Appeal No. UKEATPA/0659/10/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 April 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR M F BARRETO	APPELLANT

WINCANTON GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	DR MICHAEL ARNHEIM
(of Counsel)

	
For the Respondent	MR CHRISTOPHER EDWARDS
(of Counsel)
Instructed by:
Osborne Clarke Solicitors
2 Temple Back East
Temple Quay
Bristol
BS1 6EG	

SUMMARY
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

Dissatisfied with opinions under rules 3(7) and (8), and seeing no justice in the EAT, the Claimant, at times with legal help, chose to go to the Court of Appeal where a Deputy Master declined to hear him as he had not exhausted the process in the EAT by a rule 3(10) hearing.  His by now out of time application to the EAT was refused as no good excuse had been given, even though exhaustion of process is not a requirement for an appeal under ETA s 37. 
HIS HONOUR JUDGE McMULLEN QC

1.	This case is about forum-shopping: whether you get a fair hearing in the EAT or should go instead to the Court of Appeal.  As will appear, with the careful agreement of the parties, I have conducted an appeal under rule 21 and a rule 3(10) hearing.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	The substantive appeal is brought by the Claimant in those proceedings against the Judgment of an Employment Tribunal sitting at Bristol over four days, under the chairmanship of Employment Judge Toomer.  The Claimant was represented by different counsel; from today, when he has the advantage to be represented by Dr Michael Arnheim.  The Respondent too is represented today by different counsel, Mr Christopher Edwards.  

3.	The Claimant is Goanese. He contended that he had been unfairly dismissed, and had been the object of unlawful race discrimination. The Tribunal upheld the former but dismissed the latter.  As part of the unfair dismissal case, it rejected contentions by the Respondent that the Claimant had contributed to his dismissal, and that he had failed to follow through an appeal procedure.  That last matter was decided in his favour by a majority.

4.	The Tribunal set a date for a remedy hearing and on 29 April 2010 it met again and awarded the Claimant something over £15,000 in respect of the unfair dismissal.  The Claimant was dissatisfied about the race discrimination outcome.  The Respondent has been silent as to the unfair dismissal outcome and the sums have been paid.

5.	The Notice of Appeal was drafted with the assistance of Dr Arnheim.  I make this point because Dr Arnheim contends that the Claimant was a litigant in person.  True it is that he himself appears on the papers, and that counsel in any proceedings has a limited role in accordance with the professional rules of conduct.  It is sufficient to note that the Claimant handled the proceedings himself, upon advice and drafting assistance from counsel.

The legislation
6.	The legislation is in two parts.  The first deals with lodging a Notice of Appeal and subsequent applications under rule 3 within time, and the second with the substantive law relating to race discrimination.  The relevant provisions of law and practice for appeals against the decision of the Registrar not to accept a Notice of Appeal on the ground that it is out of time, and not to exercise discretion, are contained in my judgment in Muschett v London Borough of Hounslow [2009] ICR 424.  Since then the Court of Appeal has decided Jurkowska v Hlmad [2008] EWCA Civ 231, [2008] ICR 841 and I too have returned to this subject in Bost Logistics v Gumbley UKEATPA/0013/08 and Westmoreland v Renault UK Limited UKEATPA/1571/08. Most recently in Harper v Hopkins [2010] EWCA Civ 1246 the Court of Appeal expressly approved my approach to the practice and the law in relation to Notices of Appeal. 

7.	The EAT Rules and Practice Direction and the 2005 Practice Statement require a Notice of Appeal and all supporting documents to be lodged within 42 days after the Judgment is sent to the parties.  These are prescriptive.  There is no special treatment for litigants in person.  That applies to all steps under rule 3: Morrison v Hillcrest [2005] EWCA 1378.  An appeal lies to a Judge from the Registrar under rule 21.  In effect it is a fresh hearing, sometimes with live evidence.  I make up my own mind on the basis of all the material.

8.	The other aspect of procedure concerns the sift under rule 3.   I explained my approach to these provisions in Haritaki v South East England Development Agency [2008] IRLR 945, paragraphs 1 to 13, which should be read with this Judgment.  That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School UKEATPA/1375/08, and Evans v University of Oxford [2010] EWCA Civ 1240.

