O'Cathail v Transport for London

LORD JUSTICE CHRISTOPHER CLARKE: This is an application to appeal from a decision of Mr Recorder Luba QC, sitting in the Employment Appeal Tribunal in respect of the applicant's application pursuant to rule 3(10) of the Employment Appeal Tribunal Rules 1993, that decision being given on 29th August 2014.

The application is but a small part of an ongoing dispute in which both parties have appealed judgments and case management decisions up to the Court of Appeal. The applicant was employed by the respondent, Transport for London, on a temporary basis from December 2005 and became a permanent employee on 1st June 2007. On 4th January 2008 he went on sick leave which proved to be long term. He did not return to work prior to his dismissal on 23rd December 2010, his dismissal being, as I understand it, on the ground that there was no position for him to return to and no alternative role available. It is common ground that the applicant was at all material times a disabled person for the purposes of the Disability and Discrimination Act 1995 by reason of anxiety and depression.

Since his dismissal the applicant has lodged seven claims in the Employment Tribunal against the respondent. He was partially successful in claim No 1 which was heard by an Employment Tribunal in November 2009. His claims under claim No 2 were dismissed following a hearing which the applicant did not attend on account of an illness. He appealed successfully to the Employment Appeal Tribunal against the decision of the Employment Tribunal but the Employment Appeal Tribunal's decision to remit the case back to the Employment Tribunal was set aside by the Court of Appeal.

Claims 3, 4 and 5 are about what is said to be the ongoing discrimination of the applicant by the respondent, the applicant's dismissal and his appeal following his dismissal. Those three claims were consolidated at some point before a pre-hearing review before Employment Judge Hodgson took place on 12th March 2012. Claim No 6 concerns primarily the conclusion of the appeal post dismissal and also the respondent's subsequent refusal to consider job applications from the applicant. Claim No 7 relates to the respondent's refusal to consider one or more job applications from the applicant.

At the pre-hearing review on 12th March 2012 and the subsequent case management discussion on 23rd March 2012 Employment Judge Hodgson was asked by the applicant, amongst other things, to consolidate claims 3 to 7, to order disclosure of non-privileged documents by the respondent and to rule that specific documents in the respondent's possession were not privileged. Employment Judge Hodgson ordered consolidation of what he called "the termination claims" namely claims 2, 3, 4, 5 and 6, save for the aspects of claim 6 that concerned job applications. He ordered what he called "the new claims" namely claim 6 in so far as it concerned job applications and claim 7 to be tried separately following the determination of the termination claims. He considered that hearing all the claims together would lead to unnecessary complexity and confusion. He made no order for specific disclosure and left the issue of privilege to the full Employment Tribunal which would hear the claims. The privilege issue arose because, so it appears or so the respondent claimed, they had accidentally produced copies of documents which included privileged material.

The applicant appealed the pre-hearing review and the case management discussion decisions on the issues of consolidation, disclosure and privilege. In May 2013 the applicant's application to the Employment Appeal Tribunal first came before Mr Recorder Luba under rule 3(10) of the EAT rules following a decision of Judge Peter Clark that the appeal contained no reasonable grounds. Mr Recorder Luba adjourned that application and sent two questions to Employment Judge Hodgson about disclosure and consolidation. He replied in August 2013. The rule 3(10) application was then re-listed and eventually heard on 29th August 2014, having previously been adjourned in January 2014 at the applicant's request. Following oral submissions by the applicant Mr Recorder Luba allowed the privilege issue to go to a full hearing, but he dismissed the application on consolidation and the application for specific disclosure. He considered that the Employment Judge had exercised his discretion properly in refusing to consolidate the claims. As for disclosure, it was still open to the applicant to make a clear application for disclosure by setting out all the documents he required, a course which he had not previously taken before the Employment Tribunal.

The applicant has filed before me lengthy grounds of appeal and an even lengthier skeleton argument extending to 34 pages and 143 paragraphs which has then been supplemented by a further lengthy statement of 113 paragraphs following the refusal of permission to appeal on paper by Lewison LJ.

