Appeal No.UKEAT/0086/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 July 2008

Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)

MR A ZEYNALOV	APPELLANT

BP EXPLORATION (CASPIAN SEA) LIMITED & ORS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A ZEYNALOV
(The Appellant in Person)	
For the Respondents	MR D READE
(One of Her Majesty’s Counsel)
Instructed by: 
Messrs McGrigors LLP Solicitors
Pacific House
70 Wellington Street
Glasgow G2 6SB	

SUMMARY

PRACTICE AND PROCEDURE
  Striking-out/dismissal
  Right to be heard

The ET proposed to strike out the Claimant’s claims and sent a Rule 19(1) letter to that effect.  The Claimant asked for an oral hearing.  The Employment Judge declined and, after considering written submissions only, struck out the claims.

It was conceded on appeal that the Employment Judge had, under Rule 18(6) and (7) no power to refuse an oral hearing; but the Respondents argued that, in reliance on Bache [2000] ICR 313 CA I should decide that an oral hearing would have achieved nothing because the Employment Judge was unarguably right.  Held that the denial of an oral hearing required by the Rules was too fundamental for the Bache approach to be applied even though the Employment Judge’s reasons were very likely to be right.  Remitted to a fresh Employment Judge.

HIS HONOUR JUDGE BURKE QC
The History
1.	This is an appeal by Mr Zeynalov against the judgment of the Employment Tribunal, at Reading, in the person of Employment Judge Hill, sent to the parties on 22 November 2007, that various claims put forward to the Tribunal by Mr Zeynalov in a claim form received by the Tribunal on 1 October 2007 be struck out.  

2.	It is important to state the history of the litigation of which that claim, and that order of the Tribunal, formed part.  Mr Zeynalov was employed by BP Exploration (Caspian Sea) Limited, the second Respondent, from October 1999 to September 2006.  Those dates do not appear to be in dispute.  He is an Azerbaijani citizen. He lives in Baku and worked in Azerbaijan, with, he says, various trips abroad for the second Respondent, a U.K. registered company which operates the BP side of a joint venture with the Azerbaijani state oil company.  He asserts that, in that employment, he did work for other BP companies, including BP Plc (who are the first Respondent), both in Azerbaijan and elsewhere.

3.	On 1 December 2006 (within three months of his dismissal) he issued proceedings in the Tribunal against the second Respondent, BP Plc and other respondents, claiming that he had been unfairly dismissed and that he had been subjected to detriment for making a protected disclosure or disclosures.  He claimed compensation of £5 million.  That claim was struck out by the Tribunal in a judgment dated 29 October 2007, on the grounds: (1) that the claims were misconceived and (2) that Mr Zeynalov had behaved unreasonably during the course of the Tribunal’s hearing to decide whether those claims should be struck out, on 8 and 9 October 2007.  That hearing took place before the same Employment Judge.  Mr Zeynalov appealed against that decision of the Tribunal;  but his appeal was rejected at the sift stage, and again at an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules by HHJ Serota QC, on 21 May of this year.  I have read Judge Serota’s judgment which has, in the last few days, become available in typed form.

4.	A week before the hearing on 8 and 9 October, Mr Zeynalov presented a further claim.  It is this further claim which is the subject of the Tribunal’s decision from which today’s appeal is brought.  That claim form was accompanied by four typed pages which set out the purpose of the new claim.  They are headed: “Adding New Claims and Amending Original Claim”; and then say:

“In accordance with the rule 10(2)(q) of the Employment Tribunal Rules and Procedures 2004, I request an order to be made allowing me to add claims and make appropriate amendments to the original claim presented to the Employment Tribunal on December 1, 2006.  Requested additional claims and amendment are: 
And then he refers to:
“  - 	Discrimination and victimization on grounds of race and ethnic origin …
	-	Breach of Contract …
	-	Additions of new respondents in the light of my original claims and additional respondents coming out of new claims
	-	Other changes technical
	-	Redundancy as if dismissal”

5.	On the third of those four pages Mr Zeynalov sets out (with perhaps greater clarity) what the new claims were.  They were: 
1.	Unfair dismissal, contrary to s.104B, of the Employment Rights Act 1996; i.e. automatic unfair dismissal for asserting a statutory right.
2.	Discrimination within the Race Relations Act 1976 in the form of direct discrimination, indirect discrimination, victimisation and harassment.
3.	Breach of contract, wrongful dismissal and constructive dismissal.
4.	Age Discrimination.

