Appeal No. EAT/0475/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 July 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
(AS IN CHAMBERS)

MR B CROFTON	APPELLANT

MR S YEBOAH	RESPONDENT

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
(In Person)	
For the Respondent	THE RESPONDENT
(In Person)	

MR JUSTICE LINDSAY (PRESIDENT)

1.	I have before me a meeting for directions.  It is, so to speak, a staging post in what has been and what may yet still prove to be a very long legal journey.  It arises in the matter as listed in front of me between Mr B Crofton and Mr S Yeboah.  The matter began with Mr Yeboah lodging claims in the Employment Tribunal against Mr Crofton and Mr Crofton’s then employer, Hackney Borough Council, in respect, he said, of racial discrimination.

2.	Seven cases, as I understand it, were brought on together before the Employment Tribunal.  I do not pretend to have a command of the whole history of the matter, nor is it necessary at this stage that I should have such a command, but the Tribunal proceedings below were spread over some 104 days between April 1997 and March 1998 and 7 reserved judgments were then delivered by the Employment Tribunal on 1 September 1998.  The outcome, so far as is immediately relevant, was that the Employment Tribunal found that Mr Yeboah had indeed been racially discriminated against by both Hackney Borough Council and Mr Crofton.  There then needed to be a remedies decision and, because Hackney Borough Council reached terms with Mr Yeboah, the remedies decision, I apprehend, went ahead only as against Mr Crofton.  A substantial sum was found payable to Mr Yeboah by Mr Crofton personally.

3.	That led to an appeal by Mr Crofton to the Employment Appeal Tribunal.  That appeal came on before a panel of 3 at the Employment Appeal Tribunal after a good many intervening directions hearings.  The substantive hearing at the Employment Appeal Tribunal took some 12 days or so and was heard by a panel (which I shall describe as “the original panel”) presided over by Burton J and consisting also of 2 lay members, Mr Peter Dawson and Mr Ivan Ezekiel.

4.	On 16 May 2001 a comprehensive judgment was delivered by the Employment Appeal Tribunal which overturned the Employment Tribunal’s view that had been in Mr Yeboah’s favour.  The judgment sets out at length reasons why the Employment Appeal Tribunal came to the view that the Employment Tribunal’s view was unsustainable on liability.  Towards the end of the Employment Appeal Tribunal judgment, under the heading ‘Other Issues’ in paragraph 52, the Employment Appeal Tribunal said this:

“In the circumstances, as we are sending the matter back, (and that is a reference to the decision to remit the question of liability back to the Employment Tribunal) we need to say nothing more about the various other points raised by BC (that is Mr Crofton) in respect of comparators, whistle blowing and detriment, all of which may look very different depending on the eventual findings of fact at a re-hearing.  Similarly, although we would certainly have been minded to interfere with the quantum of the award of compensation made by the Tribunal so as to reduce it, we shall say nothing further at this stage.”

5.	And then they dealt with another point that we do not need to deal with and the decisions of the Employment Tribunal were quashed and the matter was remitted.  That led to an appeal by Mr Yeboah to the Court of Appeal and on 31 May 2002 the Court of Appeal released its judgment which overturned the decision of the Employment Appeal Tribunal on the question of liability. 

6.	The judgment of the Court of Appeal as formally handed out did not deal at all with the question of quantum or remedy but there was, at the end of the hearing, immediately after the written judgment was handed, out a discussion that touched upon the proper course to be taken in respect of the appeal against quantum.  The ultimate order made by the Court of Appeal on this topic says only this:

“The Respondent’s appeal against the decision of the Employment Tribunal sent to the parties on 10 November 1998 (on compensation) be remitted to the Employment Appeal Tribunal to determine 

Plainly, the Court of Appeal took it that there had been an appeal on compensation before it.

7.	That has led to this directions hearing which, in effect, has three things to deal with.  First of all, should the hearing of the quantum appeal be expedited?  Secondly, before whom should it be heard at the Employment Appeal Tribunal?  Thirdly, what directions generally ought to be given in respect of it?  I should say that the Court of Appeal’s judgment of 31 May of this year refused leave to appeal to the House of Lords but I understand that Mr Crofton has petitioned to the House of Lords for leave.

8.	However, I must for the time being proceed on the footing that the decision of the Court of Appeal is left undisturbed and that the remission of the question of quantum to the Employment Appeal Tribunal is also left unstayed.  Of course, if subsequently matters appear to be different well then, no doubt a fresh application could be made.

9.	Turning to the 3 things that I need to deal with, the first, as I mentioned, is the question of whether the appeal should be expedited.  The Employment Tribunal decision as to remedy was sent to the parties on 10 November 1998.  Mr Crofton’s notice of appeal was received on 23 December 1998.  In the ordinary way an appeal on quantum presented in December 1998 could have been expected to have been finally decided by the Employment Appeal Tribunal in something like middle or late 1999.

