Employment Cases Update

Whyte v The London Borough of Lewisham UKEAT/0256/12/RN

Appeal against the remedy judgment following a successful claim of unfair dismissal. Appeal allowed in part.

Employment Tribunal Remedies Handbook is the definitive guide to employment remedies and how to calculate them. £40

The claimant was held to have been unfairly dismissed. He appealed on three main issues: bias, miscalculation of the prescribed element within the recoupment procedure and a construction point on the redeployment scheme and its relationship to sick pay. The allegations of bias were withdrawn before being heard.

The EAT upheld the appeal on the recoupment issue – the ET had made an error in its calculations and failed to acknowledge a piece of evidence which was important to the claimant’s claim for compensation. The EAT dismissed the claimant’s contention that when he was designated as a corporate redeployee his entitlement under the sick pay scheme ceased and he was to be paid the full rate of pay as a corporate redeployee at the old rate of pay. 

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Appeal No. UKEAT/0256/12/RN

UKEAT/0257/12RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 22 August 2012

Before

HIS HONOUR JUDGE McMULLEN QC; MR T MOTTURE; MR R LYONS

WHYTE (APPELLANT)

THE LONDON BOROUGH OF LEWISHAM (RESPONDENT)

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

APPEARANCES

For the Appellant
MS E MISRA (of Counsel)

(Appearing under the Employment Law Appeal Advice Scheme)

SUMMARY

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

UNFAIR DISMISSAL – Compensation

Observations on the withdrawal of allegations of judicial bias.

One point on unfair dismissal compensation and arithmetic merits a full hearing. A pure construction point on the Redeployment Scheme and its relationship to sick pay was dismissed, although not dealt with by the Employment Tribunal, for it had no prospect of success.

HIS HONOUR JUDGE McMULLEN QC

Introduction

1. This is an appeal by the Claimant in those proceedings against a Judgment on remedy of an Employment Tribunal sitting at London South under the chairmanship of Employment Judge Taylor sent with reasons on 10 May 2011 and against what is effectively a decision by her to refuse the Claimant's application for a review, undated but received by the Tribunal on 5 April 2011, culminating in reasons sent on 20 May 2011.

2. As is implicit, the Claimant had succeeded in the claim he made, for on 28 September 2009 the same Tribunal decided that the Claimant was unfairly dismissed. The Respondent had failed to carry out the statutory dispute resolution procedure then in force. This followed a five-day hearing and the Claimant's case together with that of two others resulted in a Judgment of 23 pages.

3. The Claimant was dissatisfied with the Judgment in his favour, maintaining that his claim for automatic unfair dismissal by reason of his having made a protected disclosure ought to have succeeded and so he appealed. The appeal came before Wilkie J on the sift, who rejected it indicating that the Claimant in minutely detailed grounds of appeal was simply arguing questions of fact. The Claimant was dissatisfied with the opinion of the Judge and sought to raise a hearing under rule 3 but he was out of time and the Registrar refused to exercise her discretion to extend time.

4. The Claimant was dissatisfied with the Judgment of the Registrar and so he exercised his right of appeal and the case came before HHJ Hand QC on 7 May 2010. The Claimant secured representation, he having effectively represented himself and taken on the representation of his fellow claimants for most of the liability hearing, although he did at one stage have a representative. Judge Hand heard the representations and those of Mr Tom Brown of counsel who had appeared throughout for the Respondent, and he too, at a fresh hearing, refused to exercise discretion to extend time to allow the Claimant to proceed beyond the rule 3(7) decision.

5. That is an explanation for the long delay between the liability and the remedy hearings attributable as is clear from Employment Judge Taylor's reasoning to the Claimant's unsuccessful challenge to the decision and his own failure to meet the time limits in the EAT. The Claimant then appealed against the remedy judgment at which an award of compensation of £5,404.63 had been made to him, which after allowing for recoupment inured into a payment made by the Respondent of £2,140.42 with a prescribed element of £3,264.21.

Bias

6. The Claimant contended that Employment Judge Taylor had been biased against him and so when the papers came before me on the sift, I pointed out that if he were right about the bias of the Judge it would be likely that the whole of the proceedings would be set aside; this is because I have never seen a challenge on the grounds of bias or apparent bias to a part of the proceedings conducted by a Judge. He would start again on his unfair dismissal claim.

