Appeal No. UKEAT/0490/11/BA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 22 June 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

MR J MAUNDERS	APPELLANT

(1) WELLWISE GROUP (WELLWISE OILFIELD SERVICES LTD)
(2) TOTAL UK LTD
(3) PNS UK LTD
(4) JACOBS UK LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROHAN PIRANI
(of Counsel)
Instructed by:
Thompsons Solicitors
Agincourt
14-18 Newport Road
Cardiff
CF24 0SW	
For the Second Respondent

For the Fourth Respondent	MR SEAN JONES
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Wilkin Chapman Solicitors
PO Box 16
New Oxford House
Town Hall Square
Grimsby
DN31 1HE

MR JONATHAN CHAMBERLAIN
(Solicitor)
Wragge & Co LLP
3 Waterhouse Square
142 Holborn
London
EC1N 2SW	

SUMMARY
PRACTICE AND PROCEDURE
Right to be heard
Absence of party

A preliminary hearing was summoned to determine whether claims that the Claimant had been discriminated against by being subject to a blacklist should be struck out against one or all of the five Respondents.  On that basis, the Fourth Respondent did not attend.  It did not anticipate that the hearing would resolve as a matter of fact whether there had been such a blacklist.  However, the Employment Judge was asked by the parties present (the Claimant, and Respondents 1-3) to do so, since the existence of such a blacklist as defined by the Regulations was an essential precursor to a finding of liability against any Respondent.  The Judge found against the Claimant, but on the basis of factual findings that might have been helpful to an appeal by the Claimant, and if so would prejudice the Fourth Respondent’s position.

Held: it was a material irregularity to proceed in a way that might materially affect a party to proceedings without allowing that party a proper opportunity to meet the case made against it.  The only way to remedy it would be for the matter to be remitted for rehearing – and, since the case involved determination of facts and inference in a matter of discrimination, and the discretion to sit as a panel of three had not been exercised but there was every reason to do so and no compelling reason advanced to the contrary, remission would be to a panel of three, though with the same Judge presiding, to hear questions arising.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	This is an appeal brought by the Claimant against a decision of an Employment Tribunal in Leeds.  On 11 May it heard argument on what had been intended to be, according to the Tribunal’s own documentation sent to the parties, an application to strike out the claim as having no reasonable prospect of success, followed by a case management discussion, which would identify clearly the complaints being made by the Claimant to the Tribunal, the issues that the Tribunal would have to decide, the identity of the correct Respondents and so forth.  The matter, however, proceeded to determine an issue that was importantly different.  The issue determined was at a Pre‑Hearing Review, as had been anticipated, but was not in essence the application to strike out that might have been anticipated.  Instead, it appeared to the Judge and to the parties present that the Claimant’s claims, whatever they might finally be articulated as being, all depended upon whether he could first establish an issue of mixed fact and law.  That issue was whether a security database held by the Second Respondent was a prohibited list within the meaning of Regulation 3 of the Employment Relations Act 1999 (Blacklists) Regulations 2010.

2.	The essence of those Regulations is that they seek to proscribe blacklisting of potential workers because they have been involved in the activities of trades unions.  The Regulations are made under the Employment Relations Act 1999 section 3.  The prohibited list anticipated by section 3 and identified by Regulation 3 is, by Regulation 3(2):

“[…] a list which—
(a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and
(b) is compiled with a view to being used by employers, or employment agencies, for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.
(3) “Discrimination” means treating a person less favourably than another on grounds of trade union membership or trade union activities.”

Background
3.	The background was that the Claimant had worked at the Lindsey oil refinery, which was owned by Total, the Second Respondent, in 2005.  His labour had been provided for the purposes of that site by another supplier of labour, who does not otherwise feature in these proceedings.  At that time there was a five‑day strike.  The strike, it was common ground, was held without there being a ballot such as would confer immunity upon the trade union under the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992.  It was therefore, in common parlance, an “unofficial” strike.

4.	It appears to be common ground, at least between the Claimant and the first three Respondents, that the Claimant attended mass meetings of workers and was prominent in speaking to them about issues relating to the strike.  

5.	On 16 August 2010 he attended the refinery again for work on a contract, I am told, employed by the Fifth Respondent.  Whilst being inducted he was told he would not be allowed on site, and the Employment Judge, in Reasons given on 1 June 2011, explained that he was given to believe by a security guard that it might be because he had been blacklisted.

6.	His name appears on a security database.  According to that database, he (amongst some others, but a minority so far as those on the database were concerned) had a status that was identified as “referred”; in his case, “referred to security services”.  As a consequence of that he was given to understand that he was not welcome on site.

