In the Employment Tribunals, if the reasons are sent to the wrong person, does time for lodging an appeal still run?

“Yes”, said the Court of Appeal in Rana v (1) London Borough of Ealing (2) Stephen Antoine [2018] EWCA Civ 2074.

In Rana (which is two joined appeals – “Rana” and “Bonnie”) the appellants appealed against decisions of HHJ Eady QC in the Employment Appeal Tribunal. She had refused permission to extend time for lodging an appeal against a decision of the ET. Under the relevant rules, time runs from when the ET’s judgment and/or the written reasons are “sent to the parties”. But, in the cases in question, the reasons had been sent to the wrong person. The question was whether they were nonetheless “sent to the parties”. The critical issue, thought the EAT, was “sending”; the reasons had been “sent”, and that was enough to fix the date, with the result that the appeals were substantially out of time.

You can see how that is an unhappy result. It gives the result that it simply doesn’t matter whether the reasons are sent out to anything approaching the correct parties. If the reasons are sent out to an address in Lapland, where the Respondent and Appellant both live in South Wales, then that would be enough to start time running on the appeals.

Despite that issue, Underhill LJ in Rana thought that (para 36):

“. . . there is an obvious practical advantage in having a single, contemporaneously recorded, date from which time for appealing runs for both parties, so that everyone knows where they stand from the moment that the judgment is promulgated; and I think it very likely that that is what the rule-maker intended.” 

The obvious risk is that a party would end up being out of time to appeal a decision of which they had not been formally informed. To that, Underhill LJ thought that the problem could be fixed by appropriate use of the EATs discretion to extend time. The relevant principles are set out at para 42-45 of the judgment. In summary:

  • The guiding principle should be that the party affected by the Tribunal’s mistake (as regards a matter of fundamental importance) should not be put in a worse position than if it had done its job properly.
  • But, if a victim receives a copy of the judgment first, or instead, from the other party, rather than from the Tribunal, they will be in substantially the same position as if the judgment had been properly sent by the tribunal – subject to some caveats. If the covering letter is missing, then the victim will not have been given information on how to appeal. 
  • Further, if the victim is somehow on notice of what has happened (for instance, the victim becomes aware that the other side has received a copy of the judgment), it is incumbent on them to take reasonable steps promptly to obtain a copy – and if they fail to do so then it would not be right for an extension to be granted which would put them in a better position than had they acted with reasonable despatch.

So in Bonnie, Underhill LJ thought that time had started to run, but that the EAT should have exercised its discretion to allow the Appellant an extension to the date that the appeal was filed, largely because she had written “promptly and persistently” to the tribunal to ask for the judgment. The appellant in Rana received a similar treatment: Underhill LJ said that the EAT should have extended time.

McCombe LJ agreed with the result but disagreed with the reasoning. He thought that the words requiring the judgment and written reasons to be “sent to the parties” were clear. They were not satisfied by sending the judgment and reasons to only one of the parties. On a plain language view, the appeals should be allowed.

Bean LJ agreed with the result but adopted the reasoning of Underhill LJ. He noted that the literal construction accepted by McCombe LJ had “the attraction of clarity and simplicity, and of conforming to the natural meaning of the words . . . [but was not] the result which the draftsman . . . was seeking to achieve”.

A moral, perhaps, is that if you are awaiting judgment, it is worth keeping in touch with the other side – and perhaps checking with the Tribunal office, if appropriate.

Can the Employment Tribunal limit the number of discrimination claims to be determined at any one hearing?

Can the Employment Tribunal limit the number of discrimination claims to be determined at any one hearing?

“Only with great caution”, said the Employment Appeal Tribunal in Tarn v Hughes (and ors) UKEAT/0064/18/DM – and the EAT then went on to give some helpful guidance on case management of discrimination claims.

In Tarn, a claimant GP had brought a large number of complaints of discrimination against her (former) partner GPs.

At the case management stage, the ET had required the claimant to select:

the most recent and serious 10 (maximum) events relied upon as giving rise to the above complaints and on which the Tribunal is required to make findings of fact and determinations

The order went on to state that the claimant was not precluded from relying on the other allegations as background and/or context, or pursuing them at a later hearing.

The underlying claim contained some 31 factual allegations. That, commented the Tribunal, would require it to make 180 separate findings (i.e. for each act, whether it happened, whether it was less favourable treatment, and whether it was because of the protected characteristic).

