IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
STATES EMPLOYMENT BOARD
APPLICATION FOR LEAVE TO APPEAL
Reference:  TRD 026
Before: Mrs Hilary Griffin, Chairman
Date: 12 December 2018
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”).
The Respondents entered their response denying the Claim.
3. The 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.
The Tribunal rejected the Claim.
By email on 14 November 2018, the Claimant sought leave to appeal the Judgment (“Request for Leave”). The grounds of appeal were:
the Respondent had decided not to call Ms D Donaldson as a witness for the Respondent;
the Respondents did not adhere to the Tribunal’s procedures and Orders; and
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.
6. Whilst 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.
The Claimant replied to the Tribunal on the same day, specifying that:
the Recusal Decision was biased and “Wednesbury” unreasonable; and
the Tribunal forms part of the Judicial Greffe which means that it is “creating bias and is ultimately corrupt.”
So 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.
In 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 Employment Appeal Tribunal. Mr Preston accepted that Harvey on Industrial Relations and Employment Law set out the position accurately at Division T, para 1630:-
‘An 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 ….”
19. I 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”.
In Voisin v Soares  JRC004, Commissioner Clyde-Smith confirmed at paragraph 13 that the disagreement set out above in Voisin v Brown was:
“resolved 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).”
The Claimant’s request for leave to appeal was presented within the requisite time limit.
First Ground – Ms Donaldson
By way of brief background, the parties attended a Case Management Meeting (“CMM”) before the Chairman on 22 June 2018.
At 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.
The Chairman issued Orders requiring that:
the Respondent confirm whether or not Ms Donaldson would be giving evidence at the Hearing by 3pm on Friday 29 June 2018 (“First Order”); and
the parties share their witness statements with each other by 3pm on 19 July 2018 (“Second Order”).
In 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.
16. In 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.
In 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.
As 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 only.
The 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 “proceedings”
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.
The Chairman therefore rejects this ground for appeal.
The Tribunal considered whether the Recusal Decision was “Wednesbury” unreasonable (ie. so unreasonable that no tribunal could have made such a decision).
The 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.
The Chairman therefore rejects this ground for appeal.
The Claimant’s request for leave to appeal is
Mrs Hilary Griffin, Chairman
Date: 12 December 2018