The appellant had been dismissed from a previous employment in 2007 and brought Tribunal proceedings against her employer, the hearing taking place during her new employment with the respondent in the present case. She did not want her new employer to know she was attending the hearing, so lied about the reason why she needed a day off work. A colleague found out that she had attended the hearing and thus lied, and told a manager of the department in which the appellant worked. When questioned the appellant vehemently denied the allegation and the matter was dropped. The appellant was later dismissed from her new employment, the employer stating that this was because of her unsatisfactory performance. However, the appellant alleged that her employer had dismissed her because of her involvement in the previous proceedings. At the ET the respondent employer said that they were unaware of the nature of the previous proceedings or the appellant’s role in them, so therefore she could not have dismissed by reason of doing a protected act. The appellant claimed that they had known because she apparently saw one of the lawyers, who had acted in the previous case, at the respondent’s office, and the inference was that the lawyer was there to bring evidence that the appellant had been at the hearing. The Employment Tribunal ruled that the appellant’s victimisation claim must necessarily fail because she had failed to prove any knowledge on the part of the dismissing officers that she had previously carried out a protected act. Not only did the ET rule against the appellant they also awarded costs against her. Applications to appeal to the EAT failed, and the appellant then filed, out of time, her notice appealing against these failed applications.

The main point for consideration by the Court of Appeal was whether the EAT judge was wrong not to allow the appellant to raise before the appeal tribunal a point which had not been advanced at the ET. This new point was to the effect that it was sufficient to make good a case of victimisation if the respondent had merely suspected that the appellant had brought proceedings against her previous employer, and that it was ‘by reason that’ the respondent had so suspected that it dismissed her. However, this point had not been pleaded in the ET1, nor had it been raised in either of the two rejected notices of appeal to the EAT. This was not the main reason why the EAT judge refused to regard the new point as an arguable one: the reason was that the EAT could not turn itself into a fact finding tribunal for the purpose of deciding a new factual case that the appellant could have run below but had not. There were other assertions regarding bias, unauthorised evidence and the fairness of the procedure, all of which were rejected. The Court of Appeal ruled that the appellant could not have a second bite of the cherry and therefore refused to remit the case back to the Tribunal. They also said that the costs order was one which the ET was entitled to make.

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Case No: A2/2010/0707

Neutral Citation Number: [2010] EWCA Civ 1266

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JUDGE McMULLEN QC

UKEATPA/1375/08/JOJ

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Tuesday 27th October 2010

Before:

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Between:

**MRS C HOOPER** (**Appellant)**

 **- and -**

**SHERBORNE SCHOOL (****Respondent)**

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(DAR Transcript of

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The **Applicant** was represented by her husband, **Mr Roy Hooper**.

The **Respondent** did not appear and was not represented.

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**Judgment**

**(As approved by the Court)**

**Crown Copyright ©**

**Lord Justice Rimer:**

1. This is a renewed application for permission to appeal, Pill LJ having refused permission on the papers on 8 June 2010. The applicant is Mrs C Hooper, who seeks to challenge an order made by His Honour Judge McMullen QC in the Employment Appeal Tribunal on 9 September 2009. Mrs Hooper is not present in court today, but is represented by her husband, Mr Hooper, who also represented her in the tribunals below as well as in a previous set of tribunal proceedings to which I shall be referring. I have, exceptionally, allowed Mr Hooper to address me on his wife's behalf and he has done so, albeit extremely briefly, confining himself effectively to saying that he is simply relying on the case he has advanced in the skeleton argument he has prepared.

2. I mention secondly, also as a preliminary matter, that the previous tribunal proceedings that Mrs Hooper brought were against a company called Colten Care Limited. She was unsuccessful. She appealed, or sought to appeal, against the failure of that claim to the Employment Appeal Tribunal, but that was also unsuccessful; and, on 31 July 2008, I refused permission on the papers for her to appeal to the Court of Appeal. She renewed that application orally and Sedley LJ refused it on 15 October 2008. I have mentioned my earlier role in those proceedings to Mr Hooper, since experience tells me that those acting for themselves have perhaps an excessive sensitivity to matters of supposed bias, and I was concerned that Mr Hooper might consider that, as I had previously dealt adversely with one of his wife's applications, I ought not to deal with this one. I would not regard any such objection as having any substance to it, but Mr Hooper made it plain that he has no objection and so the matter proceeded. With those introductory matters, I come now to the present application.

