APPEARANCES
| For the Appellant |
MR COLIN SMITH
(The Appellant in Person) |
| For the Respondents |
MR TOM BROWN
(of Counsel)
Instructed by:
London Borough of Greenwich
5th floor, Riverside House West
Woolwich High Street
London
SE18 6DF |
SUMMARY
PRACTICE AND PROCEDURE
Withdrawal
Costs
Whether it was open to Employment Tribunal to dismiss Claimant's claims on withdrawal under ET rule 28. It was not on facts found. Observations on the application of r27(5) where Claimant abandoned the hearing. Appeal against withdrawal judgment allowed, together with consequential costs order.
HIS HONOUR JUDGE PETER CLARK
- The parties in this matter, which has been proceeding before the London (South) Employment Tribunal, are Mr Colin Smith, Claimant, and Greenwich Council and eight individual Council employees, Respondents. We have before us for full hearing, on the direction of Slade J following a rule 3(10) hearing held on 19 February 2010, appeals by the Claimant, first against the Judgment of an Employment Tribunal chaired by Employment Judge Zuke, promulgated with reasons on 13 May 2009, that the Claimant had withdrawn all his claims against the Respondent (the withdrawal judgment) and secondly against a further judgment by the same Employment Tribunal promulgated with reasons on 9 September 2009, ordering the Claimant to pay costs to the Respondent in the assessed sum of £10,000.00 (the costs judgment).
- By way of background, the Claimant was employed by the Respondent as a youth worker. At a Case Management Discussion held before Employment Judge Hyde on 4 December 2008, the Claimant's claims against the Respondent, set out in six claim forms, comprised essentially constructive unfair dismissal and disability discrimination, his disability being dyslexia.
- The case was listed for a full merits hearing over 10 days. That hearing commenced before Judge Zuke's Employment Tribunal on Tuesday, 5 May 2009. An agreed list of issues was produced by the parties. The Claimant appeared in person; Mr Tom Brown of counsel for the Respondents.
- The first day was principally spent by Employment Tribunal reading the Claimant's witness statement and a bundle of some 500 documents. On the second day, Wednesday, Mr Brown cross-examined the Claimant until the hearing was adjourned at 4.00pm.
- On the third day, Thursday, 7 May 2008, the Claimant asked the Employment Tribunal not to sit the following day, that is Friday, 8 May 2008. He read out a statement which is in the bundle before us in which he said this:
"Dear Tribunal because of the stress that I was subjected to yesterday I respectfully ask that you consider allowing myself to take one whole day break from the full merits hearing because of my disability of dyslexia."
He then develops that application for the next day's hearing to be postponed.
- We take up the sequence of events from Employment Tribunal's withdrawal judgment reasons, paragraph 8 to 16:
"8. After the Claimant had made his application, the Tribunal decided that the best time to consider that application was after the Claimant had concluded his evidence, and had called his witness Ms Barnett. The Claimant and Mr Brown agreed with that proposal.
9. The Claimant's evidence was concluded at 12.55. The Tribunal then adjourned for lunch and resumed at 2.00pm when Ms Barnett gave her evidence. That evidence was concluded at 2.55pm. The Tribunal had read and accepted in evidence the statement of Mr Whitman on behalf of the Claimant. The Claimant did not call Mr Whitman to give evidence. At that point, the Claimant's case was closed.
10. The members of the Tribunal briefly retired to give further consideration to the Claimant's application, which the Tribunal had discussed in chambers over the luncheon adjournment.
11. The Tribunal returned, and I informed the parties that the Tribunal had a proposal to make with regard to the Claimant's application that we did not sit on Friday. That proposal was that the Tribunal adjourn for the day, the time by then being 3.00pm and that we continue the hearing on Friday, but that the Council call only two, or perhaps three witnesses at most. I explained the basis of our proposal was that by finishing at 3.00pm, and with an understanding that the Council would call two or perhaps three suitable witnesses only, this would probably give the Claimant sufficient time to conclude his preparation for his cross-examination of that limited number of witnesses. The hearing would then be adjourned until Tuesday, 12 May, as we were not sitting on 11 May. That would give the Claimant three clear days to conclude his preparation for his cross-examination of the Respondent's remaining witnesses.
12. Mr Brown was about to take instructions on that proposal when the Claimant intervened. He said that as the Tribunal had decided to refuse his application not to sit for the whole of Friday, he was leaving. I said that the Tribunal had not made a decision, we had merely made a proposal, on which we were about to seek his views. The Claimant repeated that the Tribunal had made its decision, and I repeated that the Tribunal had not made a decision. The Claimant repeated that the Tribunal had made a decision, and that the decision amounted to disability discrimination. He began to pack up his papers and belongings, and continued to do so as he spoke. I repeated that the Tribunal had not made a decision, we had merely made a proposal. The Claimant said that we had made a decision, that he no longer trusted us, and that he was leaving.
