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Appeal No. UKEATPA/0541/10/CEA

UKEATPA/0542/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 September 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MS U RINIKER (APPELLANT)

CITY & ISLINGTON COLLEGE CORPORATION (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MS U RINIKER (The Appellant in person)

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

With the exception of a minor correction, made administratively and without objection by the Respondent, the Claimant's criticisms of the practice and procedure of the Employment Tribunal and EAT were misconceived.

1. This case concerns the internal procedures of the EAT and Employment Tribunals. I will refer to the parties as the Claimant and the Respondent. Between the oral judgment and the order, and its non-expedited transcription, the Claimant has raised a number of issues in writing and the Respondent has responded to one. I incorporate my response at the end.

1. It is an appeal by the Claimant in proceedings before an Employment Tribunal at Watford against decisions recorded in two letters. The Claimant is most concerned about form and I will respect her concerns as best as I can by identifying the relevant materials. In form the Notice of Appeal is against letters directed by Regional Employment Judge Gay to applications made to Employment Judge Postle on 8 and 31 March 2010. These letters in themselves make no sense without an understanding of the complicated procedural background in these cases. But the impact of the appeal is that the Claimant seeks a change in what is contained in the two letters.

1. Her grounds of appeal contained three points. They were considered by His Honour Judge Reid QC under rule 3(7) when he came to this conclusion:

"As to the first ground of appeal, it is a matter for the Tribunal whether it considers it appropriate to make any corrections under the slip rule. It is not usual to use the slip rule to correct grammatical errors, typos or spelling errors. As to the second ground, the prospective appellant has not raised any arguable point. The letter of 31 March 2010 deals coherently with the matter. As to the third point, it is a matter for the Employment Appeal Tribunal to determine whether or not to make an order for the production of the Chairman's (or Employment Judge's) notes. It is not a matter for an appeal against any decision of an Employment Judge. There are no grounds on which this prospective appeal should go further."

The Claimant was dissatisfied with that opinion and sought a hearing under rule 3(10).

1. In Haritaki v SEEDA (UKEATPA/0006/08) at paragraphs 1 to 13, I set out my approach to rule 3. Those paragraphs should be read with this judgment. Appeals to the EAT from an Employment Tribunal are governed by section 21 of the Employment Tribunals Act 1996 which says as follows:

"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal."

And there is listed a number of statutes.

1. It is immediately apparent that an appeal lies as of right and not by permission - or as it is put in section 37 "leave". It is regulated by the material which is available to be put before the EAT and that material must involve a question of law. The procedural rules of the EAT set up a preliminary stage when an appeal is received so that the 2004 EAT Rules, by rule 3 determine that:

"A Notice of Appeal must be served on the EAT with full enclosures of all relevant documents."

And they are prescribed both in the Practice Direction and in a Practice Statement of 2005, and that they must be submitted within 42 days.

1. The procedural rules on a properly constituted Notice of Appeal, that is one which is in time with the relevant documents, is then put into the "sift", a term which appears in the Practice Direction. The Rules regulating the sift are these: 3(7). In determining whether to extend the time for appealing, particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT and the Court of Appeal, as summarised in United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 and Jurkowska v HLMAD Ltd [2008] EWCA Civ 231.

1. In any case of doubt or difficulty, a Notice of Appeal should be lodged in time and an application made to the Registrar for directions.

1. The practice is regulated by the Practice Direction, most recently issued by Elias P in May 2008. Paragraph 9.6 provides as follows:

"9.6 The judge or Registrar, having considered the Notice of Appeal and, if appropriate, having obtained any additional information, may decide that it or any of the grounds contained in it discloses no reasonable grounds for bringing the appeal or is an abuse of the process or otherwise likely to obstruct the just disposal of the proceedings. Reasons will be sent and within 28 days the appellant may submit a fresh Notice of Appeal for further consideration or request an oral hearing before a judge. At that hearing the judge may confirm the earlier decision or order that the appeal proceeds to a Preliminary or Full Hearing. A hearing under Rule 3(10), including judgment and any directions, will normally last not more than one and a half hours. A judge or Registrar may also follow the Rule 3(7) procedure, of his or her own initiative, or on application, at any later stage of the proceedings, if appropriate."

1. The practice is supplemented by an approach taken by the listing officer which regulates both of the sub-rules. The first is that where an Appellant takes the opportunity to submit a fresh Notice of Appeal under rule 3(8) that is generally put back to the same Judge who gave an opinion under rule 3(7), since there is considerable saving of judicial time and the Judge who has read the papers once is in the best position to decide whether or not a fresh Notice of Appeal does get over the hurdles which were in the way of the Appellant when he or she gave the opinion under rule 3(7).

1. The second is that where an Appellant seeks to have the matter heard before a Judge an oral hearing is set up, usually before a different Judge. That again is not invariable but the listing officers will do what they can to see that a different mind approaches the oral hearing and makes a decision.