3. The applicant is black. She commenced employment with the respondent, Sherborne School, on 3 January 2007. Her role was that of a front of house assistant in the catering department. She was dismissed on 20 March 2007. She had previously been employed by the company to which I have referred, Colten Care Limited, which ran a nursing home. Following her dismissal by the School she commenced proceedings against the School in the Southampton Employment Tribunal, asserting that her dismissal was an act of victimisation against her that had caused her detriment.

4. The basis of that claim was that she had previously brought employment tribunal proceedings under the Race Relations Act 1976 against Colten Care, and her case before the tribunal against the School was that, following the School's discovery of her earlier claim, it had dismissed her "by reason that" she had brought those earlier proceedings. If the School *had* dismissed her for that reason, then no doubt Mrs Hooper's victimisation claim against it would have succeeded: see sections 2 and 4 of the 1976 Act. Mrs Hooper's ET1 specifically asserted a case under section 2(1)(a).

5. The claim was heard by the employment tribunal (Employment Judge Ross, Mr A M Reed and Mrs V A Bennett) over two days in May 2008. Mrs Hooper was represented by her husband, and the School by counsel, Mr P Woodhouse. The School's defence was that it had dismissed her because of her poor performance in her job, and that, at the time of her dismissal, it was unaware of her earlier claim against Colten Care. The tribunal found on the facts that the School was so unaware, it accepted the School's reasons for the dismissal of Mrs Hooper and dismissed her claim. Unusually, it also ordered Mrs Hooper to pay costs to the School assessed at £7,000. The tribunal's reasons for its judgment were sent to the parties on 16 September 2008 and the tribunal's findings of fact were set out in paragraphs 4 to12.

6. The relevant findings of fact can be summarised as follows. The hearing of Mrs Hooper's claim against Colten Care was fixed for Monday 26 February 2007, for which Mrs Hooper would require to take the day off from work at the School. Instead of explaining to the School that this was why she wanted to take the day off, she lied to Mrs House, a manager in the catering department, that she wanted the day off in order to take her daughter to a hospital appointment. Some time after 26 February, however, one of the catering staff at the School told Mrs House confidentially that Mrs Hooper had been untruthful about her outing on 26 February and that she had in fact been at a tribunal that day in connection with proceedings involving Colten Care. That employee had learnt about the proceedings from a friend of hers who had worked with Mrs Hooper at the nursing home.

7. Mrs House's evidence to the tribunal, which I infer was accepted, was that she was not told the nature of the Colten Care proceedings or of Mrs Hooper's role in them. Nevertheless, Mrs House related what she had been told to Mr Williams at the School, who raised the matter with Mrs Hooper on 15 March 2007. He told her that he had heard that she had been at a tribunal on 26 February 2007, but she vehemently denied it, sticking to her story that she had taken her daughter to a hospital appointment. Mr Williams left the matter at that. The tribunal explained in paragraph 8 the concern that Mrs House and Mr Williams were also having at this time about Mrs Hooper's performance at work, and they explained in paragraph 11 how Mr Williams considered this with Claire Taylor, the personnel manager.

8. A decision was taken to dismiss Mrs Hooper. Mr Williams was one of the dismissing officers and gave evidence that his only knowledge of the previous proceedings in which Mrs Hooper had been involved was that she "was involved in some proceedings on 26 February 2007" and that the reason for the dismissal was related to her unsatisfactory performance rather than any concern that she had lied with regard to her absence from the School on 26 February. Mrs Taylor, also a dismissing officer, gave evidence to the same effect. The tribunal found in paragraph 14 of their reasons that both Mr Williams and Mrs Taylor were unaware of the nature of the previous proceedings or of Mrs Hooper's role in them. Mrs Earls-Davis also gave evidence to the tribunal and, although the tribunal does not, I think, explain the nature of her involvement, I infer that she may also have been involved in the dismissal decision. She gave evidence that her knowledge about the previous proceedings was similarly limited and it is apparent that the tribunal accepted her evidence.