9.	On the sift of this Notice of Appeal, the President exercised his power under rule 3(7).  He concluded the case disclosed had no reasonable grounds and said this:

“Taking the numbered points in turn:
1. It is not clear whether this is intended as a free‑standing ground or merely a summary of grounds 2 and 3.  If the former, although the Appellant uses the language of “misdirection” no misdirection of law is identified, and the real contention appears to be that the Tribunal “did not correctly apply” Igen and Laing; but that is no more than a contention that the Tribunal’s assessment was wrong, and involved no issue of law.
2. It is unclear what is being said here.  But it is clear from Madarassay [2007] ICR 867 and Brown [2007] ICR 909 that (a) evidence of the Respondent’s explanation can be taken into account either ‘stage’ - the law is not about intellectual game‑playing; and (b) the Tribunal in any event took the approach propounded by the Appellant by way of an alternative - see the second half of the final sentence of paragraph 27 of the Reasons.
3. I see nothing even arguably perverse in the Tribunal’s conclusion that the Respondent’s treatment of the Claimant was on grounds other than his race; the matters enumerated in paragraph 26 are capable of supporting such a conclusion.”

10.	In accordance with rule 3(8), the Claimant exercised his right to submit a fresh Notice of Appeal, as to which the President formed the following opinion:

“I take in turn the grounds identified in the Appellant’s five bullet points:
1. The decision whether the evidence was sufficient to reverse the burden of proof was a matter for factual assessment by the Tribunal, and its decision involves no issue of law.  In any event, the Tribunal considered, by way of alternative, whether the Respondents had discharged the burden of proof even if it had shifted and held that they had.
2. The evidence of a “general culture of racial discrimination” summarised at paragraph 8 in the Notice of Appeal is not of such weight that the Tribunal was obliged to conclude, notwithstanding its assessment of the specific circumstances of the treatment complained of, that that treatment was partly on racial grounds - nor indeed was it of such weight that it was obliged to deal specifically with it.
3. It is not arguable that the Tribunal’s findings on the facts identified in paragraph 9 of the Notice of Appeal are perverse.
4. It is not arguable that the Tribunal’s reasons on the discrimination issue are insufficient.
5. It is clear that what the Tribunal meant at paragraph 31 was that both issues required a determination of the same factual question, namely what was the reason for the dismissal.  That is correct.  It found that the reason for the dismissal was one which had nothing to do with the Appellant’s race; the finding of unfair dismissal was based on its conclusion that it was unreasonable to dismiss for that reason.”

11.	When no point of law is found, section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction.

12.	The Registrar’s letter, including the President’s opinion, dated 17 September 2007, drew the attention of the Claimant to rules 3(9) and 3(10).  He had already been given the Practice Direction.  That then provides for a hearing before a Judge.  As I explained in Haritaki, the fresh Notice of Appeal is usually put before the first Judge.  It is obvious why.  There is considerable investment in judicial time and the Judge looking at the fresh Notice of Appeal is able to see whether any weaknesses in the Notice of Appeal have been overcome in the fresh Notice, or whether fresh points are taken which themselves have reasonable prospects of success. There is nothing contrary to the rule for the same Judge to handle the matter twice. When the matter goes to a 3(10) hearing it is generally before a different judge.  Not always.  Broadly speaking, the intention of the Listing Officer is to provide a fresh pair of ears at an oral hearing.

13.	An appeal to the Court of Appeal is provided by section 37 of the Employment Tribunals Act 1996:

“(1) … an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or of the relevant appeal court.”

14.	As to the substantive law, this is regulated by the Race Relations Act 1976. Discrimination on the grounds of race is outlawed by section 1 and this is a case to which the reverse burden of proof is applicable under section 54A.

The facts
15.	The Respondent is a substantial logistics company employing many hundreds.  It operated a warehouse at Swindon.  The Claimant had been employed since 2006.  He has very firm views on what he regards as right and wrong within the workplace and had not been slow to take out grievances whenever he thought appropriate.  Some of these were the subjects of the complaints.

16.	During his career there was a number of unfortunate altercations mainly with female managers.  He was disciplined and dismissed.  He contended that he had been treated less favourably on the grounds of his race than named comparators who had raised grievances but had not been treated in the same way, and secondly that the dismissal was contrary to the Employment Rights Act, sections 94, and 98.

17.	The Tribunal dealt with each of the allegations said to be an act of race discrimination.  For most of them there was a named comparator.  It came to the conclusion that the Claimant had not shifted the burden of proof to the Respondent, because he had not shown that there was something more than a difference in treatment and race.  He had not shown that he could prove in due course that there was race discrimination.

18.	The Tribunal went chronologically through the events, comparing as against the named comparator, and holding that, in respect of each incident, there was no material upon which the Claimant could show that he had been treated less favourably on the grounds of his race, so calling for an explanation from the Respondent.