10.	But there were huge delays in this particular case, partly because the notice of appeal was 1 day out of time (which then led to application and counter application), partly because of the difficulties in arranging a hearing for as many as 12 or so days at the Employment Appeal Tribunal and later, of course, because of the difficulties inherent in finding a hearing over some 4 days in the Court of Appeal and the need for full judgments to be written.  The question of compensation, therefore, perhaps in part simply because of its complication and length, was one bound to be lengthy in its resolution but extra time has been added to such delay as was inevitable.  The relevant events go back to the early 1990s.

10.	If there were to be a successful appeal followed by a remission to the Employment Tribunal in relation to quantum, that Employment Tribunal would be needing to deal with events very many a years old.  Now one either takes the view that as so much time has elapsed a little more time is hardly important or, as I would greatly prefer, the view that the elapse of time so far is a powerful factor militating towards the earliest convenient date being given for the hearing of the quantum appeal.

11.	In my view the case is proper for expedition.  The next question, then, is who shall hear the case?  The Court of Appeal, as I have indicated, simply remitted Mr Crofton’s appeal on remedy to the Employment Appeal Tribunal.  It neither said that it should be to the same panel as had heard the matter before or that it should be a different panel.  As I read that, it therefore left to the Employment Appeal Tribunal itself the question of what would be the proper constitution here that should hear the case.

12.	In the course of dealing with the appeal to the EAT the Original Panel said, as I have indicated,that they would certainly have been minded to interfere with the quantum so as to reduce it.  That represents no judgment as such, still less any order on the subject.  The Employment Appeal Tribunal, having set aside liability, felt, as is not uncommon that they did not need separately to deal with the question of quantum but they did give that passing indication of their view at the time.

13.	On this proposed remitted hearing, as required by the Court of Appeal, both parties are entitled to have the matter heard by a panel which is unencumbered by the baggage of views formed at earlier stages and, moreover, a panel which both parties that can see to be free from such encumbrance.  I would have no doubt that the Original Panel could and would free themselves from the history of the case and their role in it but it would, as it seems to me, be hard to describe as unreasonable Mr Yeboah’s doubts and his want of confidence, given that broad indication that I have read out as to the view of the Employment Appeal Tribunal uttered in passing by the Original Panel to the course of their judgment.  The retention of the Original Panel, as it would seem to me, whilst it would involve, as Mr Crofton urges, a case of justice doubtless being done, would arguably not be a case of its being seen to be done.  In the circumstances it seems to me appropriate that no member of the Original Panel should be listed to hear the remitted question of remedy.

14.	I gather also that Mr Recorder Langstaff, who sits here not infrequently as a judge at the Employment Appeal Tribunal, has acted earlier at some stage for Hackney Borough Council and, that, as it seems to me, indicates that he would not be an appropriate judge to head the panel on the remission.  His Honour Judge Peter Clark tells me that he once advised Mr Yeboah in conference when he was Counsel and, again, it seems to me that that rules him out.  Neither of Mr Recorder Langstaff nor His Honour Judge Peter Clark should be on the remitted panel.

15.	So there needs to be an expedited hearing but to some panel not including those people I have mentioned.  It seems to me that it is right that the matter should be heard by a High Court judge sitting with 2 lay members.  The indications I have been given as to the time it will take do not justify any view that the appeal would take more than 2 days.  Certainly I would expect that the matter could be contained in that period.  Accordingly, I direct that the matter shall be heard on 12 September and 13 September before Maurice Kay J, who will be sitting here at the time, with 2 lay members who comply with the restrictions that I have mentioned.  As to other directions, there should be an exchange of skeleton arguments between the parties not less than 10 days before the hearing, with copies to the EAT by the same date.

17.	Bundles of documents should be sought to be agreed between the parties.  I am not at this stage told whether either or both of the parties will be in person, as they are in front of me today, or may be represented and I shall shortly hear both Mr Yeboah and Mr Crofton in more detail about any particular directions that need to be given as to bundles of documents.  But there is one extra factor that, in the course my glance of the papers, has troubled me slightly which I think I ought to mention.  It is not a matter on which I have heard the parties today, nor would it be right that I should.  But the point arises in this way, and it will be possible for the parties to look at the transcript of the judgment I am now giving and reflect upon it.