9. Mrs Hooper's case at the tribunal proceedings was, however, that contrary to the findings that the tribunal eventually made, the School *did* know that she had brought a racial discrimination claim against Colten Care; and to make that good she asserted that on 19 March 2007 she came face to face in the School grounds with Susan Evans, a lawyer with Lester Aldridge, solicitors, who had acted for Colten Care in the previous proceedings. Mrs Hooper's evidence was that when she saw Mrs Evans she was heading towards the School bursary, and her case was, I understand, that it was a necessary inference that Mrs Evans had brought evidence to the School to the effect that Mrs Hooper had in fact been at the employment tribunal on 26 February 2007, something she had herself persistently denied. That factual assertion was, however, roundly disputed by Mrs Evans, who gave evidence to the tribunal that not only had she not been at the School on 19 March 2007, she had never been to it in her life. In paragraph 11 the tribunal gave their reasons for accepting Mrs Evans' evidence in this respect, and rejecting Mrs Hooper's case based on her assertion as to Mrs Evans.

10. Having rejected Mrs Hooper's case in that respect, and having made the findings that they did as to the limits of Mr Williams's and Mrs Taylor's respective knowledge of the previous proceedings, the tribunal concluded in paragraph 15 that Mrs Hooper's victimisation claim must necessarily fail. That was because she had failed to prove any knowledge on the part of the dismissing officers that she had previously carried out a protected act of the type described in section 2(1)(a) of the 1976 Act. It followed that her dismissal could not have been "by reason that" she had performed any such act, and so her claim failed and had to be dismissed.

11. The tribunal then dealt with an application against Mrs Hooper for costs under rules 40 and 41 of the Employment Tribunals Rules of Procedure, which are in Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. That was, as I have indicated, an unusual application, but the basis of it was that, so the School asserted, Mrs Hooper and her husband had conducted the proceedings unreasonably and there is of course a jurisdiction in an employment tribunal to award costs in such a case. In paragraphs 16 and 17 of their reasons the tribunal explained the basis of the application and they upheld it; and in paragraph 18 they ordered Mrs Hooper to pay costs of £7,000 to the School, whose total costs of resisting her proceedings were said to be £25,000. The tribunal expressly declined to explore Mrs Hooper's ability to pay that sum, pointing out that under rule 41(2) such an exploration was a discretionary exercise.

12. The outcome of the case therefore turned on the tribunal's findings of fact, being findings for which there was plainly supporting evidence, and so there was, on any objective consideration of the decision, no prospect of any appeal to the Employment Appeal Tribunal, which, as is well known, has no jurisdiction to entertain appeals on issues of fact.

13. Mrs Hooper nevertheless sought to appeal to the appeal tribunal. Her appeal was initially stayed pending the disposal of her application for a review of the tribunal's decision, which was refused. Her grounds of appeal were then twice rejected under rules 3(7) and (8) of the Employment Appeal Tribunal Rules 1993 as raising no reasonable grounds of appeal, following which Mrs Hooper exercised her right to an oral hearing under rule 3(10) in order to assert otherwise before a judge. The route so followed, including the application for a review of the employment tribunal's decision, was along a path well trodden by those who, by choice or necessity, find themselves acting in person in employment tribunal proceedings.

14. For the reasons he gave in his judgment of 9 September 2009, Judge McMullen, an enormously experienced judge of the appeal tribunal, rejected Mrs Hooper's case, directed that no further action be taken on her appeal and dismissed it. His order was sealed on 10 September 2009 and provided that any application for leave to appeal to this court must be made within 21 days of the seal date. Time for appealing therefore expired on 30 September 2009, whereas Mrs Hooper's appellant's notice appears to have been filed in the Court of Appeal on 4 March 2010, which was over four months late, and it was actually sealed by the Court of Appeal on 25 March 2010. No reasons have been advanced anywhere, so far as I can see, for that extraordinary overrun, but I will move on to the merits of the application.

