2. APPEARANCES
For the Appellant MR J SYKES
(Legal Representative)
Instructed By:
Employment Cases Direct Ltd
8 Bloomsbury Square
London WC1A 2LP
For the Respondent MR A BURNS
(of Counsel)
Legal (Contract) Services
London Borough of Southwark
South House
30-32 Peckham Road
London SE5 8UB
EAT/1273/97 & EAT/878/99
3. JUDGE PETER CLARK:
1 These appeals raise a number of issues concerning Employment Tribunal procedure in
the following circumstances.
2 The applicant, Mrs Bennett, who is black, was employed by the London Borough of
Southwark (Southwark) as a Care Manager from 13 May 1985 until her dismissal on
22 September 1994. On 17 August 1993 she presented her first Originating Application to the
Employment Tribunal complaining of race and sex discrimination. According to that complaint
she first raised an internal grievance alleging racism, victimisation and sexism on 20 November
1991. Following her dismissal she presented a second Originating Application on 8 September
1995 complaining of unfair dismissal, race and sex discrimination and victimisation under both
heads. On 27 February 1996 she served consolidated further and better particulars of her
complaints running to 15 pages. The consolidated complaints were listed for ten days
commencing on 1 July 1996 before a tribunal sitting at London (South) under the chairmanship
of Mr I.S. Lamb (the Lamb Tribunal).
3 On that occasion she was represented by Mr Errol Harry, a black former employee of
Southwark, who had held a lay position as a trade union representative and had represented her
during the internal disciplinary process.
4 Ten days was not sufficient time to complete the case and it was adjourned part-heard
until 27 January 1997. On that day the applicant was, as the Lamb tribunal accepted, suffering
from influenza and a bad back. Mr Harry attended the tribunal as her representative; the
applicant did not attend. He applied for a postponement until she recovered her health. That
application was opposed by Mr Burns on behalf of Southwark. The tribunal refused the
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4. application. Their reasons for doing so, given orally at the time, were that the hearing had been
listed for a further eight working days. A one week adjournment, sought by Mr Harry, would
result in a further lengthy delay until July 1997. The applicant had given evidence at the
hearing in July 1996; Mr Harry was able to cross-examine the remaining witnesses for
Southwark without the need for the applicant’s personal attendance. The tribunal also took into
account the further cost, delay and inconvenience to Southwark of a further adjournment until
July 1997.
5 The hearing then continued until lunch-time. Mr Harry began his cross-examination of
a witness for Southwark, Mr Aziz. Following the short adjournment Mr Harry repeated his
application for an adjournment. He had seen the applicant over the lunch-time break and she
was unhappy that the case was proceeding in her absence. He said that if he were a barrister he
would not be put in this position. Again the application was opposed by Mr Burns; again the
request for a general adjournment was refused by the tribunal for the reasons appearing at
paragraph 10 of the Lamb tribunal reasons for their decision promulgated on 20 February 1997
(the Lamb reasons). However, the tribunal did agree to put the matter over until the following
morning, having first warned Mr Harry that there was a risk that the tribunal might strike out
the applications on the grounds of unreasonable conduct or want of prosecution if the applicant
decided to withdraw her co-operation by disinstructing Mr Harry.
6 On the following morning, 28 January 1997, Mr Harry made a third application for a
postponement. He made the point that part of the applicant’s substantive complaint against
Southwark was that she had been dismissed following an internal disciplinary hearing at which
she was not present. He then said:
“If I were a white barrister, I would not be treated in this way.”
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5. He followed that up by the remark:
“If I were an Oxford educated white barrister with a plummy voice I would not be put in this
position.”
7 The Lamb tribunal adjourned to consider that application. It is plain from the Lamb
reasons, paragraph 14, that each member of the tribunal, the Chairman and Members,
Messrs Hardwick and Ramakrishnan, were genuinely outraged by the clear suggestion that
they, the Members of the tribunal charged to hear a complaint of race discrimination, were
themselves guilty of treating a black representative less favourably than they would treat a
white barrister.
8 They reached the conclusion that they could not, in these circumstances and in all
conscience, fairly determine the applicant’s complaints in the light of her representative’s
accusation of racism. They returned and said so. Conscious of the very limited circumstances
in which it is proper for a tribunal to discontinue a hearing on the grounds of bias or apparent
bias, having reminded themselves of cases including Peter Simper & Co v Cooke (No.2)
[1986] IRLR 19 (reasons, paragraph 18), they nevertheless decided to terminate the
proceedings, leaving over to another tribunal possible applications by Southwark for a strike out
order and an order for costs.