Although the appeal was pursued on a number of grounds, the crux of the matter is set out at para 25 of Tarn. In particular, HHJ Eady QC commented that

. . . of its nature, a discrimination claim is likely to require an ET to draw inferences from the evidence and from its primary findings of fact; to adopt a fragmented approach to the issues may “have the effect of diminishing any eloquence that the cumulative effects might have [on the determination of causation” (see per Mummery J (as he then was) in Qureshi at page 875H)

The judgment goes on to discuss guidance as to the possibility of selecting sample allegations in discrimination cases drawn from Hendricks and HSBC Asia Holdings BV and another v Gillespie UKEAT/0417/10, before giving a summary at para 28. I won’t reprise the paragraph in its entirety but the essence is this:

  1. The ET has a broad discretion to manage cases justly.
  2. In discrimination claims, the starting point is to identify precisely what claims are made and on what basis (and a list of issues will help).
  3. There will be some cases which are apt for striking out. However, it is not otherwise open to the ET to limit the claims a complainant can pursue – that would be to restrict her access to justice and to potentially deny an effective remedy in a case of unlawful discrimination.
  4. The ET could, in an appropriate case, separate out a sample of complaints or issues to be heard in advance of the remaining allegations.
  5. But that does not mean that such a course should be adopted, “save in those cases where it is clear this would not endanger the just determination of the case – something that might be difficult for the ET to assess at a preliminary stage”.
  6. It is often necessary, in discrimination claims, to look at the whole picture before looking at whether there has been unlawful discrimination in respect of a particular allegation. Asking a claimant to select his or her ten best points may often be inconsistent with the just determination of the claim(s).
  7. Moreover, separate determination of selected allegations or issues may not be the proportionate course in a particular case.

As to the appeal in Tarn itself, the EAT thought that the ET had failed to have regard to critical factors – for instance, given the list of issues, it was clear that much of the evidence given on one issue would inevitably address other factual issues at the same time. The Claimant had been placed in the (potentially) unfair position of having to choose between either continuing to assert her right to pursue all of her claims, or simply relying on them as context for the others. The appeal was therefore allowed.

I think this case is interesting not because of the particular disposal, but because of the general treatment of case management and discrimination claims. That inevitably has an impact on how practitioners should present discrimination claims. There is, very often, a tension between choosing the strongest allegations, thereby providing focus, and choosing a large number of allegations, thereby providing context – assisting the Tribunal to draw crucial inferences from the evidence. I suspect it is now less likely that breadth will be “managed out” at a preliminary hearing.

Illegality as a defence in the Employment Tribunals: the case of Okedina v Chikale

In the recent decision in Okedina v Chikale UKEAT/0152/17/RN the EAT (HHJ Eady QC) considered the question of when a Claimant’s contract of employment would be said to be illegal by virtue of the operation of immigration law.

The case contains a useful rehearsal of the relevant legal principles (para 35 – 41 of the decision).

At first instance, the ET had found that the Respondent had arranged for the Claimant (a Malawian national) to travel to the UK to work directly for the Respondent as a domestic worker. In November 2013 the Respondent made an application for an EEA family permit for the Claimant, providing false information with the intention of regularizing the Claimant’s position in the UK. The Claimant relied on the Respondent to take care of her visa situation.

The ET found that there was nothing inherently unlawful about the contract of employment, but that the contract had been illegally performed after 29 November 2013. However, the Claimant had not knowingly participated in that illegality.

The Respondent contended (throughout) that the contract of employment was prohibited by immigration legislation and therefore void from the outset.

The EAT in Okedina referred back to the guidance given in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 (CA). It agreed with the decision at first instance, that this was a case which did not fall within the second category in Hall (i.e. where the contract itself is prohibited); and the ET had found that the Claimant had not knowingly engaged in any illegal performance of the contract, and so was not complicit in any subsequent illegality.

Discussion

The Court’s approach to illegality has developed substantially since Tinsley v Milligan [1994] 1 AC 340.

In Hall v Woolston Hall Leisure Ltd [2001] ICR 99 (CA), the Court set out three categories of illegality: one, where the contract is entered into with the intention of committing an illegal act; second, where the contract is expressly or implicitly prohibited by statute; and third, where a contract, lawful when made, is illegally performed and the party knowingly participated in that illegal performance.

Similarly, the decision in Enfield Technical Services v Payne [2008] IRLR 500 (in the Court of Appeal) cited the decision below (in the EAT) with approval, stating:

[25] In his judgment, Elias J analysed [the authorities] in some detail. I agree with his analysis and with the statement, at paragraph 43:

“In our judgment the essential feature of all the cases where there has been found to be illegality is that the parties have knowingly entered into arrangements which have to their knowledge represented the facts of the employment relationship to be other than that they really were.”