15. It is not entirely easy to identify precisely what points are sought to be raised in what is, having said that, a very full and carefully drafted skeleton argument prepared by Mr Hooper; and he has plainly devoted considerable care and thought to the advancement of Mrs Hooper's case. One point, and it may well be the central point, is to the effect that Judge McMullen was wrong not to allow Mrs Hooper to raise before the appeal tribunal a new point that had plainly not been advanced before the employment tribunal. That was to the effect that it is sufficient to make good a case of victimisation under section 2(1) of the 1976 Act if -- by reference to the circumstances of this case -- the School had merely *suspected* that Mrs Hooper had brought race discrimination proceedings against Colten Care or had alleged race discrimination against it; and that it was "by reason that" the School had so suspected that it dismissed her.

16. I would accept that in principle a case based on such suspicion could, if made good on the facts, succeed. That is apparent from the two closing lines of section 2(1) of the 1976 Act. Mrs Hooper's problem, however, is that that case was not made before the tribunal. It was not pleaded in her ET1 and there is no mention of it in the tribunal's reasons. Judge McMullen rejected it as a possible ground of appeal in a summary manner at paragraph 19 of his judgment. His point was that it had not been raised in either of the two rejected notices of appeal that Mrs Hooper had previously prepared (neither of which is before me) and so it was an attempt to raise a new point at the rule 3(10) hearing when (as I infer, although Judge McMullen did not say so in terms) the function of that hearing was to persuade the appeal tribunal that the points already raised were, contrary to the tribunal's earlier assessment, good arguable points. That was not, however, his main reason for refusing to regard the new point as an arguable one. His main reason was the substantive one that its determination would require a factual investigation of the School witnesses as to whether they had any such suspicion. That had not been done before the employment tribunal, where it had not been a part of Mrs Hooper's case; and it was not something that Judge McMullen was prepared to permit to be investigated before the appeal tribunal.

17. In my judgment, Judge McMullen was plainly correct to refuse to allow this new point to be raised. Appeals to the appeal tribunal against decisions of an employment tribunal lie only against alleged errors of law but the employment tribunal made no error of law in relation to this point since it was not one that was canvassed before it. The appeal tribunal could not turn itself into a fact-finding tribunal for the purposes of deciding a new factual case that Mrs Hooper could have run below but had not. That is not the function of the appeal tribunal. The most that the appeal tribunal might perhaps have been able to consider would be a remission of the case to the employment tribunal for a rehearing on the new point, on which it would have to make further findings and then come to a conclusion on them.

18. I am prepared to assume that the appeal tribunal might perhaps have had a jurisdiction to make an order for such a remission, although I am unclear as to the basis on which it could properly have done so, since it would seem to me that the necessary starting point would be a conclusion that the employment tribunal had made an error of law whereas, for reasons I have given, it did not. But one thing about which I am clear is that the making of any such order would be a quite exceptional one and it is obvious that there would be no possible justification for it in this case. The basic rule is that the parties to employment tribunal cases -- and this applies as much to parties who are acting for themselves as to those who are acting by lawyers -- must put their entire case before the tribunal, and if they omit to do so they are not ordinarily entitled to have a second bite of the cherry later when they have thought of a new case that they might have made first time round but did not. This aspect of Mrs Hooper's proposed challenge to Judge McMullen's order is, with respect to Mrs Hooper, hopeless.

