Johnson v Edwardian International Hotels [2010] EWCA Civ 466

Application for permission to appeal in discrimination claim. Application refused.

The main issue was whether the management of the case meant that the race discrimination claim had not been considered, in circumstances where the claimant was a litigant in person and there had been some thought that he lacked capacity.

In this appeal the claimant argued that his Article 6 right had been breached and he had not been given a full hearing. Wall J rejected this submission as it was apparent that the claimant had consented to the orders arising from the case management discussions. He also found that the issues to be tried identified by the employment judge and been fully and properly investigated.


Case No : A2/2009/1782
Neutral Citation Number: [2010] EWCA Civ 466

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 24th March 2010




**JOHNSON (Applicant)

Edwardian International Hotels (Respondent)

( DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court )

The Applicant appeared in person, accompanied by Naomi Bub of the PSU.

The Respondent did not appear and was not represented.

Judgment (As Approved by the Court)
Crown Copyright ©

**Lord Justice Wall:
**1.This is an application by Mr Samuel Johnson for permission to appeal against a decision of the Employment Appeal Tribunal given by HHJ McMullen QC sitting alone on 23 July 2009.  HHJ McMullen dismissed Mr Johnson's appeal against a decision of the employment tribunal dated 2 December 2008.  I will deal with the history in just a moment.

2.Mr Johnson has argued his case today in person with good humour and good sense and I am very grateful as always to the PSU for coming along to accompany him.  Mr Johnson has to understand something which many litigants in his position do not understand, namely that this court, the Court of Appeal, is a court of law and the only basis upon which I can entertain or invite the court to entertain an appeal from the Employment Appeal Tribunal is that the appeal raises a point of law and that point of law has a reasonable prospect of success or there is some other compelling reason for the appeal to be heard.  If HHJ McMullen was entitled to do what he did on the material available to him and if he committed no error of law or if the tribunal itself, the employment tribunal, committed no error of law, that is the end of the matter as far as this court is concerned, so our powers are very limited.

3.The case goes back a long way and I propose to summarise it very shortly.  Mr Johnson was employed as a kitchen porter by the defendant and he was dismissed.  He brought a substantial number of claims against the defendant alleging race discrimination and unfair and wrongful dismissal, and initially a problem arose because the respondent raised a question as to whether or not Mr Johnson had capacity to conduct litigation, and that in turn raised an issue as to whether or not the employment tribunal could appoint a next friend to act for Mr Johnson if it found that he lacked capacity.  In the event the employment judge made an order staying Mr Johnson's claims until that matter had been resolved.

4.Mr Johnson appealed that decision to Underhill J, and Underhill J decided that the Official Solicitor could not be engaged in the tribunal proceedings, but that the whole question should be dealt with by an employment judge under conventional case management powers.  Thus it was that the case came before Employment Judge Houghton sitting alone in the employment tribunal held at London South on 8 July, and on that occasion, as today, Mr Johnson was in person.  The hotel was represented by Mr Jupp of counsel and an order was made for the trial of Mr Johnson's claims.

5.The employment judge was careful to grant an application by Mr Johnson to amend the Particulars of Claim, to correct paragraph numbers and add a further claim for wrongful dismissal, and the employment judge identified three essential complaints.  The first was that Mr Johnson had been unfairly dismissed by the respondent.   The second was that the respondent had treated him less favourably on racial grounds and there was a specific reference to watching a football match between Ghana and Brazil when Mr Johnson alleged that he had been discriminated against, and the employment judge critically, having identified those two issues, commented, and I quote from paragraph 5 of the reasons:

"The other matters raised by the claimant in these Particulars provided in support of his complaint of unfair dismissal in the Claim Form are agreed to be advanced by way of background to the above complaints and are not advanced as discrete complaints of lawful discrimination for which remedy is sought.  This includes the allegation made by the claimant that Muslim colleagues attempted to persuade him to convert to the Muslim faith when, it is alleged, they discovered that the claimant had a Jewish background."

6.The third complaint identified by the employment judge, which was introduced by amendment at the case management discussion, was that the claimant was wrongly dismissed by the respondent, his contention being that the dismissal was without notice and in breach of his contract of employment.

7.Those were therefore the matters which were identified by the employment judge as appropriate to be tried and they were duly tried over a period of three days by an employment tribunal at London South chaired by Employment Judge Gumbiti-Zumoto.  I have before me the reasons which the tribunal gave for reaching its decision, which dismissed the complaints of race discrimination but found that Mr Johnson had been unfairly dismissed.  The tribunal ordered a separate remedies hearing and made an award of £900 to Mr Johnson.  He produced the cheque this morning saying he had been concerned not to cash it, because if he cashed it he would be deemed to be accepting the verdict which was made.

8.He was dissatisfied with that conclusion.  He appealed and was told that he could issue fresh proceedings if he wished to, but he chose not to do so because he had appealed and the appeal was due to come before both HHJ McMullen and then this court.  HHJ McMullen dismissed the appeal on the basis there was no error of law in the tribunal's finding that the matter had been properly regulated by the employment judge at the case management conference and there was therefore no error of law.