7.	The Regulations of 2010 create a number of different rights.  Under Regulation 5 there is a right of complaint to an Employment Tribunal against another if that other refuses to employ the complainant for a reason that relates to a prohibited list and either the would‑be employer contravenes Regulation 3 in relation to the list or relies on information supplied by a person who contravenes that Regulation in relation to that list, or knows, or is reasonably to know, the information relied on is supplied in contravention of that Regulation.  There are provisions (Regulation 5(2)) about the refusal of employment by a defendant, and, by Regulation 5(3):

“If there are facts from which the Tribunal could conclude, in the absence of any other explanation, that R [that is, the would‑be employer] contravened Regulation 3 or relied upon information supplied in contravention of that Regulation, the Tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.”

8.	The Regulations also contain a proscription of detriment relating to a prohibited list (Regulation 9) and provide separately for an action for breach of statutory duty (Regulation 13).  

9.	The Employment Rights Act 1996 contains in it, as section 104F, the provision that:

“An employee who is dismissed shall be regarded for the purposes of this Part [that is, unfair dismissal] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list and either—
(a) the employer contravenes Regulation 3 of the 2010 Regulations in relation to that prohibited list, or
(b) the employer—
(i) relies on information supplied by a person who contravenes that Regulation in relation to that list, and
(ii) knows, or ought reasonably to know, that the information relied on is supplied in contravention of that Regulation.”

10.	Here, the Claimant in his originating application to the Tribunal claimed entitlements arising under some of those provisions.  He claimed against the First Respondent, who supplied personnel to the Third Respondent, PNS UK.  The Third Respondent, he said, had a contract with the Second Respondent, Total, to carry out a range of services on the refinery; the Second Respondent owned the refinery; the Fourth Respondent, Jacobs, “has the managing contract with the second Respondent”.  Subsequently, Romatech was joined as a Fifth Respondent, but has not taken any part in this appeal, having been excused from that position by the Deputy Registrar, having considered submissions.

11.	To summarise, the appeal was brought by the Claimant because the Employment Judge found of the requirements set out in the 2010 Regulations that there was a list and that the complainant’s name was entered on that list as having taken part in the strike, which, though unofficial in the sense of unballoted, was regarded as trade union action, but he did not regard the burden of proof as shifted so that he could conclude that the list was compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.

12.	The Judge came to that conclusion in part having heard evidence.  He listened to the Claimant orally, as he did a Mrs Eatock, on behalf of the Second Respondent.  A Mr McDonald had, it transpired, been responsible for the name of the Claimant on the database.  He had provided a witness statement.  That witness statement was all that was provided; Mr McDonald did not attend to give oral evidence.  The Judge therefore concluded that where there was any direct conflict of evidence he preferred the evidence of the Claimant because his evidence had been tested in cross‑examination.  Importantly, perhaps, he concluded (paragraph 13) that the Claimant did not engage in any personal confrontation or issue threats of such seriousness that he could be reasonably thought of as a security risk.  He also found, though the extent to which it is in contention is something I am unsure about at this stage, that representatives of two unions, who were not, I think, the unions to which the Claimant himself belonged, had been instrumental in organising the strike that occurred.

13.	The Judgment makes it clear at paragraph 1 that the Judge was not clear how the claim was framed by the Claimant against each individual Respondent, but because it was clear that all the Claimant’s claims depended for their success on there having been a breach of Regulation 3 he proceeded to determine that issue.  He did so by agreement with the parties who were present.  They were the Claimant and the First to Third Respondents; neither the Fourth nor the Fifth Respondents were present.  Complaint was made almost immediately after the hearing on 11 May that the scope of it, in hearing and determining the issue as to whether there was a proscribed blacklist, had not been clearly flagged up beforehand so that the other Respondents could respond to it.

The Fourth Respondent’s position
14.	Before me the Fourth Respondent, who as a party to the appeal is bound by a decision, if it be binding upon him, argues, that there was a material procedural irregularity so far as the Fourth Respondent’s position was concerned.  On its behalf Mr Chamberlain, solicitor for the Fourth Respondent, said that the notice of hearing had made it clear that the Pre‑Hearing Review was to consider a strike‑out application.  The terms of the notice were unambiguous.  The issue that was determined, whether or not the database held by the Second Respondent was a prohibited list, was not the issue that the Tribunal had said it was to determine.  The determination materially affected the Fourth Respondent’s position.  The Judge recognised as much; he regarded that decision as a passport to any remedy against any Respondent.