7. The Claimant pressed on, he swore an affidavit on my directions; the Judge was invited to comment upon it, as were the lay members. The Judge commented on 6 February 2012 in a letter of 6-pages. The lay members also gave their comments.

8. Today the Claimant has the advantage to be represented by Ms Eleena Misra of counsel giving her services under the ELAA Scheme. Having taken express instructions, the allegation of bias by the Judge is withdrawn. Allegations made against judicial officers are now becoming more frequent. Rimer J in Shodeke v Hill [2004] UKEAT 6 May 2004 0394/00/0605 said (in a case concerning a lay advocate but it applies even more in the case of professional advocates):

"83 […] It is the familiar experience of anyone who has had to deal (whether as a judge or advocate) with cases presented by litigants in person that such litigants often focus on the irrelevant rather than the relevant, shroud in some obscurity the points they are making and seek to introduce new matters which have not been foreshadowed. These features of lay advocacy necessarily require the Tribunal to make interventions with a view to keeping the case on some sort of a track, quite apart from the need for interventions directed simply at ascertaining what it is the litigant is trying to say. Similarly, with a view to the proper protection of their clients' interests, the opposing advocates will also quite reasonably find it necessary to intervene – or interrupt – in order to achieve similar clarification. Further, if those advocates are of the view that the litigant is endeavouring to adduce material which is irrelevant or ought otherwise to be excluded, it is not only their right but their duty to object to it. The regularity in which it is necessary for such interventions to be made will vary according to the skills of the particular litigant."

9. In Roberts v Carling UKEAT/0183/09/DA I set out my approach in this way:

"9. Allegations of bias were noted by Rimer J in London Borough of Hackney v Sagnia [2005] UKEAT/0600/03 to be on the increase. On behalf of the EAT he said this:

'… Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased. Our experience is that bias allegations based on complaints that the employment tribunal approached the appellant's case with a closed mind, having already pre-determined the matter against the appellant, have a low success rate. This is for the obvious reason that a tribunal cannot form a concluded view on the issues until it has heard all the evidence and the argument and so it will be a rare case in which a tribunal will at any earlier stage make any utterances which either side can rationally regard as the outward expression of some pre-judgment of the case.'

10. Five years later, and now from the much broader standpoint of the Court of Appeal, Rimer LJ in Bascetta and Another v Abbey National Plc [2009] EWCA Civ 840 returned to this matter in paragraph 11 where he said this:

'In my own experience of appeals to the Appeal Tribunal, ... vexatious allegations of bias are frequently raised by losing litigants before employment tribunals.'

11. It is because of that growing tendency that the standard direction is modelled upon a passage in the Practice Direction paragraph 11. A bespoke approach is to be taken to such allegations and unique among the orders made it carries with it the warning of costs being awarded if the allegation is unsuccessful. PD11 is itself based upon a judgment of Lindsay P and Members in Facey v Midas Retail Security and Another [2000] ICR 287 which first set out the procedure in preparation for, and then at the hearing of, allegations of bias against an employment tribunal.

12. The reason why successive Presidents Lindsay, Burton, Elias and Underhill JJ have retained that approach in the Practice Directions they have issued is clear. Employment judges and lay members are now required to take the judicial oath. Behaving unfairly towards a party is contrary to that oath. Such allegations are serious and are required by the Practice Direction to be supported by particulars of the allegation and sworn evidence by the party making them, upon which they can be cross-examined and written statements as appropriate by their representatives. This in turn may trigger a request to the employment judge and lay members for their comments, and a right for to the Respondent to submit evidence."

10. These were serious personal allegations about the conduct of a very experienced Regional Employment Judge as to her conduct. They are wholly illogical, given the Employment Tribunal found in his favour, and went on to award compensation which is not challenged save as below. There is no criticism of the lay members who, it must be inferred on the Claimant's account, sat idly by while the abuse which he swears to took place in front of them. It is unnecessary for us to go further in this case. The allegations of bias, apparent bias and procedural unfairness are dismissed on withdrawal by the Claimant. There is no substance in them whatsoever and it is most unfair that these allegations were made, that the three judicial officers, at public expense, have been put to the trouble of responding to them, and that they are withdrawn without explanation or apology at this hearing.