1. The time limits in this jurisdiction are extremely generous, 42 days is longer than any other appeal process. It is elongated by an additional 28 days for an Appellant to put in a fresh Notice of Appeal. In between those two stages there is some administration and judicial consideration, say two to three weeks. In practice a person is given almost three months in which to lodge a Notice of Appeal against a judgment of an Employment Tribunal.

1. An issue has sometimes arisen as to whether the right to put in a fresh Notice of Appeal and the right to have a hearing before a Judge are mutually exclusive. They are not. The words of rule 3(8) make it clear that all an Appellant has to do when receiving the opinion of the Judge is as of right to submit a fresh Notice of Appeal. No permission is required and no expression of dissatisfaction is required as to the quality of the judicial decision making; as opposed to what occurs in rule 3(10).

1. The stage which is reached, therefore, is to reconstitute the Notice of Appeal and the use of the word "fresh" on a number of occasions in this rule indicates that it is indeed an entirely new Notice of Appeal. The use of the word "jurisdiction" in rule 3(9) reinforces that position. So a Judge then considers the fresh Notice of Appeal.

1. The outcome of those reflections is that I hear the Claimant's application afresh and not by way of appeal against Judge Reid's order. The question for me is whether there is any reasonable ground. The Claimant contends that the rules are imprecise. The rules were sent to her with a copy of Judge Reid's opinion on 16 June 2010. She raised before me an issue as to the distinction between no jurisdiction and no reasonable prospect. She is wrong, there is none, as Ward LJ explained to her refusing permission to appeal against my judgment in Riniker v UCL [2003] EWCA 1991. The current rule, applicable in this case, is contained in rule 3(7) and (10). Judge Reid said that the appeal discloses no reasonable ground for bringing the appeal. Alternatively, under rule 3(7)(b) the appeal may be rejected on the grounds that it is an abuse of the EAT's process.

1. Apart from the procedure in the EAT Rules for a unilateral hearing section 35 of the Employment Tribunals Act 1996 provides as follows:

"35(1) For the purpose of disposing of an appeal, the Appeal Tribunal may—

(a) exercise any of the powers of the body or officer from whom the appeal was brought, or

(b) remit the case to that body or officer.

(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."

1. There is provision for review: EAT rule 33(1). Correction of errors is by rule 33(3) as follows:

"A clerical mistake in any order arising from an accidental slip or omission may at any time be corrected by, or on the authority of, a judge..."

1. In the Employment Tribunal, errors may be corrected under what is generally known as the slip rule, rule 37 which provides as follows:

"37(1) Clerical mistakes in order, judgment or decision or reasons, or errors arising in those documents from an accidental slip or omission may at any time be corrected by certificate by the Employment Judge, the Regional Employment Judge ..."

1. The Employment Tribunal has powers of review. I have summarised the practice in two judgments Secretary of State v Rance [2007] IRLR 665 and Chowles v West UKEAT 0473/08. The effect of rules 34-36 is that if a Judge does not turn down an application for the review of a judgment as having no reasonable prospect of success, the application must be considered and a review must be conducted (see rule 36(1)).

1. The Claimant made a claim against her employer in 2007. There was a protracted procedural history which led in due course to a judgment of Employment Judge Postle on the papers sent to parties on 19 June 2008, striking out the Claimant's claims for failure to comply with the tribunal's directions. She appealed. The appeal was first determined by HHJ Ansell at a preliminary hearing sending some of it to a full hearing. That full hearing was conducted by HHJ Richardson on 15 March 2010, culminating in a judgment handed down on 23 June 2010: UKEAT/0495/08. He dismissed the appeal.

1. The Claimant also sought a review of the strike out judgment and on 27 March 2009 a hearing was conducted. It is described as a pre-hearing review. The reserved judgment was that the strike out order of June 2008 was confirmed and reasons were given in 13 pages.

1. The Claimant decided to appeal against that judgment as well. It was out of time. It was rejected by the Registrar and she declined to exercise her discretion. The Claimant appealed and the matter came before HHJ Peter Clark on 4 March 2010. He dismissed the appeal: UKEATPA/1407/09. He also dismissed another interim appeal from the Registrar. In the course of that he considered the relationship between substantive appeals and appeals against review judgments. There must be separate appeals. The procedural history is set out with care in the judgments of HHJ Peter Clark and HHJ Richardson.

1. An issue arose in the preliminary hearing before Judge Ansell which led to the full hearing before Judge Richardson. That was a request for the notes, taken by EJ Postle at the review hearing. This was refused by Judge Ansell and the matter surfaced again before Judge Clark and he refused it, on the basis that the Claimant had told him that evidence had not been taken on oath or affirmation at the review hearing.

