Warner v B & M Europe Ltd (Practice and Procedure: Review) [2016] UKEAT 0081_15

HIS HONOUR JUDGE PETER CLARK

Introduction

1. This case has been proceeding in the Southampton Employment Tribunal. The parties are Mr Roy Warner, Claimant, and (1) B & M Europe Ltd (“B & M”) and (2) European Patent Office (“EPO”), Respondents. I have before me for Full Hearing two appeals brought by the Claimant. They are, chronologically: (1) an appeal against the Order of Employment Judge Trickey dated 2 September 2014 confirming his earlier Judgment dated 4 February 2014 on reconsideration, holding that the Employment Tribunal had no jurisdiction to hear the Claimant’s complaint of race discrimination brought against EPO (“the EPO appeal”, UKEAT/ 0081/15); and (2) an appeal against the Order of Employment Judge Reed dated 25 June 2015, refusing the Claimant’s application for reconsideration of that Judge’s Order dated 17 October 2014 striking out the Claimant’s complaint under sections 111 and 112 of the Equality Act 2010 (“EqA”) brought against B & M (“the B & M appeal”, UKEAT/0139/16).

Background

2. The Claimant self-describes as being of African-Caribbean origin. He is an IT Consultant by profession. B & M is a recruitment agency. The EPO is an organ of the European Patent Organisation as provided for in Article 4 of the European Patent Convention 1973 (“the 1973 Convention”). The European Patent Organisation (Immunities and Privileges) Order 1978 (“the 1978 Order”) provides, by paragraph 5:

“(1) Within the scope of its official activities, the Organisation [EPO] shall have immunity from suit and legal process … [“the immunity”].”

There then follows certain exceptions which do not apply in this case.

3. B & M supplied the Claimant’s services to EPO. The engagement lasted from 14 November until 21 December 2011. It was terminated in circumstances to which I shall return.

4. On 19 March 2012 the Claimant presented his claim form ET1 to the Employment Tribunal. He brought various claims against the Respondents of which the only relevant claims are (1) a complaint of direct race discrimination against EPO and (2) a complaint under sections 111 and 112 EqA 2010 against B & M, in particular (see section 112) knowingly helping EPO to contravene any relevant provision of the 2010 Act.

5. B & M resisted all claims made against it. The EPO did not enter an appearance.

6. On 3 December 2012 the matter came before Employment Judge Trickey at a Pre-Hearing Review. By a Reserved Judgment with Reasons dated 9 January 2013 that Judge, so far as is now material, issued a default Judgment (liability only) against EPO and secondly permitted the claim under sections 111 and 112 of the 2010 Act to proceed against B & M.

7. By letter dated 22 January 2013 EPO applied for the default Judgment to be set aside, relying on the immunity granted by the 1978 Order.

8. On 16 December 2013 Employment Judge Trickey considered the written representations lodged by the Claimant and EPO and, by a Judgment with Reasons dated 22 January 2014, he revoked the default Judgment and his underlying Judgment of 9 January 2013 as against EPO. In short, he held that the immunity applied to the Claimant’s complaint of racial discrimination against EPO. He discharged EPO from the proceedings.

9. It is also relevant to note (Reasons, paragraph 22) that the Judge directed a further hearing to determine whether the Claimant’s sections 111 and 112 complaint against B & M should be struck out as having no reasonable prospect of success.

10. The Claimant applied for reconsideration of the Judgment dated 22 January 2014 insofar as it set aside the default Judgment against EPO and discharged that party from the proceedings.

11. That reconsideration application was considered by Employment Judge Trickey, based on written representations only, on 22 July 2014. By a Judgment with Reasons promulgated on 2 September 2014 he confirmed the Judgment of 22 January 2014. The claim against EPO stood dismissed. It is against this Judgment (“the 2 September 2014 Judgment”) that the EPO appeal (UKEAT/0081/15) is brought.

12. Returning now to the sections 111 and 112 claim against B & M, the hearing referred to at paragraph 22 of Employment Judge Trickey’s Reasons dated 22 January 2014 was listed for 7 October 2014 by way of a telephone hearing. Throughout these proceedings the Claimant has been represented by Mr Swanson of Community Consultants. B & M initially appeared before Employment Judge Trickey on 3 December 2012 through Mr Smart, their Managing Director. Thereafter, solicitors were instructed. They in turn instructed Mr Stuart of counsel.

