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Case No: A2/2010/0583

Neutral Citation Number: [2010] EWCA Civ 1234

IN THE COURT OF APPEAL ( CIVIL DIVISION )

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Tuesday 12th October 2010

Before:

LORD JUSTICE PILL

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Between:

Agbodo (Applicant)

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Hertfordshire County Council (Respondent)

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The Applicant appeared in person.

The Respondent did not appear and was not represented

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Judgment (As Approved by the Court)

Crown Copyright ©

**Lord Justice Pill:
**1. This is an application for permission to appeal against a judgment of the Employment Appeal Tribunal, HHJ Peter Clark presiding, handed down on 18 February 2010. The Tribunal dismissed an appeal from a decision of an employment tribunal held at Watford. The decision was sent to the parties on 15 February 2008. The hearing before the employment tribunal took place on 15-18, 20, 21 and 22 January 2008.

1. The decision of the employment tribunal was:

"The claimant's claims of race discrimination fail. An order for costs in the sum of £10,000 is made against the Claimant in favour of the Respondent [that is the Hertfordshire County Council] and the Claimant is ordered to pay the Respondent the sum of £10,000."

1. I refer first to the procedure before the EAT. One of the grounds of appeal was the lack of reasoning in the employment tribunal's decision. The EAT were clearly impressed by that argument because they requested the tribunal to answer two further questions, and those answers were supplied on 27 February 2009.

1. In the result the applicant, Mr Agbodo, withdrew his appeal to the EAT on that ground and, that being so, he is not able to revive it before this court and in his oral submissions this morning Mr Agbodo has not attempted to do so.

1. Other claims made in the present appeal, at least made in writing, are an allegation of bias against the employment tribunal judge, various particulars being given, and the making of the costs order. However, the central point pursued orally, indeed the only point pursued orally today, is that the tribunal failed to deal with the whole of the claimant's case. Mr Agbodo, in conspicuously clear submissions, if I may say so, has said that the tribunal were persuaded to limit the basis of his claim before the tribunal, and important parts of it were not dealt with.

1. The applicant has referred me to the procedural history. Before the hearing before the tribunal occurred there was a case management meeting on 26 May 2007. There was discussion about the content of the applicant's ET1. A case management order was made on 21 June 2007 and that sets out the issues, the headings being "race discrimination (direct discrimination section 1)"; "race discrimination (harassment) section 3A"; "race discrimination victimisation claim section 2".

1. There was, however, a further pre-hearing review on 7 December 2007. The applicant did not attend. The substantive hearing had been fixed for 14 January 2008. Having heard from Hertfordshire County Council, the respondents, the employment tribunal sent a letter to the parties dated 4 January 2008. It stated:

"Mr Agbodo is not calling additional witnesses. It is proposed to postpone the start of the case by a week. Unless there are further developments all parties must attend on 18 January 2008 with a view to sorting out what claims are still live, how they will progress"

1. The county council, in a letter of 7 January 2008, copied to Mr Agbodo, submitted that difficulties would be caused for them if the hearing were to be postponed for one week. It is a full letter in which they refer to the difficulties they would have. They state that they are:

"…extremely hesitant to start attempting to rearrange its witnesses' attendance at this late stage"

1. Reasons are given for that. They objected to the postponement until 18 January 2008, and in the event the hearing began on 14 January. Also in their letter of 7 January the county council set out a proposed timetable. The county council proposed to call a number of members of staff, including senior managers. The applicant contends that his case, as properly understood, included allegations against a number of people and on a number of subjects.

1. Mr Agbodo appeared in person at the hearing before the tribunal. The county council were represented by counsel, Mr Bradley.

1. The applicant's oral submission to me this morning is that counsel somehow forced the case from the broader claim as claimed to a narrower claim. The applicant also refers to the change of judge which occurred, Employment Judge Mahoney in the event conducted the hearing with two lay members.

1. I have read the order which they made. The applicant has submitted his closing submissions to the tribunal, which include broad allegations. They are detailed submissions which run to nine pages, and he has referred me to the concluding paragraphs which state that he was appalled at the suggestion that he had brought the case out of frivolity or vexation. It is a strongly worded statement. I have no reason to doubt that the employment tribunal gave consideration to it.

1. This complaint has been carefully considered by the Employment Appeal Tribunal. The employment tribunal is of course the fact-finding tribunal. The appeal beyond it to the EAT and to this court can only be on a point of law. The point of law alleged by the applicant is a failure to appreciate and deal with the extent of his case. That has been dealt with, it seems to me carefully, by the Employment Appeal Tribunal. They did hear evidence, and I have referred to their direction that the employment tribunal should provide further reasons.

1. It is clear from the judgment that the applicant made exactly the same points before the EAT, as he has made to me this morning. He was represented before the EAT by counsel, Mr Jeffrey Jupp, instructed by the Bar Pro Bono Unit.

1. A section of the EAT judgment is headed "procedural irregularity". It states the applicant's complaint that the tribunal had failed to deal with the whole of his case. They consider the material before them and conclude at paragraph 21:

"On balance we are satisfied that the Claimant did agree Mr Bradley's list of issues, which he accept was given to him, as recorded by the ET."

They then give reasons why on that issue they preferred the case of the respondent.

1. They considered the point, which has also been persuasively put to me, that it is very surprising that, having secured an earlier date than the tribunal had contemplated for the hearing because of difficulties their witnesses would have if an adjournment had been granted, the witnesses were not in the event called before the tribunal. That issue is carefully considered by the EAT, and they can find no error of law arising from the employment tribunal approach.

1. I have to say that in my experience this is a not uncommon occurrence. Counsel advising parties sometimes, with an abundance of caution, require witnesses to be present and in the event the case takes a shape which makes the calling of those witnesses unnecessary. I can read nothing sinister into that, though clearly the applicant's complaint that his case was unfairly narrowed at the tribunal deserved and was given serious consideration by the Employment Appeal Tribunal. The submissions of Mr Jupp, I have no doubt, were also carefully considered.

1. In the course of argument I put to the applicant the difficulty in seeking a better result in this court on an issue such as this one than that he achieved in the Employment Appeal Tribunal. It is the tribunal with the expertise in this area. It appears to me that the complaints, which I understand, about the conduct of the case by the employment tribunal have been carefully considered and in the event rejected by the Employment Appeal Tribunal. I see no real prospect of success in this court.

1. I mention the other points made on paper. Though not pursued, I agree with the Employment Appeal Tribunal on the bias allegations made against Employment Judge Mahoney. I see no real prospect of success on a point of law in this court, equally in relation to the costs order. Tribunals must not routinely order costs. This was a six-day hearing. They were well able to assess the reasonableness of the conduct of the parties. In my judgment, in agreement with the EAT the tribunal were within their powers and within the exercise of a discretion, with which the EAT and this court should not interfere, to make the order they did.

1. Accordingly, well though the applicant has put his case and aggrieved that I have no doubt he feels about the sequence of events described, this application must, for the reasons I have given, be refused.

Order: Application refused