9.There had been a fresh notice put in by the claimant, Mr Johnson.  In paragraph 11 of his judgment HHJ McMullen deals with that by saying:

"In accordance with rule 3, the Claimant was offered the opportunity to have a fresh Notice of Appeal heard before a judge.  He has done both, in sequence. and on 12 March 2009 a fresh notice of appeal was rejected by HHJ Richardson in the following terms:

'the Employment Appeal Tribunal deals only with questions of law.  There is no appeal on questions of fact.  I do not think the revised Notice of Appeal already read raises any arguable ground for appealing on a question of law.  Contrary to paragraph 9 of the revised Notice of Appeal, the tribunal did take cognisance of a breach of the statutory provisions and found the dismissal unfair.  I detect no error of law in the Tribunal's reasoning; in particular the Tribunal properly considered the race discrimination claim must also succeed.  I can detect no practical procedural in the Tribunal's proceedings.'"

And, dissatisfied with that, Mr Johnson appealed to HHJ McMullen.

10.HHJ McMullen, having recited the background in perhaps slightly more detail than I have done, said at paragraph 18:

"It is contended that the Tribunal failed to deal with the claimant's claims on the grounds of religious discrimination, sexual orientation and on the grounds of victimisation.  Secondly it is contended that, although the Claimant is not disabled, a point about disability is not to be abandoned.  A claim about the absence of written particulars Mr Purchase [that was counsel under the Elas scheme and appearing for Mr Johnson] took no further, except to draw my attention to the issue and tell me those last two are not abandoned.  What are live, however, are complaints about discrimination."

11.The learned judge continued in paragraph 19 :

"In my judgment this matter is resolved in a one-line sentence: this was determined at the CMD, on 8 July 2008, without an appeal.  Employment Judge Houghton decided what the issues were to be.  Careful consideration was given to the vast number of claims in various jurisdictions that the Claimant was invoking, in the light of the determination of Underhill J that the case should go forward.  It is common ground that the Judge identified unfair dismissal and race discrimination as the complaints that were to be pursued."

Paragraph 20:

"As to the other matters, the employment judge said this:"

And again he then reads paragraph 5 of Employment Judge Houghtonn's reasoning.  In paragraph 21:

"The only other matter was wrongful dismissal arising out of an amendment which the claimant sought and which was granted, a claim for wrongful dismissal was included.  In the documentation submitted which was originally submitted with the claim, some slight amendments have been put in, otherwise the substance of the claim is as it was."

Paragraph 22:

"In my judgment, the other matters made by the claimant include all the issues which I have briefly described, making allegations…in respect of a number of incidents.  But these were not to be decided at the Employment Tribunal.  The Judge recorded that matters were agreed, simply to be advanced by way of background and not as individual complaints.  No issue has been raised before me as to why no appeal was to me about that direction.  The tracks for this judgment were laid out the Houghton CMD and were, I hold, followed faithfully by the…three-person tribunal.  It was not required to make findings on all the other allegations in the light of the CMD and that is, therefore, the simple solution."

12.Mr Johnson feels very strongly that his claims have not been properly heard.  He says that his rights, in particular his rights to a fair trial under Article 6 of the European Convention, have been breached and that he has not therefore had a full and proper hearing.  He says as a subsidiary point that the figure awarded to him in any event is too low, since if the dismissal was unfair on procedural grounds then it was unfair, and that the award should not have been limited to the figure that has been given on the cheque that he has.

13.As I say, he has not instituted fresh proceedings because of this particular appeal.

14.The difficulty I have is that it does seem to me that the matter was dealt with by District Judge Houghton at the case management discussion, which is in my papers and which of course I have read.  Mr Johnson argues that he did not consent to the orders made by District Judge Houghton, but the fact remains that there was no appeal against Employment Judge Houghton's decision and the case proceeded on the basis of the directions which the employment judge gave.  It seems to me that the issues which the employment judge indicated should be tried were fairly and properly tried, they were resolved on their facts partly in favour of Mr Johnson and, like the judge, I can detect no error of law in what has happened.

15.But that was also the view of the single Lord Justice who dealt with this matter on paper, Elias LJ, who likewise came to the view that no error of law was raised by the appeal, he taking the view :

"There is no substance in this appeal.  In part, the applicant is seeking to re-open matters he is not allowed to pursue following the determination made at the case management hearing before Employment Judge Houghton.  There is nothing to suggest that that hearing was in any way improperly conducted or that the applicant was misled. It was obviously sensible to change the identity of the defendant.  There was nothing untoward or improper about that.  The original Tribunal decision was carefully reasoned.  They found in the applicant's favour on one ground and awarded compensation."

And therefore permission to appeal should be refused.

16.As I said at the outset of this judgment, if there was material upon which HHJ McMullen could legitimately dismiss the appeal then that is the end of the matter as far as this court is concerned, but I have to say, and having now read the papers, I agree with the judge that the matter was dealt with carefully at the case management conference.  It does appear that the order made at the case management conference was made by consent.  It was not appealed.  The hearing then proceeded in the employment tribunal.  The employment tribunal reached a decision which was open to it on the facts and in my judgment HHJ McMullen was therefore right to dismiss the appeal from it.  It follows that, ably as Mr Johnson has argued his case, there is no realistic prospect of an appeal to this court against HHJ McMullen's order succeeding and therefore the application is to be refused.

17.As Mr Johnson is in person, however, although as I say I am grateful for him being accompanied today by the PSU, I propose to direct that when my judgment is transcribed, as it will be, a copy shall be made available to him at public expense, so that he can see what I have said and understand my reasoning.

Order: Application refused

Published: 06/05/2010 10:53

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