IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
APPLICATION FOR LEAVE TO APPEAL
 TRD 026
Mrs Hilary Griffin, Chairman
12 December 2018
1. By a claim form received by the
Tribunal on 22 February 2018 the Claimant presented a claim that she had been discriminated
against because of gender reassignment (“Claim”).
Respondents entered their response denying the Claim.
matter came before Deputy Chairman Advocate Jones, Mrs M Cavey and Mrs E Adams
on 23 August 2018 (“Hearing”) with the judgment (“Judgment”) being sent to the
parties on 14 November 2018.
Tribunal rejected the Claim.
email on 14 November 2018, the Claimant sought leave to appeal the Judgment
(“Request for Leave”). The grounds of appeal were:
a) the Respondent
had decided not to call Ms D Donaldson as a witness for the Respondent;
Respondents did not adhere to the Tribunal’s procedures and Orders; and
c) the Tribunal
was biased because:
the Tribunal Service falls under the auspices of the
Judicial Greffe (the Respondent in this case); and
Deputy Chairman Advocate Jones should have recused
himself because he had found against the Claimant in a previous unrelated case.
considering the Claimant’s appeal, the Chairman noted that the Judgment did not
include written reasons for its decision to reject the Claimant’s application
that the Deputy Chairman recuse himself (“Recusal Application”). The Chairman
therefore requested that the Tribunal provide written reasons for the decision
to refuse the Recusal Application (“Recusal Decision”). The Tribunal sent the Recusal Decision to the
Claimant on 7 December 2018 and gave the Claimant the opportunity to amend her
original grounds for appeal.
Claimant replied to the Tribunal on the same day, specifying that:
Recusal Decision was biased and “Wednesbury” unreasonable; and
Tribunal forms part of the Judicial Greffe which means that it is “creating bias and is ultimately corrupt.”
far as is relevant, the Employment (Jersey) Law 2003 states:
(1) A person aggrieved by a decision or
order of the Tribunal may, on a question of law only, appeal to the Royal Court
by applying to the Tribunal for leave to appeal.
(2) An application to the Tribunal for leave
to appeal must be made before the end of the period of 28 days beginning with
the date of the Tribunal’s decision or order.
Voisin v Brown  JRC047, Commissioner Birt, then Deputy Bailiff, stated as
follows at paragraphs 18 and 19:
“18. The wording of
Article 94 mirrors that of the equivalent English legislation which confers a
right of appeal on a question of law from an Employment Tribunal to the
Tribunal. Mr Preston accepted that Harvey on Industrial Relations
and Employment Law set out the position accurately at Division T, para 1630:-
appeal from the employment tribunal lies only on ‘a question of law’ (ETA
21(1)). Accordingly, the EAT will have no power to interfere with a
tribunal’s decision unless it can be shown: (a) that the tribunal misdirected
itself in law or misunderstood the law or misapplied the law; or (b) that there
was no evidence to support a particular conclusion or finding of fact; or (c)
that the decision was either perverse in that it was one which no reasonable
tribunal, directing itself properly on the law, could have reached, or
alternatively, was one which was obviously wrong ….”
would add that there has been some disagreement in the English courts as to
whether the alternate formulation of ground (c) “…or alternatively, was one
which was obviously wrong …” is accurate. Thus May LJ in Hereford
and Worcester County Council v Neale  IRLR 168 at 174 said that neither
the EAT nor the Court of Appeal should disturb a decision of an employment
tribunal ‘unless one can say in effect: “my goodness, that was certainly
wrong”. On the other hand Lord Donaldson MR in Piggot Bros & Co Limited v
Jackson  IRLR 309 at 312 preferred to stay with the test that the
decision of the tribunal must be perverse, in the sense that it was one which
no reasonable tribunal, directing itself properly on the law, could have
reached. We do not need to resolve this conflict today as Mr
Preston’s main argument is that the Tribunal erred in law”.
Voisin v Soares  JRC004, Commissioner Clyde-Smith confirmed at paragraph
13 that the disagreement set out above in Voisin v Brown was:
in Luxicabs Limited v Baal  JLR 208 where the Court held
that if a party considered that the Tribunal had erred on the facts, he could
only appeal if he could contend that the Tribunal’s decision was Wednesbury unreasonable
(i.e. so unreasonable
that no reasonable tribunal could have made it) in
which event it would become a matter of law. Both counsel agreed that this was
the test to apply under category (c).”
Claimant’s request for leave to appeal was presented within the requisite time
First Ground – Ms
way of brief background, the parties attended a Case Management Meeting (“CMM”)
before the Chairman on 22 June 2018.
the CMM, the parties each identified the witnesses which they intended to call
to the Hearing. The Respondent
identified Ms Donaldson as being a potential witness.
Chairman issued Orders requiring that:
Respondent confirm whether or not Ms Donaldson would be giving evidence at the
Hearing by 3pm on Friday 29 June 2018 (“First Order”); and
parties share their witness statements with each other by 3pm on 19 July 2018
breach of the First Order, the Respondent only confirmed Ms Donaldson’s
attendance as a witness on 6 July 2018, seven days outside the deadline issued
under the First Order.
an email dated 16 July 2018, the Claimant made an application (“Application”)
to the Tribunal that it refuse to allow Ms Donaldson to give evidence at the
Hearing because the Respondents were in breach of the First Order. The Respondents opposed the Application in an
email dated 18 July 2018.
an email sent to the parties on 26 July 2018, the Deputy Chairman rejected the
Application. The Respondent was
therefore free to call Ms Donaldson if it wished to do so.
it was, the Respondents did not call Ms Donaldson to give witness evidence at
the Hearing. The Judgment is silent on the reasons for Ms Donaldson’s absence
and it is not clear whether or not her attendance was discussed at the Hearing. In any event, there is no suggestion that the
Tribunal either received or considered any witness evidence from Ms
Donaldson. Nor is there any suggestion
that the Claimant made a formal application for a witness summons. The Judgment would therefore appear to have
been based entirely on the evidence of the Claimant and the First Respondent
Chairman can identify no error in law by the Tribunal arising from the
Respondent’s decision not to call Ms Donaldson and the Chairman therefore
dismisses this ground for appeal.
Failure to adhere to
20. The Claimant
failed to identify the “proceedings” that
the Respondent allegedly failed to comply with.
This means that it is impossible for the Chairman to identify any error
of law by the Tribunal.
21. The Chairman
therefore rejects this ground for appeal.
Tribunal considered whether the Recusal Decision was “Wednesbury” unreasonable
(ie. so unreasonable that no tribunal
could have made such a decision).
Chairman carefully considered the Claimant’s grounds for appeal, together with
the Recusal Decision. She applied the
law as set out above to these facts and was satisfied that the Tribunal
properly balanced up the relevant issues in reaching its decision. The Chairman was satisfied that the Tribunal’s
decision was not “Wednesbury” unreasonable.
Consequently there was no error of law.
Chairman therefore rejects this ground for appeal.
Claimant’s request for leave to appeal is rejected.
Mrs Hilary Griffin, Chairman Date:
12 December 2018