19. Mr Hooper's skeleton argument also makes somewhat imprecise criticisms of the fairness of the procedure before the employment tribunal, and, in his very brief oral elaboration of his written argument in his address to me this morning, he emphasised that he thought there were indeed exceptional circumstances which justified permission to appeal being given. These exceptional circumstances -- which he did not explain in his oral argument -- are not explained with any clarity in his written argument either. But there is a generalised assertion that the employment tribunal failed to deal with all the issues before it, which he asserts amounts to a "serious irregularity" within the meaning of Section 68 of the Arbitration Act 1996. The employment tribunal is not, however, an arbitrator and so section 68 is irrelevant for present purposes, although I would accept that, quite apart from section 68, if the employment tribunal had failed to deal with material issues which were before it for determination, that might amount to an appealable error of law. Mr Hooper has not, however, identified any such omissions and none is referred to in Judge McMullen's judgment.

20. Then there is a complaint that there was no fair hearing that was free from bias or apparent bias. That complaint, which is not elaborated, may be linked to the further complaint in the skeleton argument that Mr Hooper was stopped by the tribunal from asking questions of witnesses and was deprived of the right to procure the attendance of witnesses. There is, however, no material before this court, nor, I infer, was there any material before the appeal tribunal, providing any support for these assertions. If an appeal to the appeal tribunal seeks to raise allegations of procedural impropriety or bias or the like against the employment tribunal, it is necessary for the appellant first to spell out with particularity the nature of the complaints being made. The usual practice of the appeal tribunal is then to refer the complaints to the employment judge and to the lay members who dealt with the case for their comments on them. That is a well-established practice, and if it is carried out, as it ordinarily is, the appeal tribunal then has something to go on in attempting to assess whether there is any substance in the complaints made. Since the complaints made by Mrs Hooper have nowhere been spelled out, that practice has not been followed and they therefore amount to nothing more than generalised and unsupported assertions in respect of which I can only proceed on the basis that they lack any substance. There is simply nothing before court that enables it to conclude that there is any basis at all for any criticism of the conduct of the proceedings by the employment tribunal.

21. A point is also made that Employment Judge Ross, who dealt with the employment tribunal proceedings, was a last minute change, because the case had originally been listed before Employment Judge Twiss, who had heard and been party to the dismissal of Mrs Hooper's claim against Colten Care. I cannot see what is wrong with that switch having been made.

22. Judge McMullen also summarily rejected the submission to him that Mr Hooper was stopped from asking questions. So would I. The point is repeated in Mr Hooper's skeleton argument. But, as I have said, if a complaint of that nature is being made, details should have been provided so that the employment judge could have been invited to comment upon it. The judge would of course have been making a note of the evidence and could have responded to the criticism.

23. Further assertions are made in the skeleton argument that Employment Judge Ross admitted what is said to be "unauthorised evidence", although no explanation is given as to what that is supposed to mean; and a generalised comment is made that he did not deal with all the issues raised in Mrs Hooper's witness statement and in the document bundle, neither of which, I may say, has been put before me. This imprecise complaint also goes nowhere. The tribunal's function was to decide the issues of fact that it had to decide in order to rule on the case and to rule accordingly. It did so. There is also a complaint that Employment Judge Ross then refused to review his judgment. I do not, however, understand that an appeal against such refusal was before Judge McMullen. Nor therefore can a complaint about that refusal now be raised in this court.

24. Finally, there is complaint about the costs award, and the point is made that the tribunal did not take Mrs Hooper's ability to pay into account. But it was not required to do so under the applicable rules and it recorded specifically in paragraph 18 of its judgment that it did not consider it appropriate in the particular case to do so. No point as to the fact that the tribunal did not consider Mrs Hooper's ability to pay was raised before Judge McMullen, nor was any point raised before him as to the amount of the order (see paragraph 14 of his judgment) and no such points can therefore now be raised for the first time in this court. The only argument addressed to Judge McMullen appears to have been one to the effect that the costs order should not have been made, which was rejected. The making of the order was, in the circumstances of the employment tribunal explained, plainly one that it was entitled to make and there is no basis whatsoever for any challenge to it before this court.

25. With respect to Mr Hooper, who has prepared his wife's case in his skeleton argument with, as I have said, apparent care and thought, he is trying to make bricks with a complete absence of straw. This application for permission to appeal is about as hopeless as I have ever seen. I refuse to extend the applicant's time for appealing, and I refuse permission to appeal.

**Order:** Applications refused