13. The telephone hearing on 7 October 2014 took place before Employment Judge Reed. Mr Stuart represented B & M; there was no appearance by or on behalf of the Claimant. By a Judgment with Reasons promulgated on 24 October 2014 Employment Judge Reed struck out the sections 111 and 112 claim against B & M. I note that the parties’ representation is inverted at the head of that Judgment.

14. The Claimant, through Mr Swanson, then applied for a reconsideration of the 24 October Judgment on the basis that he was not informed of the hearing on that day.

15. A Reconsideration Hearing took place before Employment Judge Reed on 22 May 2015 at which Mr Swanson appeared for the Claimant and Mr Stuart for B & M. By a Judgment with Reasons promulgated on 3 July 2015 (“the 3 July 2015 Judgment”) Employment Judge Reed dismissed the reconsideration application. It is against the 3 July 2015 Judgment that the Claimant brings the B & M appeal (UKEAT/0139/16). That appeal was lodged timeously on 16 July 2015.

The B & M Appeal

16. Mr Swanson reminds me that I considered this appeal on the paper sift and rejected it under Rule 3(7) of the Employment Appeal Tribunal Rules for the reasons given in the EAT letter dated 20 November 2015 (a copy of which apparently did not reach those instructing Mr Stuart). Although as a matter of practice that action does not preclude me from sitting on this Full Hearing, I raised the point with Mr Swanson, who had no objection to my continuing.

17. Following my Rule 3(7) direction the Claimant exercised his right to an oral permission hearing under Rule 3(10). His application, which came before Slade J on 17 May 2016, was successful. For the short reasons attached to her Order dated 24 May 2016 the appeal was permitted to proceed to a Full Hearing and was joined with the EPO appeal, then in train and listed for a resumed hearing (see below) for 29 June.

18. By her Order Slade J gave standard directions for preparation for the hearing of this appeal, with a truncated timescale to catch up with the EPO appeal.

19. Unfortunately, Mr Swanson failed to engage with the timetable set by the Order of 24 May such that on 23 June Simler P made an unless Order, non-compliance with which would result in automatic strike-out. Mr Swanson did not comply, and the appeal stood struck out.

20. At the beginning of the hearing on 29 June Mr Swanson applied for relief from sanction, an application opposed by Mr Stuart.

21. Having considered the history of the matter since 24 May and the absence of any compelling medical evidence to explain Mr Swanson’s failure to engage with the process, I concluded that the correct approach was to allow the application, there being no prejudice to B & M, subject to a wasted costs Order made against Community Consultants and Mr Swanson personally. Having considered what I was told about their means I awarded £500 costs in favour of B & M. That represented a fraction of the additional costs incurred by B & M, estimated at £5,000, as a result of Mr Swanson’s defaults, but it makes the point that representatives, including those providing unpaid litigation services like Mr Swanson, must comply with the Orders of this Tribunal.

22. Turning to the merits of the B & M appeal, I detect two separate strands to Mr Stuart’s opposition to the appeal.

23. The first question is whether it can be said that Employment Judge Reed reached a perverse conclusion in holding that Mr Swanson was aware of the 7 October 2014 telephone hearing but chose not to participate, as Mr Swanson argues. I reject that submission. The Employment Judge heard evidence from Mr Swanson and rejected it. He was satisfied that his organisation had been made aware of the hearing, contrary to Mr Swanson’s evidence, but failed to “attend”. The circumstances set out at paragraphs 5 to 10 of the Reasons plainly support the Judge’s conclusion. The perversity ground is unsustainable.

24. However, Mr Stuart developed a secondary argument which I found compelling; namely that even had Mr Swanson made representations at the 7 October hearing, there was no prospect of avoiding the strike-out Order.

25. At that hearing Mr Stuart advanced two alternative submissions. The first (see 24 October 2014 Reasons, paragraph 6) was that since EPO were able to claim immunity the sections 111 and 112 claim against B & M would necessarily fail. That argument was rejected by Employment Judge Reed, and the point has not been resurrected by way of the Respondent’s Answer.