13. I asked the Claimant if he intended to return to the hearing. The Claimant said that he did not. I told the Claimant that the Tribunal's role was to hear his case, and suggested to him that we adjourn the hearing for, say, 15 minutes to give him an opportunity to consider his position. The Claimant declined that opportunity. I asked the Claimant if he was abandoning the hearing, and he confirmed that he was.
14. Mr Brown then offered to speak to the Claimant outside the Tribunal hearing room. The Claimant declined that offer. The Claimant then left the hearing room. His parting words were that he intended to appeal and to take the Council to court elsewhere. He bid the Tribunal "Goodbye".
15. Mr Brown asked the Tribunal for an opportunity to speak to the Claimant, which we granted. The hearing was adjourned for approximately 15 minutes.
16. Mr Brown returned to inform us that he had spoken to the Claimant, and had told him that the Tribunal had not made a decision about his application that we do not sit on Friday. He informed us that the Claimant then left the Tribunal building."
The Withdrawal Judgment
- The Employment Tribunal concluded, at paragraph 18, having considered ET rule 25:
"In our view, the Claimant's words and conduct in declining an adjournment to consider his position, informing the Tribunal that he was leaving the hearing and not returning, that he was abandoning the hearing, and that he no longer trusted us, amount to the oral withdrawal of all his claims. His words and conduct were unequivocal."
- As I say, in arriving at that conclusion the Tribunal considered rule 25 which provides insofar as is material:
"(1) A Claimant may withdraw all or part of his claim at any time - this may be done either orally at a hearing or in writing in accordance with paragraph (2) […]
(3) […] withdrawal takes effect on the date on which […] the Tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to paragraph (4), proceedings are brought to an end against the relevant Respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs."
Sub-paragraph (4) provides that the Respondent can apply for a withdrawn claim to be dismissed.
- The Tribunal also considered rule 27 at paragraph 21 of their reasons. Rule 27(5) provides:
"If a party fails to attend or to be represented (for the purpose of conducting the party's case at the Hearing) at the time and place fixed for the Hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the Hearing to a later date."
They said:
"In other words, where a Claimant fails to attend the hearing, the Tribunal may exercise its discretion to hear evidence from the Respondent, and give judgment on the merits of the claim, in the Claimant's absence. However, in the present case, the Claimant attended the hearing, but chose to leave it part way. Therefore, in our view, rule 27 does not apply."
The Withdrawal Judgment Appeal
- The withdrawal judgment appeal was rejected on the paper sift by HHJ McMullen QC as having no reasonable prospect of success. He directed no further action on the appeal under rule 3(7) of the EAT Rules. However, at a rule 3(10) hearing before Slade J, to which we have referred, that Judge concluded that the withdrawal judgment appeal did raise an arguable point of law, formulated at paragraph 8 of her judgment in this way:
"The Employment Tribunal does not find that there were express words that the claims made by Mr Smith against the Respondent were withdrawn. The Employment Tribunal based its decision on Mr Smith leaving and abandoning the hearing. In my judgment, it is arguable that abandonment of a hearing is not the same as withdrawing a claim. At the very least it is arguable that the Claimant's position was uncertain. No attempt was made to achieve certainty by Mr Smith being asked to record his withdrawal of the claims in writing. He was acting in person. He said that he was dyslexic. In the circumstances, in my judgment, it is arguable that the Employment Tribunal erred in holding that Mr Smith had withdrawn his six claims. Accordingly the appeal against the Decision that he had withdrawn his applications is to proceed to a full hearing."
The Judge then goes on to deal with the related costs appeal which was also directed to proceed to this full hearing.
- What that judgment does not deal with explicitly, and nor does Slade J's Order dated 22 February 2010, is the Appellant's complaint of bias, or the appearance of bias, on the part of Employment Judge Zuke. That complaint was raised in his grounds of appeal and, we understand, was separately the subject of complaint to President of the Employment Tribunals. Consequently the steps set out at paragraph 11 of the EAT Practice Direction, reflecting the approach of Lindsay P in Facey v Midas Retail Security [2001] ICR 287, involving affidavit evidence from the parties and comments of the Employment Tribunal Judge and members have not been taken.
- Mr Brown submits that the effect of Slade J's judgment was to allow the withdrawal judgment appeal through to a full hearing only on the point identified at paragraph 8 of her judgment. It follows that the bias appeal, he submits, was rejected at the rule 3(10) stage as it was on the paper sift by Judge McMullen. We are unable to accept that submission. Paragraph 1 of Slade J's Order dated 22 February 2010 simply records: "The Appellant's application pursuant to Rule 3(10) is allowed." And, by paragraph 2: "The appeal be set down for a full hearing." There is, therefore, no limitation on the grounds of appeal before us.
- Incidentally, Mr Brown takes no point on the fact that the issue identified at paragraph 8 of Slade J's judgment was not a point taken in the original grounds of appeal and no permission to amend has been sought or given. That is a characteristically realistic approach by Mr Brown, if we may say so, since the issue is clearly identified in the rule 3(10) judgment and Mr Brown has come here today prepared to respond to it.