9 The matter was referred to the Regional Chairman, who directed that the matter be listed
before a fresh tribunal chaired by Mr John Warren (the Warren tribunal) to decide whether or
not the complaints should be struck out under the provisions of rule 13(2)(e) of the
Employment Tribunal Rules of Procedure. Rule 13(2)(e) provides, subject to the provisions for
notice under rule 13(3), that a tribunal may, at any stage of the proceedings, order to be struck
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6. out any Originating Application on the grounds that the manner in which the proceedings have
been conducted by or on behalf of the applicant has been scandalous, frivolous or vexatious.
10 The necessary notice, complying with rule 13(3) was sent to the parties on 27 February
1997 and the hearing before the Warren tribunal took place on 30 May 1997. By a decision
with extended reasons promulgated on 7 July 1997 (the Warren decision) that tribunal ordered
that the applicant’s complaints be struck out under rule 13(2)(e) on the grounds that the
applicant’s representative’s conduct before the Lamb tribunal was scandalous. They further
ordered the applicant to pay the respondent’s costs, limited to the costs of that day, 30 May
1997, in the sum of £490.45, having taken into account the applicant’s means, under the powers
contained in rule 12. They found that the applicant’s conduct in connection with the conduct of
the application was unreasonable.
11 The applicant then appealed to the Employment Appeal Tribunal against the Warren
decision by a Notice dated 14 August 1997 (EAT/1273/97). There had then been no appeal in
time by either party against the Lamb decision.
12 The appeal against the Warren decision was out of time and by an Order dated
2 October 1997 the Registrar refused to extend time for appealing. Against that order the
applicant appealed to the then President, Morison J.
13 That appeal was heard on 12 May 1999, and for the reasons which he then gave
Morison J ordered first, that time be extended for the applicant’s appeal against the Warren
decision and secondly permitted both parties to challenge the Lamb decision on appeal. Hence
the second appeal by the applicant and cross-appeal by Southwark against the Lamb decision
(EAT/878/99).
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7. 14 Both appeals were listed for ex-parte preliminary hearing before a division on which I
sat on 7 February 2000. On that occasion, with the assistance of Mr Sykes, then as now
appearing on behalf of the applicant, we permitted both appeals to proceed to this full inter-
partes hearing, identifying specific issues to be determined in each appeal. Southwark’s cross-
appeal against the Lamb decision is contained in their Answer to that appeal dated 13 April
2000. By that cross-appeal Southwark contend, if the Lamb decision is not upheld on appeal,
that the Lamb tribunal ought to have ordered that the applications be struck out under rule 13(2)
(e) on the grounds that the proceedings before the Lamb tribunal were conducted scandalously,
frivolously or vexatiously on behalf of the applicant.
15 Having read and heard counsel’s submissions on the specific issues in the appeals
identified at the preliminary hearing and on the cross-appeal the real questions before us may be
reformulated in this way:
(1) was the Lamb tribunal entitled to discontinue the proceedings, without notice to the
parties, in the circumstances which arose in this case?
(2) if not, should the applicant’s appeal against the Lamb decision be allowed and if so,
should the cross-appeal by Southwark be allowed, and if so, ought we, exercising our
powers under section 35(1)(a) of the Employment Tribunals Act 1996, to affirm the
decisions reached by the Warren tribunal?
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8. The first question
16 It is common ground that a tribunal has power to order the discontinuance of
proceedings and direct that the case be heard by a differently constituted tribunal by a
combination of rule 13(1), power to regulate its own procedure and rule 16, power to give
directions. However, it is a power which should be sparingly exercised and only for good
reason. Charman v Palmer Scaffolding Ltd [1979] ICR 335. It should not be exercised
simply because one party complains that the tribunal has prematurely formed an adverse view
of that party’s case. Peter Simper (No.2) [1986] IRLR 19, or lacks confidence in the fairness
of the tribunal. Automobile Proprietary Ltd v Healy [1979] ICR 809.
17 The immediate cause of the Lamb tribunal ordering discontinuance in this case was
Mr Harry’s accusation of racial bias against them; that a white barrister applying for an
adjournment on the grounds of his client’s illness would receive different, more favourable
treatment.
18 Mr Sykes submits that in these circumstances, given that Mr Harry made no application
for the Lamb tribunal to recuse themselves, it cannot be appropriate for that tribunal to order
discontinuance.
19 However Mr Burns argues that this case is different from the earlier cases. There, it was
suggested that the tribunal gave the appearance of bias, a charge which the tribunal in each case
refuted. Bias may arise in one of three ways; actual bias, bias giving rise to automatic
disqualification and cases where there is a real danger or possibility of bias. In the present case
it was the Lamb tribunal itself which accepted that as a result of Mr Harry’s complaint of racial
bias there would be actual bias if that tribunal continued to hear the case. We would observe
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9. that, as in the earlier cases, the Lamb tribunal did not accept that they had given the appearance
of bias, rather that there was a danger of bias in the future. It is a fundamental right of every
party to have a fair hearing by an independent and impartial tribunal, now guaranteed through
the inclusion of Article 6 of the European Convention on Human Rights into domestic law by
the Human Rights Act 1998. Accordingly, once the tribunal Members themselves had given a
collective declaration that they could not continue to hear the case impartially they had no
alternative but to order discontinuance and a rehearing before a different tribunal then and
there, whatever the parties may have had to say.