19.	However, lest it be wrong about that primary conclusion, it went on to say, having heard the Respondent’s explanation, that it accepted each explanation.  There was no basis upon which it could be said that the Claimant had been racially discriminated against.  As to one aspect, there was no comparator and a hypothetical comparator was constructed – that is a person with the same long record of lodging grievances and against whom an allegation of aggressive behaviour had been made; the same conclusion was reached.

20.	It came to the same conclusion in relation to the act of dismissal itself.  It was not an act of race discrimination.  It was, however, unfair, and not simply in the procedural sense, but by way of substance.  The Tribunal made criticisms of the Respondent’s conduct as falling below the standard of a reasonable employer in conducting proceedings in his absence, and in the decisions which it reached.  It further held that, although he behaved badly, he did not contribute to his own dismissal.

The fresh Notice of Appeal
21.	The fresh Notice of Appeal raises a number of questions about the Judgment.  Underhill P formed his opinion about each of those.  The complaint can be said to fall under the following headlines. First, it is said the Tribunal chose to ignore the wealth of evidence indicating there was a culture of racial discrimination, and the statistics showing the percentage of the work force of Goanese ethnic origin.

22.	It is contended the Tribunal got the burden of proof wrong, and failed to treat the allegation of race discrimination as a separate and discrete head, putting it together with unfair dismissal.  There are, as is customary these days, allegations the Tribunal failed to give sufficient reasons and reached a perverse decision.

23.	Finally it is said there was an unfair trial.  That allegation is abandoned today because, as Dr Arnheim recognises, the consequence would be the setting aside of the whole decision including the finding of unfair dismissal. The allegation of an unfair trial is really a simple formulation that the Tribunal was wrong in law in respect of the race discrimination claim, and there is no attack from either side on the unfair dismissal findings.  Significantly, there is no application for new evidence to be put in respect of this ground of appeal.

The procedural appeal
24.	The chronology in this case is important.  The Judgment was sent to the parties on 25 March 2010, and on 29 April 2010 the remedies hearing was conducted.  The Notice of Appeal was submitted on 6 May 2010 on day 41 of the 42‑day period.  An application for review had been made before the Notice of Appeal was submitted, and was rejected after it.  I pause for a moment.  The Claimant was aware that it is permissible to ride two horses – appeal and apply for a review.

25.	On 17 June 2010 the President’s opinion on the first Notice of Appeal was given, and on 17 September 2010 his second, following the fresh Notice of Appeal uttered by the Claimant just within the 28 days allowed for that.

26.	The path was open to the Claimant to seek a rule 3(10) hearing.  He chose not to do so.  I use that word advisedly, because it represented a clear decision that he would not come before the EAT as he said:

“This blatant unfairness was the main reason why I applied to the Court of Appeal rather than wasting the cost of yet a third application to the EAT.”

27.	On 14 October 2010, day 27 of the 28‑day period allowed to a person to apply under rule 3(10), his Notice of Appeal, which essentially is the same as he would rely on at a rule 3(10) hearing, was received by the Court of Appeal.  The Court’s officer said this:

“I acknowledge receipt of your papers, which this office received on 14 October 2010.
The papers have been referred to a Deputy Master of Civil Appeals who has asked me to convey to you the following:
“Mr Barreto has filed an appellant’s notice seeking to appeal from the decision of Mr Justice Underhill dated 17 September 2010, pursuant to Rule 3(8) of the Employment Appeal Tribunal Rules 1993.  The Court of Appeal has no jurisdiction to entertain the application as Mr Barreto has not exhausted his appeal rights in the Employment Appeal Tribunal (EAT).  As the EAT letter of 17 September 2010 indicates, Mr Barreto may apply for an oral hearing before an EAT judge, pursuant to Rule 3(10).”
In these circumstances, the papers are returned.”
 
28.	On 19 October 2010 the Claimant then applied for a hearing under rule 3(10).  It is common ground that the application was out of time by four days, and, therefore, this is a matter of discretion. The Registrar considered representations from both sides and refused to allow an extension. 

29.	The initial approach of Dr Arnheim was one of scathing contempt for the petty rules of, and pernickety treatment by, the EAT of the Claimant.  “It is a sad day for British justice”, he wrote.  “More attention is given to formality and amazingly petty rules.  The starting point”, he contends, “is an elementary rule of natural justice and it is that a Judge should not hear an appeal”.  He drew my attention to the US Code: 28 USC 47, Disqualification of trial judge to hear appeal, for which the text provides:

“No judge shall hear or determine an appeal from the decision of a case or issue tried by him”.