- As to the merits of the point, having listened to the parties' submissions, developing those helpfully set out in the respective skeleton arguments, we are quite satisfied that the Tribunal fell into error in treating the Claimant's words and conduct, as recorded by the Employment Tribunal at the 7 May hearing, as amounting to a withdrawal of his claims, upon a proper construction of rule 25.
- Pausing there, Mr Smith applied for the Employment Judge's notes of evidence because he wishes to challenge some of the detail recorded in the Tribunal's reasons, which we have earlier set out. In the event it is unnecessary for us to rule on that particular application.
- On the face of the Tribunal's reasons, the real clue we think lies in the Claimant's parting remark, recorded at paragraph 14. that he intended to appeal and to take the Council to court elsewhere.
- An intention to appeal is, in our judgment, wholly inconsistent with a withdrawal of his claims. Mr Brown raised the interesting argument that, at that stage, there was nothing for the Claimant to appeal. As the Employment Judge makes clear in the Tribunal's reasons what was put forward by the Tribunal in relation to Friday's hearing was not a ruling but a proposal. We cannot accept that submission. The Claimant's perception, rightly or wrongly, was that the Tribunal had rejected his application for a postponement of Friday's hearing. Such a case management decision is capable of appeal. Whether the appeal failed, or would have failed, on the basis that this was a proposal by the Tribunal, not a ruling, is, in our view, nothing to the point.
- What should the Tribunal have done? We venture to suggest that if the Tribunal were considering the Claimant's abandonment of the hearing as a withdrawal of his claims they ought, through the Employment Judge, to have asked him in terms: "Are you withdrawing your claims?" If the answer was yes, then the order made was appropriate; if no, then the Tribunal ought to have considered rule 27 rather differently from the way in which they did consider it.
- First, rule 27(5) does not require the Tribunal to hear the Respondent's evidence when a Claimant absents himself; it may do so, or it may adjourn the proceedings, or it may simply dismiss the claim, having first considered any information placed before it under rule 27(6) (see Roberts v Skelmersdale College [2003] ICR 1127, paragraph 16 per Mummery LJ).
- Secondly, we see no reason why the Tribunal could not have informed the Claimant, when he indicated that he was abandoning the hearing, that they would adjourn the hearing for 15 minutes (the suggestion referred to at paragraph 13, the reasons) and that the hearing would then resume. He should have been warned that his failure to attend at that time before the Tribunal would engage the provisions of rule 27(5) and of the three courses then open to Tribunal under the Rule. If he then failed to attend at the time and place fixed for the hearing it would have been open to the Tribunal to dismiss the proceedings under that rule. They did not do so, erroneously believing that rule 27 did not apply in such circumstances. It follows that we shall allow this appeal and set aside the withdrawal judgment.
The Costs Judgment Appeal
- At a costs hearing held on 7 September 2009 the Council put its application for costs on three bases. First, that the Claimant had withdrawn his claims, as the Tribunal earlier found; secondly, that the proceedings were misconceived or vexatious from the outset and, thirdly, that the Claimant had conducted the proceedings unreasonably by sending derogatory emails about the Respondents to third parties.
- The Tribunal upheld the application on the first basis only. It felt unable to reach a decision on the second basis and found it unnecessary to decide the third ground for the costs application.
- Mr Brown realistically accepts that the Claimant, having succeeded on the withdrawal judgment appeal, the costs order necessarily falls away, as presaged by both the President and Slade J at earlier stages in these appeal proceedings. In making that again realistic concession, Mr Brown should not be taken to have abandoned his second and third grounds for costs, on which no ruling has been made between the parties, should the question of costs again arise in these proceedings.
- Accordingly, we also allow the costs appeal and set aside the costs order made against the Claimant.
Disposal
- In light of our constructions of both ET rules 25 and 27, Mr Brown urges us to remit the matter to the same Tribunal chaired by Employment Judge Zuke to reconsider its ruling of 7 May last year and then to further consider and determine grounds two and three of the Respondents' costs application. He does not suggest that we should substitute our own decision for that of the Employment Tribunal (see passim Bennett v London Borough of Southwark [2002] ICR 881 Court of Appeal).
- We return to the unresolved bias complaint raised by Mr Smith. We are, for the procedural reasons explained earlier, not in a position to rule on that complaint and, therefore, we express no view on it. That will be a matter for separate investigation by the London (South) Regional Employment Tribunal to whom the matter has been delegated by the Employment Tribunal's President. However, we take account of the Claimant's perception, if the matter returned, following these successful appeals, to the same Tribunal for further consideration. If the same result were obtained by a different route the perception of unfairness will inevitably arise.
- In these circumstances we shall take the course, however unpalatable, which my colleagues and I apparently should have taken in the case of Bennett: remit the case to a fresh Tribunal for a complete rehearing on the merits.
- We do so with this warning to Mr Smith. He must engage with the process which he has chosen to institute in the Employment Tribunal. Case management matters and procedural rulings are for the Tribunal, subject to a very limited opportunity for appeal. He should be wary of seeking to dictate his own agenda, lest his case fails before it is finally determined on its merits.