1. The effect of Judge Clark's order was that the appeal against the review would go no further. Since it is the Claimant's complaint that this review judgment contains a number of legal and factual errors, it is not surprising she raised the matter again, this time before Judge Richardson. But Judge Richardson refused to allow, by way of an amendment to her Notice of Appeal, an attack upon the review judgment. Thus, the substantive judgment of Employment Judge Postle has now been tested before Judge Richardson and upheld. The Claimant has sought permission to appeal to the Court of Appeal. The appeal against the review judgment was out of time and that too is over subject to an application as above to the Court of Appeal.

1. What then remain are the two letters, the subject of the application before me. I will divide them into three grounds. The first concerns the refusal by the Employment Judge to make corrections under the slip rule to the title and to the substance of the review judgment. The second concerns the Claimant's contention that it is inconsistent, anomalous and unlawful for there to be two judgments on the record in her case viz striking out her claim and refusing to vary it upon review. The third issue relates to an application by the Claimant for the Judge's notes. I will deal with these in turn.

1. The corrections

1. The Claimant accepts, indeed asserts that the decision made on 19 June 2008 contained in a document headed "Judgment and Reasons" is exactly that. That is the strike out. It was made on the papers. The Claimant raised objections which were dealt with by Judge Richardson, against her. But as a matter of form it remains the correct vehicle for the communication of the Judge's decision and is on the register.

1. The second judgment is, in my view, a judgment made at a hearing. Since there is no decision by the Judge to refuse the application for a review by the Claimant, it had by definition (see above) to go to a hearing. The record discloses the Claimant was there in person and the Respondent by its solicitor. It is described as "a hearing". It is for all purposes except its name the hearing of a review. It is often confusing to Employment Judges when they write their judgments, to describe how they uphold the original judgment. But as I have pointed out (see Rance), the correct finding is that on a review, under rule 35 and 36, the original judgment is confirmed, if that be the view of the Tribunal. It has a number of other options but that is the one relevant here.

1. The Claimant contends that littering this judgment are many solecisms but taking a realistic approach to today she focuses upon the word "pre-hearing" review (and in subsequent correspondence to me, the date of the strike out order). The others, she says, simply show the dismissive treatment by the Employment Judge of her case and inattention to detail.

1. In my view the Claimant is right about this aspect. She was right to ask for the judgment to be corrected to show that it was a judgment on a review, and that the Judge should have acceded to that request. It would have been easy and lawful for the Regional Employment Judge to have done so. It was a matter of discretion for him in respect of other matters of style and language. As I say, the Claimant takes no issue before me about those although those matters are in her grounds.

1. It is notable that all of my predecessors in this history have referred to this as the "review judgment", that is Judges Ansell, Clark and Richardson and the Registrar. It is expressly accepted by Regional Employment Judge Gay in her second letter. What is needed is some mechanism to give effect to all of those decisions. No issue was taken, by the Respondent, when it appeared in the proceedings to this language. It seems to have been content to go along with the depiction of this as a review judgment.

1. It seems to me that the Appeal Tribunal could do something about this. It has already in practice in each of the judicial citations above; but there remains on the record a judgment on what I hold to be a review and not a pre-hearing review. Strictly, this was a matter to be raised if the second Notice of Appeal had not been rejected as out of time, and so outside the scope of today's application, but I have allowed the Claimant to argue it here. Given the powers which I have set out above, in order to give effect and dispose of the appeals in this case, whether of the strike out or of the review judgments, or of this rule 3(10) application, it is open to me to direct the correction of the Employment Tribunal record to carry into effect the language of Judges Ansell, Clark and Richardson, the Registrar and Regional Employment Judge Gay which reflects my own view, supported by the authorities which I have set out.

1. I will therefore direct that the Employment Tribunal should correct the record to delete word "pre-hearing" from the record. It is plain that this was a bilateral hearing of the review. Quite why the Claimant prefers the record to show that her case was dismissed at a hearing where she gave evidence, as opposed to on a paper PHR, eludes me.

2. Two judgments

1. I turn then to the second issue which is the Claimant's contention that it is wrong and anomalous to have two judgments. Her associated complaint about the lack of reasons of Employment Judge Postle for declining to make corrections has already fallen away. The reasons given for the refusal of this ground are set out in the Regional Employment Judge's reasons on 31 March 2010. Although she had earlier said "this … correspondence must end", she says this:

"For the rest, even regional employment judges do not have control over the register and nor do regional employment judges have power to interfere in the decisions (judgements/reasons) of other employment judges. The Regional Employment Judge volunteers that the reserved judgment after the review hearing on 27 March 2009 is properly called a judgment. It is not a decision on the same matter as was previously determined, namely the strike-out, but on the review (albeit headed pre-hearing review) of the strike out."