15.	Mr Chamberlain tells me that the reason for non‑attendance was because it had not been anticipated that this issue of fact would be determined when and as it was.  He would have wished to be given the opportunity to ask questions in cross‑examination, to make submissions and, perhaps more critically, to consider whether or not to call evidence in respect of the issues that arose as to whether there was a list that fell foul of Regulation 3.  Because of the way in which the Tribunal approached matters, he was prevented, effectively, from doing so.  He submits that there is ample authority for the proposition that a party should be allowed to advance evidence before a Tribunal reaches a decision; he cites Alstom Transport v Tilson [2008] All ER (D) 124, Hudson v University of Oxford [2007] All ER (D) 411 and North Glamorgan NHS Trust v Eszias [2007] EWCA Civ 330.  But the principle is not in doubt: a party must be entitled – if a party – to know what the case is against him or her and have a reasonable opportunity to meet it.  It is a fundamental aspect of justice that such an opportunity must be a real and effective opportunity.  The matters proceeded as they did because, as it seems, at the time that the other four parties, the Claimant and three Respondents, attended before the Tribunal the position of the Fourth Respondent was simply forgotten about.  The Fourth Respondent was not invited to consider whether it was content that the matter should be determined in its absence.  Accordingly, as it seems to me, it is inescapable that a material irregularity has occurred.  There has arguably been arguably prejudice in respect of the Fourth Respondent.

16.	Mr Pirani submits that the Fourth Respondent could have complained immediately after the hearing, but before the result was known, about the fact that the Tribunal proceeded as it did.  He complains that after the decision had been reached it could have requested a review.  Mr Chamberlain counters by observing that no concern was raised but that does not meet the essential injustice of not being party to a hearing.  The failure to apply for a review is a point of no substance because the decision that the Judge reached was one favourable to the Fourth Respondent.  He contends nonetheless that findings of fact made by the Tribunal Judge might be important in this appeal.

17.	Although I have the sense that the parties would very much like this Tribunal to proceed to determine the interesting and beguiling legal issues that arise, the court cannot sensibly attempt to decide issues in a vacuum.  In particular, the third basis upon which the Tribunal Judge determined the matter, the issue that is the issue on appeal, is whether his decision that there was insufficient material to reverse the burden of proof in respect of whether the provisions of Regulation 3 had been satisfied has to be seen in respect of the evidence that was before him that he accepted.  A court asked to say that a decision was perverse, if it is, and some of the submissions of Mr Pirani approached that, has to be clear as to what the evidence actually is upon which it can rely.  At the present stage, as observed in the course of the hearing, the Appeal Tribunal has what might be described as three‑quarters of the evidence, since three out of four Respondents who wished to be heard were in a position to call it and contest it, but not the fourth.

18.	Accordingly, since in my view the Fourth Respondent was entitled to be heard, since it is, so far as the Fourth Respondent is concerned, a material irregularity that it was not, and since the findings of fact in respect of the Fourth Respondent, which will inevitably overlap with the cases of the First to Third Respondents, are open to the Tribunal Judge to make, since there has been no effective determination of those facts as between Claimant and Fourth Respondent, I see no alternative but to remit the case as between the Claimant and the Fourth Respondent for determination by the Tribunal’s Judge.  The involvement of the Fourth Respondent would, it seems to me, necessarily have permitted the First, Second and Third Respondents to ask questions of any witnesses called by the Fourth Respondent or any evidence that the Claimant gave in respect of the Fourth Respondent.  So, it seems to me that the case has to be remitted to the Employment Judge for him to determine – and I shall listen to submissions about the precise scope of the remission and of the hearing body in a moment – the facts in so far as they relate to the Fourth Respondent and any conclusions of law on the issues arising under the 2010 Regulations in respect of that case.

19.	It is with some regret that I feel bound to so determine.  I should make it clear that I do not regard the Employment Judge essentially as being to blame here, since all the parties present before him encouraged him to take the course that he did, and it would not necessarily have occurred to him without some assistance from the parties that the Fourth Respondent might have a different perspective and might have a different interest in calling evidence that should in justice have been served.

Conclusion
20.	It follows that, to that limited extent only, the case should be remitted.  I should add for the sake of clarity that if the Fourth Respondent were no longer in the case, then the Judgment of the Employment Tribunal as between the Claimant and Respondents 1‑3, it seems to me, stands as it is, because there is no legitimate basis upon which it could be said that the First to Third Respondents ought to have had an adjournment.