I have already cited the general conclusion of the EAT at their paragraph 46. I agree with their further statement, at paragraph 49 that, while the decision in Daymond was correct, the width of Underhill J’s remarks at paragraph 12, cited at paragraph 18 above, was too broad. Elias J stated:

“We do not consider that the authorities, or Salvesen, support the proposition that if the arrangements have the effect of depriving the Revenue of tax to which they were in law entitled then this renders the contract unlawful. For reasons we have given, in our judgment there must be some form of misrepresentation, some attempt to conceal the true facts of the relationship, before the contract is rendered illegal for the purposes of a doctrine rooted in public policy.”

 

In Allen v Hounga [2014] UKSC 47, [2014] 1 WLR 2889 the Supreme Court considered illegality as a defence to a claim in tort – although the approach to this varied between justices. So, for instance:

“[t]he public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront . . .” (para 52, per Lord Wilson)

and

 “[t]he various analyses offered in past cases are largely . . . different ways of expressing two connected aspects of the basis for the law of illegality. The first is that the law must act consistently; it cannot give with one hand what it takes away with another, nor condone when facing right what it condemns when facing left. The second is that before this principle operates to bar a civil claim, and particularly one in tort, there must be a sufficiently close connection between the illegality and the claim made. Neither proposition is suggested as a comprehensive test. En route to the answer in an individual case, the court is likely to need to consider also the gravity of the illegality of which the claimant is guilty and her knowledge or intention in relation to it. It will no doubt also consider the purpose of the law which has been infringed and the extent to which to allow a civil claim nevertheless to proceed will be inconsistent with that purpose. Other factors may arise . . .” (para 53, per Lord Hughes)

The approach in Hounga was elaborated on in Patel v Mirza [2016] UKSC 42 (para 101 per Lord Toulson)

“ . . . one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition that has been transgressed; b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy . . .”

Okedina is a useful illustration of how these factors interrelate. Patel represents a softening of the approach, in a way which (I anticipate) assists Claimants, because of the relevance of proportionality.

An argument which is frequently run in the Tribunals is that the employment contract is illegal on the basis that it defrauds the revenue. So, for instance (the following cases are ET decisions and so, of course, only illustrative):

In Haseldine v (1) Winterton (2) Academy 4 Dogs Ltd (3) Happy Hounds Dog Grooming School Ltd (C-2401434/17) the ET considered that wages were being hidden behind the pretense of unpaid work, and that the claimant was an active participant in the scheme; that was sufficient to yield an illegality defence.

A similar argument failed in Wilcox v Diamond Contracts Ltd (C-1800972/2017) in which the Respondent failed to prove that the arrangement was for the purposes of defrauding the Revenue, or that the performance of the contract was done in a way that had that effect (as in Colen v Cebrian (UK) Ltd [2004] ICR 568).

Likewise in Adair v (1) Concept Barbers Ltd (2) Conway Men’s Hairdressing Ltd (S/4100522/2017), where there had been illegal payments made in respect of the claimant’s wages in order to avoid income tax and NI contributions payable on her behalf. Critical in that decision was the fact that the Claimant did not wish for the financial advantage and did not wish to be party to an illegal arrangement; and the sums involved represented a small proportion (some 20 – 11%) of her total pay; she was an unwilling participant; and, although the case prior to Patel v Mirza would have been “on the margin”, the introduction of a further consideration of proportionality led the judge to the conclusion that he had jurisdiction: it would be “disproportionate to bar the Claimant’s access to her statutory and contractual rights entirely . . .”. And the fact that the First Respondent was the beneficiary of the arrangement counted against denying the Claimant a remedy by reason of illegality.

It is interesting to note that, despite the recent developments (at the level of the Supreme Court, to boot) on the subject of illegality, Hall remains a touchstone.

 

 

EZRA MACDONALD

When can one person charge another for looking after goods? On bailment and the right to reimbursement (and cows)

In Tongue v (1) RSPCA (2) Heasalgrave (Trustee in bankruptcy of the Applicant) [2017] EWHC 2508 (Ch), the Court considered the question of when a relationship of bailment arises, and whether (and how) it gives rise to a right to reimbursement for looking after the bailed goods – in Tongue’s case, the goods were cattle.