In those typed pages reasons are given why those additional claims are sought to be added by way of amendment or otherwise.

6.	Although it seems that Mr Zeynalov intended, by putting forward this claim form, merely to seek to amend his original claim form, what he, in fact, had done was to institute new claims which (except in one respect) had, under the Employment Tribunal’s Rules, to be accepted and then became live claims in new proceedings.

7.	At the conclusion of the hearing before the Employment Judge of the strike‑out applications in relation to Mr Zeynalov’s first claim, the Employment Judge advised Mr Zeynalov that, as the new claims raised complaints which appeared in and had been or were about to be the subject of decision in the first claim, she was considering striking out the new claims; and, pursuant to rule 19(1) of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, a letter was sent to Mr Zeynalov by the Employment Tribunal, on 10 October 2007, informing him that consideration was to be given to striking out all of the new claims and setting out the basis on which such consideration was going to be given.

8.	It is not necessary for me to repeat the contents of that letter in this judgment; but the grounds on which the striking out was to be considered were clearly set out, distinguishing between those grounds which indicated the possibility that the new claims were vexatious and those grounds which indicated that the new claims had no reasonable prospects of success.  Mr Zeynalov was told that he should provide any comments to the Employment Tribunal in writing by 31 October.  Meanwhile, the proceedings were stayed, thereby sensibly procuring that time for the Respondents to put in a response did not run.

9.	By 31 October both Mr Zeynalov and McGrigors, solicitors acting on behalf of the Respondents, submitted their written comments or arguments.  The Employment Tribunal permitted each side to put in further written submissions in answer to the other’s, by 7 November; and Mr Zeynalov did so on 6 November.  He asked for an opportunity to put in yet further submissions and for an oral hearing.  The Employment Judge, however, decided that she should proceed, on the basis of the material submitted so far, to consider and adjudicate upon the strike‑out issues without an oral hearing.

10.	On 22 November the Tribunal sent to the parties her judgment on those issues, with detailed written reasons.  Her judgment was that Mr Zeynalov’s request for further time to put in submissions, and for an oral hearing, should be refused, that the age discrimination claim should be dismissed on withdrawal, because Mr Zeynalov had said in his written submissions that he had never intended to raise such a claim (and, indeed, he does not now seek to pursue it) and that the claims of unfair dismissal, race discrimination and breach of contract should be struck out.  As to the claim under section 47B of the 1996 Act, in respect of detriment for making protected disclosures, she discovered from the Employment Tribunal’s file that that claim had, erroneously, not been accepted by the Tribunal.  She, therefore, considered whether to review that non‑acceptance (whether under rule 3(3) or rule 34(1)(a) of the Tribunal’s Rules does not matter) but declined to do so, because, if it had been accepted it would have been struck out (as had the claims to which I have just referred) and, therefore, it was not appropriate to review the non‑acceptance, in the interests of justice.

11.	I will come later to the reasons given by the Employment Judge for her judgment.  I take that course because Mr Zeynalov has, in his skeleton argument, limited his attack on the Employment Judge’s judgment to two grounds only, from the eight grounds of appeal set out in his Notice of Appeal.  By those two grounds he asserts:  (1)  that the Employment Judge acted in error of law in reaching her decision without an oral hearing; and (2) her strike‑out decision was perverse and subject to apparent bias.  His assertion as to bias, in reality, involves and is based upon assertions that in a number of respects (and he says today, indeed, in every respect) the Employment Judge’s conclusions, or reasons, upon which she based her decision to strike out his claims were wrong in fact and law.