20 The position which arose in this case is unique in our experience and one on which there
is no direct learning, according to the researches of counsel and ourselves. However, drawing
on the decided cases and first principles we are satisfied that the Lamb tribunal was wrong to
order discontinuance for the following reasons.
21 First, the interests of both parties. This was already an old case. On the second day of
the Lamb tribunal hearing the tribunal had ruled that it would be just and equitable for the
tribunal to consider the applicant’s complaints going back to 1990. Secondly, the tribunal was
then 12 days into a hearing anticipated to take 18 days. Discontinuance followed by a fresh
hearing would result in substantial wasted costs and working time for the legally represented,
publicly funded respondent and added stress and anxiety for the applicant. Thirdly, the context
in which the Lamb tribunal came to order discontinuance is important. They had retired to
consider Mr Harry’s third application for an adjournment on the grounds of the applicant’s
inability to attend due to illness. When they returned, without canvassing the views of either
representative and in the absence of Mrs Bennett, they simply declared that they felt unable to
continue to hear the matter impartially and with equanimity and aborted the hearing.
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10. 22 On that aspect we are reminded by Mr Sykes of the approach of the EAT, Browne-
Wilkinson J presiding, in Peter Simper (No.1) [1984] ICR 6, 11A. In that case the respondent
made an ex-parte application to the Chairman of a full tribunal panel hearing the applicant’s
complaint of unfair dismissal for a rehearing before a differently constituted tribunal on the
grounds of apparent bias on the part of the Chairman. Without consulting his lay colleagues or
seeking the views of the applicant’s side, he granted that application. On appeal the EAT held
that, whilst having power to order discontinuance, the Chairman was wrong to do so, first
without consulting the other members of the panel and secondly, as a matter of natural justice,
without giving the other party an opportunity to be heard on it. The same tribunal was directed
to continue the hearing.
23 In the present case the decision to discontinue was a decision of the full tribunal, but it
was reached without giving either party an opportunity to comment. That, in our judgment,
cannot be right subject to Mr Burns’ point that here, unlike the earlier cases, the tribunal
accepted that there was a real danger of bias if they were to continue hearing the case as a result
of Mr Harry’s remarks.
24 We think that the answer to Mr Burns’ point is that the tribunal reacted prematurely.
We accept that they were genuinely outraged by Mr Harry’s accusation of racial bias. It is a
serious matter to accuse a judicial body, charged with the difficult and sensitive task of
adjudicating on a complaint of racial discrimination, of itself practising racial discrimination in
its conduct of the proceedings and to do so in circumstances which were wholly unwarranted.
We accept Mr Burns’ submission that the history of the hearing before the Lamb tribunal,
carefully set out in their reasons, shows that in fact the tribunal bent over backwards to
accommodate the applicant and her unqualified representative in a way which a professional
advocate, of whatever race or sex, could not expect.
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11. 25 However, it is the duty of any judicial body to approach its task with impartiality and
equanimity, not to abdicate its responsibility. Where its authority is challenged it must deal
with that challenge itself.
26 In the present case we have no doubt that the proper course was for the tribunal to return
from its deliberations and inform the parties of its collective view of Mr Harry’s remarks.
Before discontinuing the proceedings it ought to have required Mr Harry to affirm or withdraw
his accusations. If he continued to press his claim of racial bias it would then be for the
tribunal, either of its own motion or, more likely, on the basis of an application which was in
fact made by the respondent after discontinuance had been ordered and thus not entertained by
the Lamb tribunal, to consider using its powers to order a strike out under rule 13(2)(e) (there
being no power in the tribunal to punish a party or a representative for contempt) and to give
appropriate directions for that purpose. Alternatively, if he withdrew his remarks, it would then
have been open to the tribunal to continue the hearing, with or without an adjournment
occasioned by the absence of the applicant.
27 It follows, in our judgment, that the Lamb tribunal was wrong to order discontinuance
without notice to the parties in this case.
The second question
28 It follows from our answer to the first question that the applicant’s appeal against the
Lamb decision succeeds. In these circumstances, what of Southwark’s cross-appeal?
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12. 29 Mr Sykes submits that the proper order, having allowed the appeal, is for us to direct
that the Lamb tribunal be reconvened now to continue hearing the applicant’s complaints.
Alternatively, he invites us to direct that the matter be re-heard on its merits before a fresh, third
tribunal.