In his grounds of appeal the applicant argues that the test for second appeals is met. He contends that his appeal raises important points of principles or practice in connection with Article 6 of the European Convention on Human Rights and that, in the alternative, guidance is needed on the law and practice relating to consolidation and that that is a compelling reason to hear the appeal. This application does not in fact concern a second appeal within the meaning of CPR 52.13, so the applicant only needs to satisfy the test for first appeals.

Reduced to bare essentials the applicant makes a number of submissions. Firstly, he submits that Mr Recorder Luba erred in law by using the Burns/Barke Procedure to obtain clarification from Employment Judge Hodgson. He erred, so it is said, because the Employment Tribunal judge no longer had the proceedings fresh in his mind after 14 months and used the opportunity, so it is said, to advance arguments in defence of his decision making. Secondly, it is said that Mr Recorder Luba acted unreasonably and irrationally in holding that the Employment Judge did not err in law by refusing to consolidate all the claims. The Employment Judge, it is said, did not take into account relevant factors and in particular the applicant's Article 6 rights and took into account irrelevant factors including whether or not the same personnel from the respondent were involved in the decision making both prior to and after dismissal, it being the respondent's contention that the personnel were different, when refusing to consolidate. Thirdly, it is said that Mr Recorder Luba was biased and erred in law when he ignored the fact that the Employment Judge had failed to deal with the applicant's disclosure application. The applicant contends that it is irrelevant that he can apply for disclosure to the Tribunal even now.

There seems to me no real prospect of persuading the Full Court that Mr Recorder Luba was guilty of some error of law. The decision was made by the Employment Judge in March 2012 where quintessentially case management decisions in relation to which, as is well established, he enjoyed a very wide discretion, and what he did, whether Mr Luba or I would have done the same being immaterial, was well within the margins of that discretion.

Mr Luba was, in my judgment, fully entitled to use the Burns/Barke procedure to seek elucidation of the position in relation to disclosure and consolidation. It seems to me that a request for clarification was entirely proper. The response was not, in my view, an engagement in advocacy but an explanation answering the request that had been made. Even if it had been an exercise in advocacy it would not mean that Mr Recorder Luba had erred in law.

At the pre-hearing review on 12th March 2012 the Employment Judge had been faced by a confused situation. He identified seven separate matters and he had before him a document from the applicant of over 270 pages which purported to be a list of issues for consideration by the Tribunal.

The Employment Judge described that document as unhelpful. He said:

As to consolidation, he took the view that the claims up to dismissal and dealing with the appeal therefrom should be dealt with together, and that the claims relating to subsequent applications for employment, that is to say some of claim 6 and all of claim 7, should be heard separately from the other claims which related to dismissal. He was not satisfied, having considered the claimant's documentation, that he had made an application for any documents other than those in the list of privileged documents and therefore made no order.

At the case management discussion on 23rd March 2012 the applicant sought to vary the order of 12th March 2012, so as to consolidate all the claims. The Employment Judge decided that there had been no change of circumstances. He rejected the idea that the "new", ie post termination, claims could be tried before the termination claims. He noted that it was the respondent's case that the decision makers in the case of the dismissal and the appeal therefrom were entirely different from those concerned in the subsequent application for employment. That that was the contention of the respondents was entirely relevant consideration. The applicant, for his part, does not appear to have performed the exercise of identifying the personnel involved in the different claims. The judge continued to take the view that the claims which related to the termination formed a broad set of issues which should be determined together, and that, if the new claims were considered at the same time, the inevitable consequence would be further and unwelcome complexity, and that adding the new claims would simply compound under considerable difficulties that already existed in holding a fair hearing. Once the claims relating to termination were determined he thought that the factual matrix would become clearer, which would make it easier to identify the evidence that would be relevant to the new claims. Although there are no doubt matters to be said in favour of consolidation, some of which are set out in the applicant's statements, that seems to me to be a view that was in no sense perverse, and one which it was open to the Employment Judge to take.

On 9th January 2013 the applicant was notified, as I have indicated, that Judge Peter Clark in the Employment Appeal Tribunal had come to the conclusion that his appeal notice revealed no reasonable grounds for bringing an appeal. Mr Recorder Luba heard the application under rule 3(10) on 30th May 2013 and he stayed it, for 28 days pending a response to two questions he asked of the Employment Judge.