The absence of an oral hearing
12.	That being the background to this appeal, I turn to the effect of the absence of an oral hearing.  Mr Zeynalov submits, and Mr Reade on behalf of the Respondent accepts, that the Employment Judge was not permitted by the 2004 Rules to strike‑out Mr Zeynalov’s claims without a hearing.

13.	Rule 18(7) of Schedule 1 to the 2004 Regulations (which Schedule contains the relevant rules) provides as follows:

“(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order:  - 
….

(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;”

Rule 18(6) provides:

“(6) Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The judgments [or orders] listed in paragraph (7) must be made at a pre-hearing review or a Hearing if one of the parties has so requested. If no such request has been made such judgments [or orders] may be made in the absence of the parties.”

14.	It is accepted by Mr Reade that the effect of those two provisions taken together is that, if one of the parties requests an oral hearing of a strike‑out application or when the Tribunal is considering strike‑out after having decided for itself to initiate such a process, the party which asks for an oral hearing is entitled to an oral hearing.  That that is so is supported by the provisions of rule 19(1) which are that, if an order is to be made under rule 18(7), notice must be given to the party against whom it is proposed to make such an order, but that requirement does not exist if the party against whom it is proposed to make such an order has been given an opportunity to give reasons orally as to why the order should not be made.  Rule 19(1), in my judgment, underlines the importance of an opportunity for the party who is facing a strike‑out order to put forward orally his reasons why such a draconian order should not be made against him.

15.	Mr Zeynalov had requested an oral hearing.  Therefore, the Tribunal should, in law, have listed a pre‑hearing review at which the parties could have put forward their oral submissions, in addition to their written submissions.  The Employment Judge’s decision to refuse Mr Zeynalov the opportunity to put in further written submissions was a legitimate case management decision; but her reasons for refusing Mr Zeynalov’s application for an oral hearing (set out at paragraph 8 of her judgment), namely, that the argument before her was primarily a legal argument, that there had been ample written submissions and that, given Mr Zeynalov’s behaviour at the oral hearing, on 8 and 9 October, she did not consider that an oral hearing would be effective, could not and cannot overcome the clear provisions of the rules, however understandable those reasons might be.  Thus, the decision which was made by the Employment Judge was the subject of an important procedural error, in that Mr Zeynalov was deprived of the oral hearing to which he was entitled.

Remission Without More
16.	Mr Zeynalov submits that, as a result, the Employment Judge’s judgment must be set aside and the strike‑out issues must be remitted to a fresh Tribunal.  Mr Reade submits that such a step is not necessary, just or proportionate because, on any such remission, the Tribunal would inevitably reach the same conclusions, whatever submissions or material (oral or otherwise) Mr Zeynalov put before the Tribunal.  He relies for that submission on the decision of the Court of Appeal in Bache v Essex County Council [2000] IRLR 251.  Mr Zeynalov, unsurprisingly, does not welcome the prospect that the fruits of the Employment Judge’s error should thus be removed from his reach.  The Respondents, on the other hand, wish to see that this second set of proceedings (which, it appears from what Mr Zeynalov has said, were not intended to constitute a fresh set of proceedings at all) should suffer as soon as possible the same fate as the first set of proceedings.  I must, therefore, decide whether the course urged on me by Mr Reade is open to me in law and is appropriate in the circumstances of this case.