11. Had the Respondent been put to costs, it would no doubt have sought its costs with some prospect of success.

Compensation and benefits

12. That leaves two points; we have decided one should go to a full hearing and the other not. The one going to a full hearing is to do with the benefits. As is apparent from the figures above some £3,000 or so was attributed to the Claimant's receipt of benefits. Doing the best we can on the material which is available to us at the moment, it would appear that the Respondent had operated on the basis that the Claimant was in receipt of either Incapacity Benefit or, as the Tribunal found, Jobseeker's Allowance.

13. In representations he made to the Respondent by email in advance of the remedy hearing, he produced a schedule of loss. With the help of Ms Misra it is, we hold, more likely than not that the schedule of loss which appears at page 224, 225 and 226 of our bundle is what was produced. The document includes Incapacity Benefits during the index period of only one month; this is 31 May 2008, and the period awarded by the Tribunal which was to end on 29 June 2008. That document was included, we think mostly likely in the Respondent's bundle of documents. The Respondent was to produce the bundle and in its index there is space at what is said to be pages 50 to 52 for a 3-page document. The Claimant produced a bundle of documents which is accompanied by an index which makes no reference to a schedule and so we consider it most likely that it, is as Ms Misra helped us to come to the conclusion, these 3 pages.

14. The figure produced by the Employment Tribunal is based upon a combination of the operation of the Respondent's sick pay scheme which operates for 26 weeks at full pay and 26 weeks at half pay and the finding that the Claimant was in receipt of Jobseeker's Allowance and Income Support and so the combination of those two features brought about the figure which it found. The Claimant was given the opportunity to make any further submission in respect of the figures because as the Judge acknowledged in her response to the EAT's orders, time was short at the end of the day and if there were any slips they could be dealt with by the Claimant submitting further material.

15. What he did was to send a document seeking what we hold to be a review and what the Judge treated as being a review. It is undated, but the Judge attributed it to 5 April 2011: the Claimant says that he presented a schedule of loss to the Respondent. That is likely to be the three pages we have cited, and his total claim to the DWP was £211.25. The document supporting that figure is likely to have been put before the Employment Tribunal and appears at page 53 of our bundle, and in it there is indeed a record of only two payments of benefit of respectively £92.95 and £110.38, although the figures are very indistinct. Broadly speaking, that document supports the Claimant's contention in his review application that the only benefits he had claimed were £211.00. If that is the case, the Tribunal has arguably made an error in its calculations and failed to acknowledge a piece of evidence which is important to the Claimant's claim for compensation. This matter will go to a full hearing.

The redeployment scheme

16. The second matter relates to the Claimant's contention of payment due under the Redeployment Scheme. He initially contended the Tribunal had ignored the Redeployment Scheme but we pointed out to Ms Misra that it is mentioned five times expressly in the remedy Judgment and ten times in the liability Judgment. That contention is utterly hopeless.

17. The real issue is what does it mean? It says as follows:

"As a corporate redeployee you will continue to receive the rate of pay relevant to your former post until you are placed into a new post, either temporarily or permanently when you will receive the rate of pay applicable to the post concerned. If this redeployment is to a lower graded post then you will be paid on the maximum incremental point on the lower scale."

The Claimant in his written submission contended that this meant that it overset the payment to sick pay. He was being paid in accordance with medical certificates attesting to his unfitness to work from about 5 October 2007. At that stage he had been dismissed for gross misconduct, as fully recorded in the liability Judgment, but had won his appeal and was reinstated. Then he was diagnosed with depression and was off sick.

18. It is contended that when he was designated as a corporate redeployee on 3 December 2007 his entitlement under the sick pay scheme ceased and he was to be paid the full rate of pay as a corporate redeployee at the old rate of pay. As the Claimant says, that argument did not flourish in the Employment Tribunal, there is no mention of it. It appears to us to be a matter of construction; Ms Misra says it is equivocal but she acknowledges that one construction of it is that the relevant rate of pay is that with all the terms and conditions attached to the substantive post prior to the corporate redeployment.

19. If that is so, the conditions relating to sick pay go with it. Although she has identified a question, we consider it has no chance of success at a full hearing. It is as though being designated as a corporate employee trumps all other conditions. Even if the Tribunal did not expressly descend into this issue we hold that there is no reasonable prospect of it being argued successfully that that is the effect of the redeployment policy.

20. In Ms Misra's submissions, all she had to deploy by way of argument was her client's assertion that it is absolute, in our judgment that cannot be right; the redeployment scheme operates within the context of all the other terms and conditions of employment and so a case on this ground of appeal stands no reasonable prospect of success and will be taken no further.