Appeal No. EAT/0888/02 & EAT/0069/03 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2003

Before
MR RECORDER DUTTON QC
MR A E R MANNERS
MS B SWITZER

MISS M FRASER	APPELLANT

LONDON BOROUGH OF RICHMOND UPON THAMES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS M FRASER
(the Appellant in Person)	

MR RECORDER DUTTON QC

1	This is a Preliminary Hearing of an appeal brought by Miss Fraser who was the Applicant before the Employment Tribunal sitting at London (South).  The Respondent to the appeal is the London Borough of Richmond Upon Thames and today we have had the Appellant in person before us and we have had written submissions from the London Borough of Richmond, which have helpfully been provided to us from Mr Andrew Hillier Queens Counsel, together with a representative from Richmond’s solicitors.  The hearing took place before the Tribunal on 25, 26, 27 and 28 of February 2002 and a large number of witnesses were heard, most of them being called by the Respondent.

2	The background to the case is as follows.  The Appellant was employed by the Respondent.  She was employed as an Executive/Research Assistant, responding to an advertisement, starting on 16 October 2000.  She was dismissed on 9 February 2001.  

3	It seems to us from reading the Extended Reasons of the Tribunal, as well as the reasons which relate to an application for a review which was dismissed by the Tribunal, that what lies behind the various disputes is a complaint that the Appellant had that she was not in fact given any research assistant work and was given tasks which were beneath her once she started her employment.  This in turn led to her taking out a grievance with the Respondent, and in due course complaints developed relating to the person to whom she was responsible in her employment, as to sexual harassment and sex discrimination.

4	The Tribunal, having heard evidence over a number of days as I said, dismissed all of the allegations.  It is clear to us from the Tribunal’s decision, which is closely reasoned, that the Tribunal did not accept the Appellant’s evidence in respect of a number of allegations, but preferred the evidence called on behalf of the Respondent’s witnesses.

5	It is from that decision, as well as a decision refusing a review on 8 January 2003, that the Appellant appeals.  Her Notice of Appeal is a long document which rambles and does not clearly identify the grounds upon which she relies.  In addition to that she has provided a detailed Skeleton Argument; but that too suffers from the same defects.

6	The Appellant, of course, has appeared before us in person, as she did before the Tribunal below, and we take full account of the difficulty that she faced given the issues that she was raising – how serious they were, not just for her but of course for the individuals employed by the Respondent who were subject to her allegations.  Nevertheless we had to point out to her that the appeal in its present state does suffer from a large number of defects.

7	First and foremost, the Notice of Appeal itself does not comply with the Practice Direction.  It does not sufficiently particularise the grounds of bias or misconduct alleged against the Tribunal below.  It does not, in fact, sufficiently identify the alleged errors of law, nor does it properly particularise any alleged perversity.  We have therefore had to deduce from both the documents and the argument before us what is the central area in which the Appellant is making complaint before the Tribunal below.

8	Before us she has contended that her complaints fall into three categories.  First, as to the conduct of the hearing below by the Chairman.  Second, she claims that the decision contains errors of law and, third, she claims that she did not have a fair trial under Article 6 of the European Convention on Human Rights because she was not afforded a right to adequate representation, whereas the Respondents had leading Counsel whom they instructed.

9	We have considered her Notice of Appeal, her Skeleton Argument and the oral submissions made to us today under these three broad headings.

10	Dealing first with general points of law, it seems to us from reading the Tribunal’s decision, containing the Extended Reasons, that the Tribunal has correctly directed itself in relation to all aspects of the law on the substantive dispute.  The Tribunal has carefully set out what are the principles of law which apply in relation to each of the areas with which it was concerned; that is, sex discrimination and victimisation (see paragraphs 36 and 39 of the decision and the conclusions that then follow).

11	There is one area, though, where we consider there may be a case which justifies argument at a full hearing and that area concerns the Appellant’s terms of her contract.  It was the Appellant’s case before the Tribunal that she had a contractual right to work as a Research Assistant.  The Tribunal had to analyse what was the contract of employment and whether or not there was a binding term entitling the Appellant to work as a Research Assistant.  I should add that she was working a probationary period and the Tribunal made various findings as to how the parties need to see the work developing.  But the fact remains that it was a question of mixed fact and law for the Tribunal as to whether or not there was a contractually binding obligation that the Respondent should provide work to the Appellant as a Research Assistant.

12	In relation to that issue, and that issue alone amongst what I am calling “the Issues of Law”, that we consider that there may be a case which the Tribunal should rule upon at a full hearing.

13	Turning to the question which has been raised by the Appellant, and was the first point she raised in oral argument before us today, namely her right to adequate representation before the Tribunal, as a matter of general principle we consider this point to be hopeless.  Employment Tribunals are established so that they provide ease of access to members of the public in relation to various kinds of dispute, whether that be employment, contractual, or disputes relating to race or sexual discrimination.