17.	In Bache the Tribunal, during the course of the substantive hearing of the Claimant’s complaints, barred her representative (who was unqualified and a personal friend) from continuing to represent her because of the manner in which he was performing his role as her representative on her behalf.  The Court of Appeal, differing from the Employment Appeal Tribunal, held that the Tribunal had no power under the Rules (as they then were) to take that step.  There had, therefore, been a procedural error.  However, it was submitted on behalf of the Respondents that there should be no remission because the result would have been the same, had that procedural error not occurred.  Gibson LJ, at paragraph 28 to 33, said:

28

		         (4)  Correctness of decision
Mr. Roe submitted that this court was bound in the circumstances to remit the case to the Tribunal for a rehearing.  Mr. Linden however drew our attention to the decision of this court in Dobie v Burn International Security Services (UK) Ltd. [1985] IRLR 329 in arguing that that was not inevitable.  In Dobie [1983] IRLR 329 where there had been a misdirection by the tribunal, Sir John Donaldson M.R. said at p. 332:

“Once you direct that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly an unarguably right notwithstanding that misdirection.  It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand.  If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.”  

29

Mr. Linden submitted that in the present case there is no reason to think that the sacking of Mr. Leggett had, or might have had, any effect whatsoever on the outcome of the case, and said that in those circumstances the appeal should be dismissed.

30

Mr. Roe contended that this court could not be certain that if Mr. Leggett had been allowed to continue, the outcome would have been the same.  He referred us to R. v Leicester JJ, ex parte Barrow [1991] 2 QB. 260 at p. 290 where Lord Donaldson M.R., in quashing an order because of  procedural unfairness, said: 

“I cannot be sure that the applicants were not prejudiced.”

31

Mr. Roe also referred us to R. v Cheshire County Council, ex parte C  [1998] ELR. 66.  In that case the day before a hearing before a special educational needs tribunal the expert, who was to represent a parent as well as give evidence, went ill, but the tribunal refused the parent an adjournment.  The parent had the statutory right to be represented.  In judicial review proceedings, Sedley J. referred to the unqualified right of the parent to be represented and held that fairness had required the tribunal to allow an adjournment.  

32

Both these cases are distinguishable on their facts.  In ex parte Barrow a McKenzie friend had wrongly been excluded and so there could have been points taken with the friend’s assistance which were not taken.  In the present case Mr. Leggett remained assisting Mrs. Bache throughout the remainder of the proceedings.  In ex parte C the intended representative was also an intended witness and his evidence was not heard.  In the present case there does not appear to have been any evidence which was not given which might have been given.  Mr. Leggett was specifically allowed to prompt Mrs. Bache in re‑examination.  No witness was not called who might have been called.  Mr. Leggett’s written prepared questions were made available to Mrs. Bache and he was at hand to supplement or clarify them.  He helped prepare the extensive written closing submissions for Mrs. Bache.  I would add this.  The Tribunal had had the opportunity to hear and see Mr. Leggett acting for Mrs. Bache and found that he was not assisting.  It had also seen Mrs. Bache both give evidence and also cross-examine, and in the light of that it decided to sack Mr. Leggett.  Quite clearly it formed the view that she could do better than he could in prosecuting her case.  There is no reason whatever to think that if he had continued to act for Mrs. Bache, as he would have done but for his sacking, it would have made the slightest difference to the evidence given by either party or to the submissions made by or on behalf of each.  The case was one which was always going to be extremely difficult for Mrs. Bache to win, and Ferris J. has set out in his judgment the relevant facts.  In the circumstances, despite the fact that Mrs. Bache was wrongly deprived of her representative, I see no justification for giving her a second bite of the cherry so many years after the relevant events.  I am satisfied that the Tribunal’s error had no effect on the outcome of the case.  

33

For these reasons, although differing from the EAT’s reasoning, I would dismiss this appeal.”

18.	Mummery LJ, at paragraph 35, said this at sub-paragraph 5:
“Even if  the appeal tribunal or the Court of Appeal find that a ruling has been made in error of law, it does not follow that the appeal should be allowed and that the case should be reheard by the tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the appeal tribunal is sure that  the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred,  it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing. There are no good grounds for ordering a rehearing of this case.”