Tongue is a rather sad case, involving Mr Tongue, his father, and brother; wherein the RSPCA had intervened to deal with cattle owned by Mr Tongue; they were first looked after by the RPCA, then moved from his farm to a holding owned by Trading Standards. The cows had been left in poor conditions. Criminal charges followed, and then convictions; and later a sentence of imprisonment for breaches of the disqualification element of the sentences (in the case of Mr Tongue’s father, that sentence was suspended). In 2013, Mr Tongue was adjudged bankrupt. The RSPCA brought proceedings claiming that, as bailee of the animals, it was entitled to recover expenses incurred in looking after the animals.

Newey LJ in the High Court provides a very helpful summary of the law of bailment at para 71 & seq. Mr Tongue had agreed to let the RSPCA “enter land at Emmadale to care for (f[ood]/w[ater]/vet) [the cattle]” – but that did not give rise to a bailment. Primarily – see para 74 of the judgment – the agreement was not apt to confer possession. Secondly – and this is rather fact-specific:

. . . Assuming that [the seizure of the cattle] was valid, the police must at that point have become bailees of the cattle (compare Sutcliffe v Chief Constable of West Yorkshire) and, having had them placed in its care, the RSPCA would in turn seem to have become a bailee for the police and held the cattle to their order. The consent that Mr Tongue gave later that day will have given the RSPCA due authority to go onto Emmadale Farm (though it was in fact already there), but it is hard to see that it can otherwise have changed much. The RSPCA will surely have continued to hold the cattle as a bailee for, and to the order of, the police. Mr Tongue had no power to release the RSPCA from its obligations to the police.

So the short point, in relation to bailment, is this: one does not become a bailee of goods simply by being permitted to enter onto an individual’s land and deal with those goods; similarly, a bailee generally cannot dispute a bailor’s title to goods.

 

What does a claimant need to do to serve a claim form “during its period of validity”?

In Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270 (QB) Master McCloud considered the issue of what a claimant needs to do in order to serve a claim form during its period of validity. The Claimant in Jones had brought a claim which, by reasons of limitation, had to be served by 1 November 2016. She applied for an extension of time; this was granted by Master Fontaine, by an order which stated that “[t]he date for service of the Claim Form is extended to 17th January 2017”. The claim form was emailed at 4.27pm on 17 January 2017, and a hard copy placed in the DX; the hard copy was received on 18 January. The Defendant had not accepted a willingness to accept service by email.

The Claimant pointed out that CPR r 7.5 simply requires the Claimant to “complete the step required [in the relevant table] before 12.00 midnight on the calendar day four months after the issue of the claim form.” This “relevant step”, for DX and/or first class post, was “[p]osting, leaving with, delivering to or collection by the relevant service provider”.

The Defendant’s argument was that the Order of Master Fontaine said nothing about CPR r 7.5; the effect of the Order was to require that the claim form be served by 17 January; CPR r 6.14 provides for “deemed service”, which is the second business day after completion of the “relevant step”. So for service on 17 January, the document would need ot be placed in the DX by midnight on 13 January.

The judgment itself contains a helpful review of the authorities in this area; the Court takes a purposive approach, and then finds as follows at [38]:

    1. In my judgment:

(1) the correct approach when determining whether, for the purpose of answering the question “was the claim form served during its period of validity?” is to ascertain whether the Claimant has carried out the step required by rule 7.5 within the time provided for doing so. That would apply equally to cases where time for service has been extended by order (as here) and to cases where the basic 4 or 6 month period of validity applies; and

(2) as to the purpose of the ‘deemed date’ provisions in rule 6.14 those have to be given an interpretation which gives them a meaningful function and in my judgment the deeming provisions operate as a means to ensure that it is clear to the parties what date is to be used for the purpose of calculating such things as the date for service of acknowledgement of service or defence.

. . . . and that, I think, is a helpful clarification. What a Claimant needs to do, within the four-month validity period, is to take the “relevant step”. The issue of “deemed service” is a separate issue, and is relevant to calculating dates which come after service of the claim form.

Failure to attend the trial

When a litigant in person fails to attend a trial for medical reasons, will he/she be able to fall back on CPR r 39.3(2)?

The relevant principles are set out in Emojevbe v Secretary of State for Transport[2017] EWCA Civ 934 (link to BAILII here). In Emojevbe (which began in the Central London County Court) the appellant had applied for an adjournment two days before trial, citing an injured knee. That application was refused; the appellant subsequently failed to attend trial and summary judgment was granted. He applied to set this aside under CPR r 39.3(2)

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

It is now well-established that CPR r 39.3 and Part 52 (Appeals) overlap: even if an application under r 39.3 fails, that does not prevent an applicant seeking permission to appeal the order,  and indeed there is some judicial guidance suggesting that a person in that position should do both: see Bank of Scotland plc v Pereira and others (“Pereira”) [2011] EWCA Civ 241 per Lord Neuberger at [24].