14	A general proposition being advanced by the Appellant that the Tribunals are generally unfair because it would be possible for leading Counsel to represent the Respondent, whereas a lay person may have no representation because they cannot get legal aid or other forms of representation before the Tribunal, will not, we consider, have the remotest prospect of success.  

15	Although the Appellant did not refer us to any authority, under Article 6 what matters for the purposes of litigants is that they have a fair trial before an independent Tribunal within a reasonable time.  That does not give litigants in civil cases an automatic right to legal representation, particularly if, as here, the Appellant has been able, in the course of the weeks and months before the hearing, to obtain advice of one kind or another from one source or another.

16	We turn then to the third question which relates to the conduct of the proceedings below.  The Appellant complains that the Tribunal Chairman in effect misconducted himself in a number of particular ways.  For example, refusing to entertain evidence as to the grievance procedure and its outcome, unfairly rejecting the Appellant’s evidence relating to the question of whether or not there was a financial motive on the part of the Appellant in making the allegations of sexual discrimination and so on.

17	This Tribunal has observed on a number of occasions, and we repeat now, that such allegations, in order to be advanced properly before this Tribunal, must be well-founded, supported by evidence and well-established.  It is not enough for an Appellant to say that a Tribunal did not refer to certain parts of a particular witness’ evidence.  Nor is it enough to say that a Tribunal should not have rejected a particular part of the evidence called on behalf of an Appellant, or indeed a particular part of evidence established in cross-examination.  

18	In order for this head of the allegations contained in the appeal to succeed, it will be necessary for the Appellant to establish before a full Tribunal that there has been bias on the part of the Tribunal, such as to infect the decision which was made.  However, we are unable to rule out the possibility that such an allegation could be established at a full hearing, but in order for that to occur we are going to make certain stringent directions in accordance with the new Practice Direction.  It is to that which I now turn.

19	The documents lodged in the bundle prepared by the Appellant do not comply with the Practice Direction.  They did not, for example, include the decisions appealed against nor the IT3s.  Further, the Appellant’s grounds of appeal do not succinctly identify grounds which demonstrate the error of law relating to the contract nor the particular features of alleged misconduct or bias.
20	The Appellant must understand that if she is to advance an appeal in the two particular areas where we are going to permit an appeal to go forward, she must get her documents in order and she must comply with the following specific directions.

21	First, the Appellant must, within 7 days, swear, serve on the Respondent and lodge at the Employment Appeal Tribunal, an affidavit setting out with precision, her allegations of bias or unfairness relating to the proceedings before the Employment Tribunal.

22	Second, the Appellant must lodge and serve on the other side, within 7 days, an amended Notice of Appeal containing, in succinct form, the grounds of appeal in the two areas which I have identified, namely error of law relating to the contract of employment and bias/misconduct on the part of the Tribunal.

23	Third, the Appellant must prepare within 14 days and lodge at the Tribunal a paginated bundle complying with the Practice Direction, containing not more than 100 pages and including within it the decision of the Employment Tribunal (by that I mean both decisions, although the Review Decision is no longer going to be pertinent to this appeal); second, the IT3 of the Respondent; and, third, the documents relating to the appeal.

24	Fourth, this Tribunal will seek the Chairman’s comments on the affidavit which we have directed should be lodged, upon that affidavit being lodged.

25	At least 21 days prior to the date of the appeal hearing the Appellant must lodge and serve on the other side a short Skeleton Argument summarising her case on each of the two points in this appeal.  The Respondent can serve its Skeleton Argument in reply not less than 14 days before the appeal hearing.  We are therefore directing sequential exchange because of the particular background to this case.

26	Fifth, in default of compliance by the Appellant with any of the directions which are imposed upon her, this appeal will be dismissed.

27	Lastly, although I will hear further submissions on this, we propose giving a direction that the Respondents should with their Skeleton Argument supply to the Appellant and the Tribunal any documents which they wish to be included in the bundle so that we do not have any muddle occurring in the bundle, such as we have had before.

28	Finally, there are two points which I want to make to the Appellant.  First, we strongly recommend that the Appellant continue to obtain legal advice.  We have observed that she has a legal representative with her from ELAAS today but she must understand that the making of allegations by affidavit against a Tribunal Chairman and members is a matter of some seriousness and she can only include in such an affidavit matters which are well-founded.

29	Second, I must give a warning as to the cost consequences if the Appellant does make allegations of misconduct or bias by affidavit and if this Tribunal at a full hearing were to reject them.  It is likely that in those circumstances this Tribunal will order the Appellant to pay the costs if those allegations are dismissed.  There must be no doubt in the Appellant’s mind that the making of such allegations by affidavit and the proceeding with them if they are dismissed is a very serious matter indeed.