19.	Mr Zeynalov submits that there is a number of factual issues which, had he been given the opportunity to do so, he would have wanted to raise at an oral hearing.  He points to numerous assertions as to the facts set out in Mr Reade’s Skeleton Argument, which assertions of fact are set out as background going, essentially, to the issue whether the Employment Tribunal had jurisdiction to hear Mr Zeynalov’s complaint, and says that he wishes to contest many of those assertions of fact, that, although he was nominally employed by the Second Respondent, he worked to a substantial degree on behalf of BP Plc, that he worked outside Azerbaijan for BP Plc, the Second Respondent, and other companies and that the assertion, for example, that the Second Respondent only carried on business in Azerbaijan is mistaken because they carried on business in the U.K. and in other countries.  That is not an exhaustive list of the factual points that Mr Zeynalov wishes to take but gives something of their flavour.

20.	He submits that the only proper remedy is for him to have the right now to have a hearing before a different Employment Judge, at which he could advance the submissions which he would have liked to have advanced before Employment Judge Hill in the latter part of last year.  If there is no remission, he submits, those points will not be aired;  and if I were to accede to the invitation of Mr Reade in effect to substitute myself for the Tribunal, under section 35 of the Employment Tribunals Act he would be deprived of a hearing at the Tribunal level and, as Mr Reade has pointed out on his behalf (as it is Mr Reade’s duty to do), he would be left with an appeal only to the Court of Appeal, rather than, as would have been the case had the oral hearing, to which he was entitled, been granted, having the right to seek to appeal to the Employment Appeal Tribunal and thence to the Court of Appeal.

21.	Mr Reade submits that those factual points raised by Mr Zeynalov go only to the issue of jurisdiction.  As to unfair dismissal, the Employment Judge concluded that Mr Zeynalov’s claim should go no further, not only because there was no jurisdiction but also because the principle of res judicata applied, since Mr Zeynalov had claimed unfair dismissal in his first set of proceedings and, subject to any further appeals, that claim has finally come to an end with the failure of his appeal against the original strike‑out order.  Similarly, the unfair dismissal claim, as raised by new proceedings in October 2007, was way out of time;  and it could not possibly be said to be not reasonably practicable for Mr Zeynalov to put his claim forward in time, because he had put it forward in the first set of proceedings in time; for those two reasons, leaving aside any issue as to jurisdiction, the Employment Judge’s decision (oral hearing or no) was unarguably right.

22.	In relation to race discrimination, the Employment Judge struck out Mr Zeynalov’s claims, firstly, because he had sought to get them in by way of amendment to the first set of proceedings and had been not allowed to do so by the Tribunal (it would seem twice but certainly once) and, therefore, he could not take those any further forward; secondly, save in respect of the dismissal itself, there had been no grievance and, therefore, section 32 of the Employment Act 2002 barred those claims from going forward; thirdly they were all out of time.  These reasons were unarguably right, Mr Reade submitted, whatever might be said about jurisdiction.

23.	So far as breach of contract is concerned, the claims were out of time and, although the Employment Judge decided against Mr Zeynalov upon the basis of forum conveniens, which decision might be open to argument (without any concession from Mr Reade), her other reasons were unassailable.  As for the claim under section 47B that was struck out on a jurisdictional basis, although, it seems to me, there might have been a res judicata point there too which was not taken.

24.	Mr Reade submits that the prejudice to his client from a remission, in terms of costs, time and inconvenience, would be great.  An order for costs has already been made against Mr Zeynalov, in a very large sum, which cannot be enforced in Azerbaijan and is unlikely to be enforceable to any successful extent here.

25.	I take the view that there are likely to be substantial costs incurred, whatever my decision on this point.  As for prejudice, on the one hand a remission creates prejudice to the Respondents by recreating a stage of the proceedings which has already gone.  On the other hand, it deprives Mr Zeynalov of a stage in the proceedings at which he was entitled to an oral hearing.  I have decided that I am going to decide whether there should be a remission, or whether I should proceed to hear the substance of the strike‑out application, pursuant to section 35 and the decision in Bache, before hearing detailed argument on the reasons for striking‑out orders being made or not made, and have made that clear to the parties.