30.	There is not a specific rule that he has been able to show me in the CPR, or under the Tribunal rules, but I suppose it is a recollection of what Baron Bramwell said in Andrews v Styrap [1872] 26 L.T. 704 and 706.  “The matter does not appear to me now as it appears to have appeared to me then”.  Baron Bramwell was giving a judgment prior to the substantial reforms of the legal structure in 1872 to 1875.  Whatever the merits of that, and the USC is important in establishing a principle, it does not apply here.  As I explained in Haritaki, Underhill P was not hearing an appeal from himself.  What he did was to consider a fresh Notice of Appeal by the Claimant under rule 3(8), as provided by the rules.  Nor is there in the CPR any restriction on the same judge deciding the point again at an oral hearing: see 52PD para 4.13.

31.	The safeguard which an Appellant has is a rule 3(10) hearing.  At an oral hearing points can be developed and, in practice, the hearing is conducted by a different judge.  As a matter of fact, what was available to the Claimant was an application in open court to a new judge under rule 3(10), but he decided not to take it.

32.	In my judgment, Deputy Master in the Court of Appeal was wrong to refuse the application for permission to appeal against the President’s rule 3(8) opinion, on the ground that he had not exhausted procedure in the EAT. In Mitchell v Barratt Homes UKEATPA/0903/08, a similar point arose, in that a Claimant/Appellant had gone to a Court of Appeal and had met the same response.  I did not hear full argument in that case because I took a practical approach, the Respondent not being present and the Claimant advancing his own case, that I could decide the matter under rule 3(10).  However, I certainly expressed a view that section 37 is unlimited and does permit an Appellant to make an application for permission to appeal against an opinion under rules 3(7) and 3(8).  My approach to section 37 probably gains support from Sedley LJ for Mr Mitchell, dissatisfied with my ruling under rule 3(10), as it then became, went for permission to the Court of Appeal.  Of course, there was no opposition, but Sedley LJ said nothing about my judgment in relation to a section 37 appeal against a rule 3(7) or 3(8) ruling.

33.	Whether it is cost-effective, expeditious, helpful, for such to happen is open to debate.  In my view what ought to happen is the Court of Appeal should stay the application in its discretion so that the matter could be redirected back to the EAT.  As the Claimant asserts, he does not need permission from the EAT to go to the Court of Appeal; he can have permission from us or from the Court of Appeal.  He chose to have no further dealing with the EAT and so went to the Court of Appeal. It may be that the matter is still open to him in the Court of Appeal, now that, as will be clear, he has finished everything here.

34.	By the time he was alerted to the Court of Appeal’s attitude, he was out of time here. Today, however, Mr Edwards for the Respondent raises an argument that the Court of Appeal is correct.  He starts with the direction of the Registrar who takes the view herself that the Appellant should exhaust remedies here.  He cites the requirement that there has to be an intention to appeal.

35.	In my judgment, Mr Edwards is incorrect.  I see no reason as a matter of construction to temper section 37 and its plain meaning. There is good reason why parties should exhaust all remedies in the EAT, but must not be precluded from their statutory right to seek permission.  Prudently, a person wishing to go straight to the Court of Appeal should lodge a notice under 3(10) at the same time.

36.	In Pierre‑Davies v North West London Hospitals NHS Trust UKEATPA/1496/08, I refused to exercise discretion on the ground that it was not an excuse for an Appellant to go back to the Employment Tribunal and lodge an appeal there.  It is the wrong place.  Nor is an application for permission to appeal to the Court of Appeal the correct place for the determination of an application under rule 3(10).  I would be more sympathetic to the Claimant if he had made a mistake, but he did not.  He decided he would get no justice in this building, and so went over the road.

37.	I apply the three factors set out by Mummery P in United Arab Emirates v Abdelghafar [1995] IRLR 243 as to the explanation for the default, whether there was a good excuse and whether I should grant the exceptional step of exercising discretion in his favour. The Claimant fails the last two tests.  He decided there was a better forum for his case. That is not a sufficient excuse for missing the deadline or attracting an exceptional extension.

38.	I am also asked by Mr Edwards to take account of the merits of this case.  This is a matter which occasionally arises under the approach of Sir Christopher Staughton, set out at paragraph 23 in Aziz v Bethnal Green City Challenge Co Limited [2000] IRLR 111.  The merits of an appeal are generally of little value in considering the discretion, unless it has none.   Mr Edwards contends that that should be a significant factor in my decision-making.  I have looked carefully at this judgment and I form the view that the substantive appeal has no merit. It is essentially a challenge to findings of fact.  The Tribunal provided a balanced response to the Claimant’s complaint, upholding unfair dismissal, and looked at the prima facie case that he could not make, and the evidence the Respondent put forward by way of explanation. The Tribunal made a decision which, in the round, could not be appealed.  So, for the purposes of the application under rule 21, I would hold that there is no point in breathing life into this appeal.  I dismiss the Appeal against the Registrar.