1. As can be seen, Judge Reid QC adopted that approach. So do I. There is no illogicality about two determinations. As a matter of process, a striking out is, under the CPR, regarded as an interim judgment and see, for example, the approach to these matters in North Glamorgan NHS Trust v Ezsias [2007] IRLR 603. There is nothing wrong in calling the decision on the strike out a judgment.

1. What happened then was a review conducted at a bilateral hearing. The Claimant says material was adduced. It was the subject of detailed scrutiny by the Judge. It led to a judgment of 13 pages. So, the correct answer was the one given by the Regional Employment Judge. There is a judgment on the strike out and a judgment refusing to vary it after a review hearing. I therefore agree with her and with Judge Reid.

3. Notes

1. The third issue relates to the Judge's notes. Standing back from this for a moment, it must be asked what purpose this has. It is to do with the advancement of the Claimant's appeal against the review judgment. She is dissatisfied with these reasons. But as I have explained, Judge Clark dismissed her appeal as out of time. So, there is no appeal extant which will require examination of notes.

1. It seems to me that the Claimant's alternative approach, rejected by Judges Richardson and Clark, to let this material in by way of an amendment to the appeal against the strike out is also doomed for the same reason. So whatever notes there may be relate to an appeal which is not before the EAT.

1. As it happens, I disagree with the Regional Employment Judge as to the personal nature of the Judge's notes. The Claimant has rightly put before me Houston v Lightwater Farms Limited [1990] IRLR 502. A Judge is to take notes and to produce them if required on appeal. There is no appeal before the EAT and so logically no need for any Judge's notes. I appreciate the reference the Claimant makes to appeals under the CPR to the Court of Appeal, but I have to say that I have never seen the Court of Appeal call for notes of an Employment Tribunal hearing when they were not before the EAT. Of course, as she says, the EAT has power in a proper case to call for notes. Generally that step is taken only if an order is made requiring the collaboration of the parties to agree a note, if possible, and that has broken down. But, at the moment, there is no appeal and so notes are irrelevant.

1. In any event, the issue of the Judge's notes has been settled by the judgments respectively of Judges Ansell, Clark and Richardson. I take the view that seeking to revisit this issue is an abuse of process under rule 3(7). In as much as they are still contentious, they are matters for the Court of Appeal on the Claimant's instance and not for me.

1. In the light of those matters therefore, I come to the conclusion, which is almost the same as Judge Reid's that this application fails. I have considered whether it ought to be considered succeeding in part and sending part of it to a full hearing on the corrections point, but I have decided this matter can be dealt with proportionately in this administrative way. This order will take effect in seven days, so that if the Respondent objects to this method it may say so.

1. The Respondent did not object to my order correcting the record to show the "Review" in place of "Pre-hearing Review" and a corrected date. It felt it unnecessary to respond to my alternative invitation to consent to the appeal being allowed to that extent, as the order stood in the absence of any timeous objection. The reality is that this ground is academic. It is not expeditious to direct a full hearing of this point. The Regional Employment Judge accepted the point and could have corrected the register. Strictly, it was a matter for Judge Clark, but his language is expressly about "the review judgment" and I can give effect to it. The Respondent does not oppose this step.

1. The Claimant raises many other points in an application for corrections of my order under rule 33, the slip rule, and not I note by way of review or application for permission to appeal. Some were raised at the hearing.

1. I will not show that there was only one appeal. There was one Notice, attacking two decisions and the practice of the administration here is to allocate two appeal numbers. The practice relating to two decisions was set out in detail by Judge Richardson. This is not a matter of law for me. I will ensure the Registrar sees this Judgment, for this is a matter for her.

1. As to the distinction the Claimant seeks to draw between a request and an application under rule 3(10), this is misconceived. I explain the practice above. The expression of dissatisfaction by an appellant automatically leads to an oral hearing. It is apt to describe that expression as an application for such a hearing. The procedure in appellant-only hearings in the EAT was fully explained to the Claimant in Riniker v Wymark UKEAT.0061/03 by Judge Clark and members, rejecting her appeal as having no basis in fact or law.

1. Her approach to civil proceedings was held to be misconceived by Leggatt LJ in Reg v Lord Chanellor ex parte Riniker, drawing on the Claimant's graphic reliance on the White Rabbit, and quite misconceived by Robert Walker LJ in Riniker v J Glynn (Skips) [1998] EWCA Civ 462. Ward LJ, dismissing her application for permission to appeal in Riniker v UCL [2003] EWCA 1991 said she was the victim of her own mistaken view, and whatever he said would never be accepted by her. That is my view, too, now seven years on.

1. I will dismiss the Claimant's other applications to adjust the wording of EAT orders for the same reason as Morison P gave in Riniker v UCL UKEAT962/95: the parties are clear as to the result and adjustment is not necessary. These applications have no merit whatever.