26.	Mr Reade submits that I must, in making that decision, consider the strength of the Respondent’s case on strike‑out, and I have certainly done so.  Indeed, I have been through all of the written submissions and all of the papers and the arguments, in detail, and followed them through (making notes as I went) over a very considerable time, with a view to completing preparation and, if I were to go along with Mr Reade’s proposed course, being able, after hearing both sides, to giving a judgment which would cover all points; and I was fully prepared, after such arguments, to give such a judgment.  But, even as I did so, fully aware of section 35 of the Employment Tribunal Act and very mindful of what the Court of Appeal had said in Bache, I had a growing feeling that, in a case in which the nature of the procedural error was so major as to deprive Mr Zeynalov of the oral hearing which the Rules plainly regard as essential, it would not be right, balancing the interests of justice to the rival parties, unless Mr Zeynalov agreed that I should do so (which he has not), for me to proceed, in effect, to have before me the oral hearing of which Mr Zeynalov was deprived.

27.	The nature of the procedural error on the part of the Tribunal is, in my judgment, much more substantial and sharp than that in Bache where, as is clear from paragraph 32 of the judgment of Peter Gibson LJ, it did not seem that the Claimant had really been deprived of anything which could be of value.  I have considered the strength of the reasons given by the Employment Judge for striking out.  I accept that the factual disputes raised by Mr Zeynalov go mostly to jurisdiction, and that there may be some possible weakness in the Employment Judge’s decision on jurisdiction, both as to unfair dismissal and racial discrimination (as hinted at by HHJ Serota QC in his judgment in the other appeal).  But I also accept that on other matters (in particular res judicata, section 32 of the 2002 Act and out of time) the Respondent’s case appears to be very strong.  Despite that, in my judgment the absence of any oral hearing at all is so major and represents such a departure from the over‑riding objective of dealing with cases justly that Bache should be distinguished and cannot properly be applied;  the issue of striking out and, together with it, of reviewing the decision not to accept the complaint under section 47B should be, and must be, remitted to an Employment Judge.

28.	Accordingly, I turn to consider the nature of that remission.  Mr Reade submitted that I should simply remit to the Tribunal, leaving it to the Tribunal to allocate to the hearing of the strike‑out issues whichever Employment Judge it chose to allocate.  Mr Zeynalov submitted that, in particular because of his allegations of bias, a re‑hearing should be before a different Employment Judge.  The procedural error was unfortunate, although it was, as I have said, understandable.  One of the reasons which the Employment Judge gave was what had happened at the hearing before her on 8 and 9 October, which ended with Mr Zeynalov being struck out because of his unreasonable conduct.  However, Mr Zeynalov is not said to have conducted himself other than entirely properly before HHJ Serota QC; and he has not conducted himself other than entirely properly before me.  It seems to me that, while before Employment Judge Hill, if the matter goes back to her, there may be difficulties arising out of the history, those difficulties can, in a practical sense, be avoided by remission to a different Tribunal.  

29.	I say this without reference to or reliance upon Mr Zeynalov’s case of bias, which it has not been necessary to investigate for present purposes and as to which I say nothing at all.  My decision that there should be a remission to a different Employment Judge is not based, in any sense, on the allegation of bias, but on my view that such a remission will be more likely to ensure that the remitted hearing takes place expeditiously and fairly and at less expense and, therefore, consistently with the over‑riding objective and without difficulties of the type which have affected this litigation in the past.  

Conclusion
30.	Accordingly, I allow the appeal.  I remit this case to a fresh Employment Judge to consider the issues as to striking out the various claims made by Mr Zeynalov in the proceedings commenced on 1 October 2007 and to consider whether his section 47B claim, which was not accepted by the Tribunal, should be now accepted.