Disposal
21.	I have heard further submissions as to the way in which the matter should be remitted.  It seems to me that the essential unfairness that I have identified is that to the Fourth Respondent.  It is an unfairness that goes beyond not being able to participate in submissions; it extends to facts on which, as I have observed in what I have said earlier, this case turns, or may turn, importantly.  There are thus disputed issues of fact at the heart of it.

22.	The Respondents invite me to say that this is a case that, if remitted, must be heard by a panel of three.  Of the authorities supporting that it is essential, perhaps, only to refer to the case of Sogbetun v Hackney [1998] IRLR 676.  That was a case in which the Tribunal Chairman never exercised the discretion to sit as a panel of three, or did so improperly.  It was a hearing that involved resolving issues of fact.  It recognises that where there are important issues of fact generally it will be desirable that a panel of three should hear the matter.  As Mr Jones points out, and Mr Pirani accepts, as a general principle, where there is a case of discrimination, it is usual for any factual determination to be made by a panel of three.  Mr Pirani’s only argument against that is to point to the undoubted fact that four parties – the Claimant and three Respondents – all accepted the Judge sitting on his own.  That, however, did not involve the Fourth Respondent; there is no suggestion in the papers that the minds of the parties were at the time directed to the question of composition of the parties.

23.	Although, as it seems to me, it would not have been a reason to suggest that an appeal against the decision of the Judge alone, whatever it was, should be allowed, it does seem to me highly desirable in a case such as this that there should be a panel of three.  I have little doubt that on remission, if the Judge were invited to decide whether he should sit together with two lay members or on his own, in the light of the submissions put before me and in the light of the issues, that in the absence of there being a compelling reason not to do so he would exercise his discretion to sit as a panel of three.  Mr Pirani invites me to remit to the Judge to invite him as a first step to exercise that discretion.  It has not been suggested that the Judge could sensibly find any compelling reason here beyond the fact that three Respondents had been content earlier that he should resolve it on his own.  That may well have been for reasons of economy of time; if so, then purposes would be better served by my determining now the scope of the remission, and if, as seems likely on the authorities and in the absence of any suggested compelling reason for the decision‑maker to determine, there would be no compelling reason against a panel of three, then it seems to me to be so inevitable that the Tribunal Judge would exercise his discretion to sit with two lay members that I should make that determination now in the interests, again, of economy of time.

24.	In doing so, I am conscious it is in theory not my discretion to exercise, but I do on an appeal have the powers of the Tribunal, and it is those powers that I exercise in the very particular circumstances that I have identified.  That being the case, it seems to me that the matter must proceed as a fact‑finding exercise and determination of the submissions before a panel of three.  It would be open, plainly, to the parties to call such evidence as they wish on the part of the Claimant and the Fourth Respondent.  The lay members not having heard the evidence thus far, it would seem to be in principle wrong that the First, Second and Third Respondents should be restricted in the calling of evidence.  Effectively, with great regret in these particular circumstances, but inevitably, for the reasons that I have expressed, the remission must, I think, enable a rehearing of the whole matter as to the lists.

25.	As to the Judge who should preside, in my view it should be the same Judge.  I have in mind the submissions of Mr Chamberlain, who points out that although the Judge is to be acquitted by the parties of any error of law, nonetheless his clients might feel that they had been excluded by a decision for which he took responsibility.  I think that is unreal in the circumstances.  I feel sure that if his clients took a realistic view of the matter, they would conclude that they had been excluded by the activities of the other three Respondents and the Claimant rather than by the Judge.  If one goes for guidance to the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763 as to remission, it is recognised there that there may be a tension between the feeling of pre‑judgment, on the one hand, and the professionalism that one must expect of a Tribunal’s Judges, who, like any judges, must be prepared to change their minds if appropriate to do so for either party but in the light of the submissions made to him or her.  I see absolutely no evidence in this decision of a judge who is anything other than scrupulous so far as his professional obligations are concerned.  The Judgment, whatever the criticisms in law may be, is a careful, well‑thought‑out decision; whether it be right or wrong is for, perhaps, another day, but there is nothing in it that suggests to me that this is a Judge who would not be mindful of his professional obligations, and there is, as it seems to me, advantage in a Judge who has given already deep consideration to some of the issues that arise in this unusual and somewhat esoteric area of employment law.

26.	Accordingly, because it would seem to me to be efficient that he should be seized of the case, and there being no reason why he should not be, I will order that there be remission to a full Tribunal, and that, unless there are reasons of practicability why it would not be possible, for the Regional Employment Judge to determine that the same Employment Judge will preside over that panel.