The first question asked whether the Employment Judge had addressed the application which appeared to have been made in the applicant's letter of 7th February seeking disclosure at either of the hearings in March 2012 and, if so, what was the relevant order, and, if it had not been determined, what arrangements were being made for its determination. The second question invited the Employment Judge to indicate what it was that he proposed should happen so far as the composition of the Employment Tribunal in relation to the matters which were to be tried subsequently was concerned.

That seems to me to be an entirely sensible course and certainly one that was open to him. In paragraph 7 of his judgment Mr Recorder Luba records the applicant was happy with the first question.

In his response of 22nd August 2013 the Employment Judge said in essence that it had not been clear to him from the applicant's letter of 7th February whether he was applying for disclosure of the documents referred to therein or for their inclusion in the trial bundle. He said that the application had failed to identify clearly any document or class of document that the claimant alleged had not been disclosed, nor was the relevance of any such document addressed in the written application, and the claimant had failed to elaborate upon that at either oral hearing. He also observed that it was difficult to deal with any application for disclosure because the issues had been so poorly identified, so as to make any sort of assessment as to relevance difficult; and that, as he observed, it would be possible for an Employment Judge or Tribunal to reconsider the matter should there be a clarification of the application.

On the second question, in essence he said that it would be for the first Tribunal to make case management decisions in relation to the composition of the second Tribunal there was to hear the remaining claims.

When the matter came become Mr Luba in August 2014 he found that the applicant had a real prospect of success in showing that the Employment Tribunal should not have adjourned the privilege issue for consideration at the full hearing but that it should be considered in advance. But he agreed with Judge Peter Clark in relation to the two other matters. He rejected the proposition that if there was a separate hearing of the claims up to and including dismissal and the subsequent claims the applicant would not get a fair hearing within the meaning of Article 6 within a reasonable time.

In my judgment, he was right to do so. Article 6 does not preclude the exercise of a case management decisions such as these. It is also relevant to note that the delay in the present case has been exacerbated because of the disproportionate size and unfocused nature of the material that has been produced by the applicant.

Mr Recorder Luba held that the challenge to a case management decision made by the Employment Judge did not meet the high test expounded in the case of Nurani v Merseyside TEC Ltd (1989) IRLR 184. In my view he rightly held that there was no real prospect of establishing that the decision of the Employment Judge was perverse.

In relation to the documentation Mr Luba asked the applicant to explain why he did not take the course of making an application for specific disclosure, to which the applicant replied that he did not wish the let the judge off the hook. Mr Recorder Luba asked for assistance as to how the applicant said that the judge should have dealt with application 1. Application 1 is contained in the applicant's letter of 7th February 2012. It refers to various documents under 7 headings, the first of which, by way of example, reads:

The applicant's response in relation to the first of these sets of documents revealed that he already had some, if not many of the documents and that what he was really seeking to do was to remove the redaction, which was the privilege question. In the light of that Mr Recorder Luba felt unable to say that the judge erred in failing in March 2013 to make an order for disclosure and in requiring any specific application for disclosure to be made in a document which identified what exactly was sought and whether or not it was a document that was covered by the dispute about privilege.

There seems to me no prospect of the Full Court deciding that the approach of the Employment Judge or Mr Recorder Luba was perverse or was or would reasonably be perceived to be biased. The position before the Employment Judge was that he did not have an application which clearly explained (a) what documents were required; (b) what issue they went to and (c) why they were necessary for fair disposal of an action.

In those circumstances the judge was perfectly entitled not to make an order while indicating that a properly formulated application could still be made to the Employment Tribunal.

A successful appeal to Court of Appeal, if otherwise available, on whether Mr Recorder Luba or the Employment Judge was wrong would at best require the matter of disclosure to be returned to the Employment Tribunal for a properly focused application, which is exactly what was and remains on offer. An appeal would thus in this respect be a waste of time and money.

For these reasons I decline to grant permission to appeal.

There will be a transcript prepared of this judgment and I will arrange for a copy of the corrected transcript to be sent to the applicant.