Appeal No. UKEAT/0504/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		     At the Tribunal
		     On 7 September 2011

Before
HIS HONOUR JUDGE McMULLEN QC
MS K BILGAN
MR P GAMMON MBE

MRS B JONES	APPELLANT

MRS ANN CORBIN T/A BOO	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M JONES
Solicitor (Husband)	
For the Respondent
	Debarred	

SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

The Employment Judge did not consult the members before refusing the Claimant’s application for an adjournment so she could read and give instructions on the Respondent’s witness statements produced on the day and in breach of the directions.  There was evidence from one member that such a decision had been pre‑determined.  Magenta applied.  The Respondent was debarred.  Remitted to fresh Employment Tribunal.  No order on the other grounds advanced albeit they had substance.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about procedural fairness primarily; there are other points, but we will focus on that.  It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge John Warren sitting for one day at Reading, registered with Reasons on 21 January 2010.  The Claimant was represented by her husband, who is a practicing solicitor, and the Respondent appeared in person.  The Employment Tribunal upheld the Claimant’s claim of wrongful dismissal and ordered the Respondent to pay £45, being a week’s pay.  Her claim of unfair dismissal was dismissed, and the Tribunal made no award under section 38 of the Employment Act 2002.

3.	The Claimant appealed against that decision.  Procedural Judges including myself have dealt with this matter by seeking the comments of the Judge and the wing members on the contentions in the Notice of Appeal, and we are grateful to them for their responses.  The matter was set therefore for a full hearing before us by order of Silber J, and issues were identified.

4.	This case can be dealt with very quickly because the procedural point is at the heart of the appeal. Although four grounds of appeal are weighed by Mr Jones, he accepts that if he succeeds on the first point, the only conclusion would be for the Judgment to be set aside and for remission, and in his contention remission should only be made to a different Tribunal.  He accepts that the finding in his wife’s favour on the wrongful dismissal point would be set aside for any procedural irregularity, but that can be discussed at a later stage.

The facts and the law
5.	The short facts relating to the major point in the appeal can be summarised from the skeleton argument that Mr Jones has prepared.  Case management orders were made for the hearing of the case before the Employment Tribunal, which the Respondent failed to comply with.  She has also failed to comply with procedural orders in this court, and is debarred from attending.  The Respondent produced witness statements from two witnesses and a bundle of documents; these were provided on the day.  The Claimant herself is Hungarian, and English is not her first language.  

6.	The legislation relevant in this case is section 104 of the Employment Rights Act, which is the protection of persons who bring proceedings or allege an infringement of a right.  That was what the case was about. 

7.	The requirement for a case management decision to be made by a Tribunal of three when it is constituted at a full hearing is set out in Magenta Security Services v Wilkinson UKEAT/0385/06.  

Discussion
8.	Since we have decided to uphold ground 1 of the Notice of Appeal, we can focus on the specific points made.  At the start of the hearing Mr Jones applied for an adjournment so that he could consider and take instructions upon the witness statements.  Employment Judge Warren rejected the application without consulting the wing members; this is confirmed by one of them.  The failure to provide an opportunity to consider that application with the members is a breach of Magenta, and we consider Mr Jones is correct when he relies upon the passage of Elias P (as he then was) in the following way:

“Accordingly, although a Chairman has very wide powers to make case management decisions, where a full Tribunal has been convened (and that is whether it is pre-hearing review or a full hearing) then the full Tribunal must make the relevant decision in relation to any case management issues that arise.  The power conferred by rule 10, allowing a Chairman to make an order ‘at any time’ does not mean that the Chairman can, in the course of proceedings where a full panel has been convened simply take decisions independently of the lay members.”

9.	Interestingly, one of the wing members, Mrs Burns, said that in advance of the hearing if there were to be an application for an adjournment, it would be rejected.  That is not supported by the Judge or the other member, who cannot recall any such matter, but it does in our judgement indicate a pre‑determination recalled by one of them to get on with the case at the expense of any application that might be made.  The failure to allow the adjournment was therefore rejected by the Judge, relying on this account anyway, on a pre‑determination not to allow any application made in advance of it being made.

Conclusion
10.	In our judgment, the decision itself is flawed, even if made with proper consideration of all three members of the bench, because of the way in which this matter erupted on the day, unfairly placing burdens upon the Claimant and her representative.  It should be appreciated that directions were given in advance of the hearing for the presentation of witness statements, as is now common.  This failure to allow the adjournment or a proper opportunity to Mr Jones to prepare to deal with the evidence was unfair.  It follows that the Judgment must be set aside.

11.	Since this is a simple one‑day case there is no utility in referring it back to the same Employment Tribunal.  It is unnecessary for us to form a clear decision on grounds 2‑4, but we do say that the Tribunal misunderstood the nature of the contention under section 104 and misdirected itself, and with respect to it we agree with Mr Jones that there are a number of other inaccuracies in the Judgment.  So, applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763, we do not consider it correct to send this matter back to the Tribunal as then constituted.  The matter will be dealt with more expeditiously if the case is dealt with by a different constitution.  The normal remedy for a failure to provide a fair hearing is to set aside the whole of the decision, so logically Mr Jones, consistently with his argument on fairness, accepts that all of the order will go.  So this decision will be set aside; it will be remitted to a differently constituted Employment Tribunal for a fresh hearing of one day, and the Tribunal’s directions for witness statements and documentation must be complied with.