because a judge (and for present purposes that includes the tribunal) cites in his or her judgment decided cases which had not been referred to in the course of the hearing. Judicial research would be stultified if that were so and if the parties had to be given the opportunity to address each and every case eventually set out in the judgment. 
30. The test applied by His Hon Serota Q.C. in Albion was this:- 
31 Dr Cohen sums up that test of relevance, significance and materiality as meaning that the authority must be central to the decision. In my Judgment I can accept those epithets insofar as they convey the meaning that the authority must be shown to be central to the decision and not peripheral to it. It must play an influential part in shaping the judgment. If it is of little or no important and serves only to underline, amplify or give greater emphasis to a point that was explicitly or implicitly addressed in the course of the hearing, then no complaint can be made. If the point of the authority was so clear that a party could not make any useful comment in explanation, then it matters not that the authority was not mentioned. 
32 Thus it seems to me, the authority must alter or affect the way the issues have been addressed to a significant extent so that it truly can be said by a fair-minded observer that the case was decided in a way which could not  have been anticipated by a party fixed with such knowledge of the law and procedure as it would be reasonable to attribute to him in all the circumstances. 
….
38  The vital question, in my judgment, is whether it would have made any difference to the outcome if Dr Cohen has been armed with this authority.  That is a question for this court to answer.  It is not a matter we must refer back to the original tribunal.”

The Employment Appeal Tribunal  Decision
14	In reaching its decision, the Court of Appeal in  Stanley Cole (Wainfleet) Ltd specifically discussed two decisions of the Employment Appeal Tribunal.  The first in time was Albion Hotel (Freshwater) Ltd -v- Maia E Silva [2002] IRLR 200, a decision of a different panel of the Employment Appeal Tribunal presided over by His Honour Judge Serota QC.  The other decision was Nelson -v- Carillion Services Ltd (unreported) 26 June 2002.  That was a decision of another panel of the Employment Appeal Tribunal presided over by His Honour Judge Peter Clark.  Both of those cases concerned the failure by an Employment Tribunal to permit the parties to have the opportunity of commenting upon an authority that it cited in its decision.  As His Honour Judge Clark pointed out in Nelson, Judge Serota was not stating any new proposition of law.  Judge Clark said this: “the real question, it seems to us is whether the case significantly added to the learning which had been cited by the parties”: Nelson, paragraph 15D.  In Albion Hotel (Freshwater) Ltd the Employment Appeal Tribunal found that it had.  In Nelson it found that it had not.  

15	In our judgment, it is not sufficient for a party to submit that there has been a breach of the rules of natural justice by an Employment Tribunal whether by the failure to refer the parties to an authority it tends to reply upon, or by the failure to cross-serve parties’ final written submissions and invite comments thereon, before reaching its decision.  A technical breach of the rules of natural justice cannot inevitably result in an appeal being allowed and the remission of the case for a full fresh hearing before another Tribunal.  We agree with and apply the rationale of Stanley Cole (Wainfleet) Ltd to the facts of this case.  In order to succeed in this appeal, the Appellant needs to show that she has suffered something which was “seriously irregular and unfair” (Ward LJ at paragraph 28) or “substantial unfairness” (Buxton LJ at paragraph 49)

16	Applying that test to the facts of this case, we specifically asked Ms Misra what particular paragraphs of the two pages of the Respondents’ written submissions the Appellant would have wished to comment on to the Employment Tribunal before it made its decision.  She could only point to two.  The first was on page 2, where the Respondents say this: 
“It is submitted that the Applicant did not clearly identify a “Protected Act” by reference to her claim against the Respondents”

The simple answer to this is that in order to sustain a claim for victimisation the Applicant has to identify a protected act: Race Relations Act 1976 section 2(1) and Aziz -v- Trinity Street Taxis Ltd [1988] IRLR 204.  Both these were referred to by the Employment Tribunal: Decision paragraphs 45 - 46.  The Employment Tribunal went on to consider the evidence and found that the Appellant had failed to establish that she had carried out a protected act within the meaning of section 2 of the 1976 Act: Decision paragraphs 50 - 55.  Accordingly, her claim for victimisation failed.  The onus of proof in a victimisation claim is upon the Appellant to prove that she has carried out a protected act.  All the passage cited from the Respondents’ closing submissions says it is a simple denial that any protected act was carried out by the Appellant.  We find no serious irregularity or unfairness or substantial unfairness here.  

17	The second passage referred to by Ms Misra is also on page 2 of the Respondents’ written submissions to the Employment Tribunal.  It says this:
“It is submitted that the Applicant failed to produce any evidence that Mr Brar knew of her application to Lewisham College before the decision was taken not to shortlist her for the position.  Mr Brar gave clear evidence that he did not know of her application and that it would have been most unlikely that it would have been brought to his attention.”

This is simply a reference to Mr Brar’s evidence that was given to the Employment Tribunal.  It is also a submission that the Appellant herself produced no evidence to contradict it.  If the Appellant could not prove that Mr Brar knew of her application to Lewisham College before the decision was taken not to shortlist her for the position, then Mr Brar (as the agent of Lewisham College) could not have been involved in an act of victimisation.  Essentially this was an issue of evidence.  The evidence was concluded at the end of the second day of the hearing and before written submissions came in.  Mr Brar was central to the Appellant’s case: see the Originating Application pages 55 - 56 of the bundle.  All the Respondents have done in the passage cited above is to make an assertion.  It was for the Appellant to prove her case.  She manifestly failed to do so.  Applying the test in Stanley Cole (Wainfleet) Ltd, there was not serious irregularity or substantial unfairness.

Conclusion
18	For these reasons the appeal will be dismissed.