30 We reject the first option on practical grounds. Having declared themselves, rightly or
wrongly, to be incapable of fairly adjudicating on the complaints it would be patently absurd for
us to direct the Lamb tribunal to do just that.
31 The choice appears to be between directing a rehearing before a third tribunal or
upholding Southwark’s cross-appeal and proceeding on the basis of a strike-out application
under rule 13(2)(e).
32 We have no doubt that given the nature of the remarks made by Mr Harry, set against
the background of his repeated applications for an adjournment on the grounds of the
applicant’s absence, coming on top of his being given adjournments to prepare his case during
the first ten days of hearing before the Lamb tribunal (reasons paragraph 4) that the proper
course for that tribunal to take was to adjourn the case, giving the applicant notice of the
possibility of a strike out under rule 13(3) and an opportunity to be heard on the strike out
application. In effect, the equivalent of the Warren tribunal hearing on notice, as that one was.
33 The next question is whether, exercising the powers of an Employment Tribunal under
section 35(1)(a) ETA 1996, we should strike out the complaints and make an order for costs
against the applicant.
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13. 34 Mr Sykes takes principally two points against the strike-out order. First, he submits that
the scandalous and vexatious threshold has not been crossed on the facts of this case. Secondly
he argues that the applicant herself should not be fixed with the conduct of her representative
which occurred in her absence, that absence being for good reason, illness, as the Lamb tribunal
found.
35 Dealing first with whether Mr Harry’s conduct can properly be described as scandalous,
Mr Sykes has referred us to the case of R v Hill [1986] CLR 457, in which an observer in the
public gallery shouted that the judge was biased and a racist. He was sentenced to seven days
in prison for contempt by the judge. The Court of Appeal dismissed his appeal on the ground
that the insult deliberately directed at the judge was of a gross and scandalous kind and was a
classic example of contempt, palpably calculated to interfere with the administration of justice.
36 We do not accept the distinction which Mr Sykes seeks to draw between that case and
the present, namely that Mr Harry did not raise his voice. In our view Mr Harry, in making an
unwarranted charge of racial bias was thereby attempting to interfere with the due
administration of justice. Indeed, he effectively succeeded, since the Lamb tribunal then rose to
the bait and ordered discontinuance with all the prejudice which that course may cause to the
respondent. We find that his conduct was scandalous, as did the Warren tribunal and, coming
on top of his repeated applications for an adjournment, was also vexatious.
37 Secondly, ought the applicant herself to be fixed with her representative’s conduct in her
absence? She plainly gave him express instructions to persist in his applications for an
adjournment, as appears from the history set out in the Lamb tribunal’s reasons. So far as his
remarks of less favourable treatment on racial grounds are concerned, we first accept Mr Burns’
submission that the structure of rule 13(2)(e) plainly envisages that a case may be struck out
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14. where the conduct of proceedings on behalf of a party is scandalous or vexatious. We think that
it is sufficient that the party has instructed the representative to conduct the case on her behalf.
However secondly, on the particular facts of this case, we are entitled to take into account the
contents of an affidavit sworn by the applicant in these appeal proceedings on 11 March 1998, a
time when she was represented not by Mr Harry but by solicitors. We think the flavour is
caught by these extracts from paragraphs 8 – 9 of that affidavit:
“I can only sum up that I felt that the tribunal both LAMB and WARREN were abusing their
power and authority. They were very bulling (sic) to my representative and very polite to the
White Respondent Counsel Mr Burns.”
I am fortified that the Chairmen LAMB and WARREN were biased and acted improperly. I
do not believe that they are fit and proper persons to be Chairmen presiding in cases involving
race and sex Discrimination which requires inter alia ‘trust, honesty, integrity and fairly in
dispensing with justice’ (sic)”
38 It is clear to us from that evidence, which we shall not permit Mr Sykes to “withdraw”
as he asked us to do, that the applicant herself wholeheartedly endorsed and ratified the remarks
made by Mr Harry to the Lamb tribunal.
39 In these circumstances we have concluded that we should ourselves take the same
course as that taken by the Warren tribunal and strike out these complaints under rule 13(2)(e)
on the grounds that the proceedings were conducted by or on behalf of the applicant
scandalously and/or vexatiously.
40 Having so found, we have no doubt that the applicant acted unreasonably in conducting
the proceedings within the meaning of rule 12(1), as the Warren tribunal found, and given her
means at the time of that hearing, we uphold the costs order then made in favour of the
respondent, limited to one day’s costs, being an amount assessed in a sum just below the
statutory maximum of £500.
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15. 41 Accordingly we shall allow both the appeal and cross-appeal against the Lamb tribunal
decision and dismiss the appeal against the Warren tribunal decision, which will stand for the
reasons which we have given.
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