18.	Mr Crofton, in his notice of appeal asserts that the Employment Tribunal failed properly to apply the law relating to awards against individual employees and also the rules of vicarious liability and his amended notice of appeal retains a similar somewhat broad attack.  A feature in that area that troubles me - and I mention it because it might transpire that what Mr Crofton means to assert is not recognised in advance as what, indeed, he is meaning to assert - is this.  First of all, before the hearing as to liability had concluded certainly before the hearing as to remedy had concluded, Hackney, as Mr Crofton’s employer, had concluded an agreement with Mr Yeboah.  It listed 5 IT1 references and it said:

“In full and final settlement of all claims the Applicant has or may have arising out of his contract of employment and the termination of it including any tortious claims, except for any latent injury or disease (as to which none is known) Hackney will pay the Applicant £380,000.”

19.	The compromise is not limited to claims against Hackney direct in respect only of Hackney’s own acts.  It is for all claims within that broad description I have cited and there is also a reference to general damages, including injuries to feelings.  It would therefore seem at least arguably to have been a compromise which compromised cases including tortious claims in respect of which damages for injury to feelings were awardable.  Amongst the particular IT numbers to which it referred was one 07093/96.  Mr Yeboah’s complaints in relation to the termination of his employment included, within that IT1 007093/96, that he had had no option but to terminate his contract of employment because of his employers ‘intolerable conduct’, which included, he said, racial discrimination and victimisation.  Further and better particulars were given of the intolerable conduct, which particulars I do not have, but it would seem that the particulars included the Council’s failure to control racial discrimination by Mr Crofton and racial discrimination occasioned by Mr Crofton going to the media.  I would not want to speculate as to just how the particulars were framed but they do seem to be likely to have covered aspects of racial discrimination by Mr Crofton and the failure of the employer adequately to take steps to control or counter it.

20.	It may therefore be that amongst the claims between Mr Yeboah and Hackney that were settled were claims for racial discrimination against Hackney deriving from Mr Crofton’s conduct and in Hackney’s capacity as his employer, at any rate to whatever if any extent that such activity was alleged to be part of the intolerable conduct which caused Mr Yeboah to terminate his contract of employment.  In so far as anything racially discriminatory was done by Mr Crofton himself to Mr Yeboah in the course of his employment then Hackney would have been deemed also to have done those very acts (see Section 32(1)) of the Race Relations Act), as well, of course, of as the law recognising that Mr Crofton had done them himself.

22.	Thus, in relation to racially discriminatory acts which were both (1) within the intolerable conduct Mr Yeboah had complained of as being amongst the conduct leading to his termination of contract and, (2) done by Mr Crofton in the course of his employment by Hackney, it may be arguable (and that is all I am saying) that such claims were settled in full Mr Yeboah and Hackney but therefore also as between to some extent as between Mr Crofton and Mr Yeboah even before the liability hearing was concluded.

23.	True it is, on this hypothesis, that Mr Crofton did those acts and that under Section  33(2) Mr Crofton would be deemed to have aided their doing by Hackney but it is far from clear to me, certainly at this very very early stage, if there had been settlement in full with Hackney in respect of those acts, that there would be any residual liability to compensate left to fall to Mr Crofton.  The matters would already have been settled in full.  It is to be remembered that “in the course of his employment” has always been an expression of great width within Section 32(1) (see James v Tower Boot Co Ltd [1997] IRLR 168 Court of Appeal and in any event has been widened in the common law generally - see Lister v Hesley Hall [2001] ICR 635 House of Lords.  I have mentioned this point not because it will necessarily arise on the remedy appeal but because it may do so and that it would be better, if it is to be raised at all, that some thought should have been given to it in advance of the hearing, as especially might be desirable if, as is the case in front of me, both parties appear in person.  I must not be taken to be saying that there, is so to speak, something in the point as my papers are incomplete and, as I have indicated, I have heard neither side upon the point.  The question I have touched on and my view of it is only provisional but it does seem to me that it would be worth the parties considering the point and giving it some more careful analysis.  It could even be that the Civil Liability Contribution Act 1978 will need to be considered.  This is a little flurry that I add to this judgment, but, reverting to the basic matters that I have indicated earlier, this is an appeal which is fit for expedition.  It shall not be heard by the Original Panel but by a panel as I have indicated.  I mark it for hearing before Maurice Kay J on 12 and 13 September and I will now ask the parties, now that they know the time table that I have in mind, for such views as they have on the production of bundles of documents.  

25.	The next stage then is bundles of documents.  If each has seen the other’s case by 29 August, by what date can they reasonably expect to have completed what they need as to bundles.  If I said 6 September that would be a week and a day. 

Bundles should be exchanged by 6 September.  In practical terms all you need to do, I would hope, is simply to send to your opponent a proposed index.  Of course, if it is known to refer to a document which the other side has not got, well, different consideration then apply but at this stage everyone should know what everyone else has got.  So, when I say bundles to be agreed, it is really a question of sending an index to the other side.