39.	However, I am asked to look further on the basis that this might have merit at a rule 3(10) hearing, as I did in Mitchell.  I heard full argument from counsel on behalf of the Claimant, but not of the Respondent, since this is an Appellant-only zone, on whether the case has reasonable prospects.  I heard the argument de bene esse with the agreement of Dr Arnheim.  

40.	It is contended that there is new evidence the Claimant wishes to adduce.  There is no application in the fresh Notice of Appeal, Dr Arnheim said he wished to reflect on this, and I adjourned for several hours so that he could collect the material which was said to be easily exigible. For one reason or another it is not. An explanation has been given about what this material is.  He offered to call his client to give evidence.  It seems to me that that is an unnecessary and an unprecedented step in a proceeding under rule 3(10), but I would take the evidence at its highest.  

41.	There is no application.  The application should, if it is to address new evidence, deal with the three points in Ladd v Marshall [1954] 1 WLR 1489, in accordance with the Practice Direction.  The evidence should be available for the court to see.  None of that has occurred.  I would have no difficulty in dismissing it on those grounds.

42.	However, in fairness to the Claimant, I have heard what Dr Arnheim says is to be the gist of the evidence.  It is that there is a culture of race discrimination, in particular against Goanese, in the Respondent, and that there is some statistical and anecdotal evidence to the effect that white people are treated better than Goanese, or other nationalities.

43.	I hold that this does not cross the threshold required by Ladd v Marshall.  Leaving aside the technicalities of the form in which it is delivered, the substance is that which was before the Employment Tribunal. The Tribunal was invited, and directed by previous case management decisions, to focus on the series of grievances which the Claimant raised.  The Tribunal heard the history, as it put it, and it investigated all of the procedures.  In my judgment, this is to give the Claimant a second bite of the cherry.  If there truly is to be an application for new evidence to be sought, and that that material addresses the Ladd v Marshall principles, it is better for it to be raised first at the Employment Tribunal (see Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA).

44.	I cannot hold out any hope for the Claimant in an application to the Employment Tribunal out of time, but I do say that new evidence arising after the hearing, and which passes the Ladd v Marshall test, would not necessarily have to fall within the first 14 days.  It is by definition something that may arise at any time.  I would not see that as a barrier to an application to the Tribunal, but I do decide that it is better for such matters to be ventilated first at the Tribunal, and there is, in my judgment, insufficient material to pass the Ladd v Marshall tests before me.  So, the subsidiary ground, as it might be put, would hold no prospect of success either.

45.	I have attempted to be expeditious, and to meet the overriding objective by listening to arguments which could be adduced under rule 3(10) before making a final decision on the rule 21 appeal.  In a sense, one flows from the other, since I have decided it had little prospect of success in the rule 21 appeal.  With the Tribunal, I appreciate that the Claimant does not take no for an answer, and will be dissatisfied by this judgment, but at least I have done one thing for him, which is to afford him a rule 3(10) hearing, lest I have been wrong on the rule 21 appeal.  My formal decision therefore is that the appeal is dismissed under rule 21, but, if called upon to conduct a rule 3(10) hearing I have done so and this case has no prospect of success.  No further action will be taken, and effectively the appeal is dismissed.

46.	I would like to thank Dr Arnheim very much for his submissions.  He put every matter before me which his client could ask to be put.  Mr Barreto had a fair and comprehensive hearing in which he was successful before the Employment Tribunal and should go away from this court secure in the knowledge that he has substantial compensation for the unfair dismissal by his employer.

Appeal
47.	An application has been made for permission to appeal to the Court of Appeal.  This is against the rule 21 decision.  Since I have decided under rule 21 and in the alternative under rule 3(10) that this case has no reasonable prospect of success, I may be wrong but I will be consistent.  It stands no better prospect in the Court of Appeal, where, if it gets anywhere, Mr Edwards will appear.  There is no compelling reason why this should be taken to the Court of Appeal and I do not accept that “it may be good to go to the Court of Appeal” is a correct approach.  I agree with the Registrar and the President (twice) that his case has no merit.

48.	The Court of Appeal’s practice when deciding whether to give permission to appeal against a rule 3(10) hearing is, if it does, to refer the matter back to a hearing here, without the matter being dealt with by the Court.  However, it must be recalled that the first issue in this case is the rule 21 appeal and, in my judgment, there is no prospect of the Court of Appeal overturning my exercise of discretion on the material which I have had.  Permission is refused.