26. Secondly (Reasons, paragraph 8) Mr Stuart submitted and Employment Judge Reed accepted that the sections 111 and 112 claim was bound to fail on the basis of a finding of fact made by Employment Judge Trickey, having heard evidence from the Claimant, at paragraph 27 of his Reasons for the Judgment dated 9 January 2013. It was the Claimant’s pleaded case in the Particulars forming part of his form ET1 (at paragraph 12) that his engagement was terminated by a B & M manager, Seamus Hayes, orally on about 21 December 2011.

27. However, at paragraph 27 of his Reasons Employment Judge Trickey noted the Claimant’s evidence, contrary to what appeared in his pleaded case, that his engagement was terminated by an EPO manager on 22 December 2011 and that neither B & M nor the wages company Dutch Pal knew what had happened. It therefore followed, as Employment Judge Reed found, that B & M did not have the necessary knowledge to support a claim under section 112 that a decision to dismiss (the detriment relied on in the race discrimination claim) had been made by EPO until after the dismissal had taken place. Hence the section 112 claim was bound to fail; no separate case was advanced on behalf of the Claimant under section 111.

28. For both of these reasons I would dismiss the B & M appeal.

The EPO Appeal

29. This appeal, then standing alone, was originally listed for a Full Hearing before me on 30 July 2015. I pre-read the papers, and it occurred to me that in his Judgment of 2 September 2014, whilst referring to Mr Swanson’s submissions invoking the Human Rights Act 1998 (see particularly Reasons, paragraph 26), it appeared that the Judge had not been referred to the EAT judgments (Langstaff P) in Al-Malki v Reyes and Benkharbouche v Sudan. Furthermore, there was no reference to those cases, since heard and determined in the Court of Appeal (see [2015] IRLR 289 and [2015] IRLR 301 respectively) in the papers before me.

30. At the hearing held on 30 July 2015 I raised this matter with Mr Swanson, there being no appearance by or on behalf of either Respondent. He accepted that I would require assistance on the effect, if any, of those decisions. I therefore adjourned the hearing for further submissions and directed that the Government Legal Department be notified of this matter in case The Crown wished to make representations.

31. In consequence, I have the benefit of detailed written submissions from counsel, Jessica Wells, instructed on behalf of the Secretary of State for Business, Information and Skills on the effect of Article 6 of the European Convention on Human Rights (“ECHR”) on the immunity. EPO continue to take no part in the appeal. Mr Swanson, belatedly, lodged a further submission on the morning of this resumed hearing. As he made clear in oral argument, his submission is that I should follow the result in Benkharbouche, namely that the immunity rule here should be disapplied in light of the Claimant’s right to a fair hearing under Article 6 ECHR.

32. As Ms Wells points out the present case is not directly concerned with either state immunity (see Benkharbouche) nor diplomatic immunity (see Al-Malki). However, those cases are plainly of assistance in determining the question in the present case.

33. Having considered the rival submissions, I accept the following contentions advanced by Ms Wells:

(1) That the grant of immunity to an international organisation such as EPO is compatible with Article 6(1) ECHR (see Klausecker v Germany [2015] EHRR SE8, a case in the European Court of Human Rights concerned directly with the immunity granted to EPO).

(2) If, contrary to the above, Article 5(1) of the 1978 Order is incompatible with Article 6 ECHR, nevertheless Article 6 is not engaged in the present case since Article 5(1) of the 1978 Order gives effect to the UK’s international law obligations under Article 8 of the 1973 Convention. That is the distinction between this case and Benkharbouche, on which Mr Swanson relies. In Benkharbouche the Court of Appeal held that there was no rule of international law which required the grant of immunity relied on by Sudan to be found in sections 4(2) and 16(1)(a) of the State Immunity Act 1978.

34. In his Judgment of 4 February 2014 Employment Judge Trickey held, as he was entitled to do, that the engagement of the Claimant in the provision of IT services fell within the scope of EPO’s official activities so that the immunity under Article 5(1) of the 1978 Order was engaged. Article 6 ECHR does not require the disapplication of Article 5(1) of the 1978 Order. In these circumstances the Judge correctly refused the reconsideration application by his Judgment of 2 September 2014.

35. Accordingly, the EPO appeal also fails and is dismissed.

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