In Emojevbe, the trial judge focussed on whether the appellant had a good reason for not attending the trial. He took the view that if the evidence showed that he appellant was “simply unable physically to attend court”, then that would amount to good reason. But Dr Emojevbe had only supplied a “fit note” indicating that he was unfit for work. That, he thought, did not amount to “good reason”.

However, the Court of Appeal took the view that the trial judge had fallen into error, because (para 32):

“. . . his focus and analysis rested wholly on whether the appellant was physically capable of attending court on the day of the trial. In doing so the judge, in my judgment, failed to examine all the evidence relevant to the non-attendance of the appellant. In considering the totality of the evidence the following matters were relevant:

i) There was no history of the appellant either failing to attend court or seeking adjournments;

ii) The illness was genuine; the further medical evidence which had become available before the judge, and which had not been before HHJ Carr, showed that later in the year with which we are concerned surgery to the knee became necessary and the appellant was signed off work for a number of months;

iii) The appellant was in pain. Whilst the emphasis was undoubtedly on the issue of mobility in terms of the appellant’s ability physically to attend court, no consideration was given as to whether the appellant would be put to an unfair disadvantage and be less able to put forward his case on his own behalf whilst in pain from his injured knee. The extent to which his medical condition might impede his ability to conduct the litigation in person is a factual matter which should be taken into account;

iv) The appellant was the claimant and the reality was that if the application under CPR 39.3(3) failed then at no stage would the merits of the case have been considered by a court;

v) The judge had found the third limb, ‘reasonable prospect of success at trial’ to have been satisfied.

The appeal was therefore allowed, notwithstanding the usual disclaimers that appellate courts should be slow to interfere with a decision of a lower court on such questions; that evidence offered in support of an application to adjourn should be scrutinised; that a pro-forma fit note, without more, may be insufficient to found either an adjournment application or a r 39.3 application; and that the fact that someone is a litigant in person is not in itself a reason for applying a test other than that which applies to a represented litigant (all from para 31 of the decision in Emovjevbe).

The moral of the tale is that when dealing with adjournment applications on medical grounds (or subsequent applications under r 39.3) it is worth taking a broad view, and not merely focussing on the medical evidence. That having been said, the medical evidence is likely to be fundamental; and a “fit note” by itself, as the Court in Emovjebe noted, may well be insufficient.

No mercy for missed deadlines

In the fairly-recent case of Lakhani and anor v Mahmud [2017] EWHC 1713 (available via BAILII here), the freeholders of land in a London suburb had brought an action seeking an injunction. They wanted the defendants to restore car parking spaces to a condition in which they were available to the claimants.

As part of case management, D J Jackson made an order requiring the parties to file and serve updated costs budgets 21 days before the CCMC. The claimants served their costs budget on time. The defendants served theirs one day later – and, unfortunately, one day too late. Nonetheless, the parties’ solicitors carried on with the process of commenting on one another’s proposals.

At the CCMC, the court heard the defendants’ application for relief from sanctions. It did not succeed, and they appealed this decision.

In the High Court, Daniel Alexander QC noted that

[t]he application for relief from sanctions was not advanced in a manner calculated to optimise the chances of success . . . it was made at the last minute before the hearing . . . the circumstances in which the application was made and the late service of evidence precluded the claimants form serving evidence in response . . . [t]hird, the 45 minute hearing . . . was turned into a 1/2 day hearing, dominated by the issue of relief from sanctions. Fourth, the late service . . . and the consequential dispute . . . had potential to disrupt agreement over costs budgets.

The appellate decision then goes on to deal with the first instance decision in some detail. It is potentially helpful for anyone faced with a relief-from-sanctions application (although there is, of course, higher authority). The High Court in Lahkhani upheld the first instance decision; it was a decision “open to [the judge] in the exercise of his discretion and is of a kind which the Court of Appeal has recommended should normally be upheld”, although it was (para 59)

“perhaps, on the tougher end of the spectrum as to substance and the leaner end of the spectrum as to analysis. But the defendants have not been deprived of a trial altogether. Had that been the consequence, the situation would have merited more detailed scrutiny than the judge gave it . . .”

 

Nothing new here, some might say, but is a salutory reminder of the strict approach which the Court will often take, and of the uphill struggle with which any appeal against a case management decision will be faced.