Bennett v Southwark London Borough Council

An employment tribunal should not ordinarily recuse itself because an advocate has made an offensive and unfounded allegation of bias. It should first seek to defuse the situation by inviting justification or withdrawal and by considering whether it can continue impartially.

Strike-out for scandalous, frivolous or vexatious conduct concerns abuse in the conduct of the proceedings as a whole. It must also be a proportionate response. An appeal tribunal may substitute its own decision only where that decision was inevitable on the facts found; where the result remains open, it must remit the case.

The appellant brought race discrimination, sex discrimination and victimisation claims arising from her employment and dismissal. During the part-heard tribunal proceedings, her lay representative made offensive allegations that the tribunal was treating him adversely because he was black and not a barrister. The tribunal recused itself without inviting him to justify or withdraw the allegations.

A freshly constituted tribunal struck out the claims under rule 13(2)(e) of the Rules scheduled to the Employment Tribunals (Constitution etc.) Regulations 1993. The Employment Appeal Tribunal held that the original tribunal had recused itself prematurely but substituted its own decision to strike out the claims.

The appellant challenged the strike-out and the local authority cross-appealed on recusal. The central issues concerned recusal, scandalous conduct, proportionality and the Employment Appeal Tribunal's power to substitute a decision.

1. Disposition. The appeal was allowed and the local authority's cross-appeal was dismissed. The strike-out and associated costs order were set aside. The originating applications were remitted for a fresh hearing before a newly constituted employment tribunal.
2. Premature recusal. Sedley LJ, with whom Longmore LJ agreed, held that the original tribunal should not have recused itself when it did. An offensive allegation by an advocate should ordinarily be ignored, confronted by an invitation to justify or withdraw it, or followed by consideration of whether the tribunal can continue after a break. Courts and tribunals must have broad backs and resist conduct whose effect is to manufacture actual or apparent bias. Ward LJ agreed that the tribunal had overreacted and should first have allowed a response, although he considered that, once its members had concluded that they were actually unable to act impartially, discontinuance before that tribunal became unavoidable.
3. Scandalous conduct. Sedley LJ explained that rule 13(2)(e) addresses the manner in which proceedings are conducted, rather than merely the representative's behaviour. Abuse of the tribunal's process is the genus of which scandalous, frivolous and vexatious conduct are species. In this context, scandalous conduct can include using legal process to vilify others or gratuitously insulting the tribunal. It does not simply mean conduct which is shocking. Ward LJ considered the accusation itself scandalous, but held that the isolated incident did not make the overall conduct of the proceedings scandalous.
4. Attribution and proportionality. Conduct in a party's name is presumptively, but not irrebuttably, undertaken on that party's behalf. A party must have an opportunity to dissociate herself from an unauthorised abuse of process, subject to any ratification. Even where the statutory description is satisfied, strike-out must be proportionate. Firm case management may provide a sufficient response. Ward LJ held that strike-out was disproportionate; Sedley LJ expressed the same conclusion as a serious doubt because the order already failed on other grounds.
5. Substitution by the appeal tribunal. Under section 35(1) of the Employment Tribunals Act 1996, the Employment Appeal Tribunal may substitute its own decision only where the tribunal below, properly directed, was bound to reach that decision. Where the result remains an open question, the case must be remitted. Strike-out was not a foregone conclusion, so the Employment Appeal Tribunal lacked power to substitute it.

1. Court of Appeal: Allowed the appellant's appeal, dismissed the local authority's cross-appeal, set aside the strike-out and costs orders, and remitted the originating applications for a fresh tribunal hearing: [2002] EWCA Civ 223.
2. Employment Appeal Tribunal: Held that the original tribunal had recused itself prematurely, but substituted its own decision striking out the claims and dismissed the appeal from the later tribunal.
3. Warren tribunal: Struck out the claims for scandalous conduct of the proceedings and ordered the appellant to pay costs.
4. Lamb tribunal: Discontinued the part-heard proceedings after the appellant's representative accused it of racially discriminatory treatment, and directed that the matter proceed before a fresh tribunal.