Aziz v FDA (Formerly First Division Association) & Anor

Employment tribunals have a broad discretion in case management. Appellate intervention is justified only where there is clear and proper evidence of actual or perceived bias satisfying the legal test. A limited connection between a tribunal member and a party, such as common training, is insufficient where the member is neither a party nor a witness and no personal connection with the tribunal members is shown. Specific disclosure should not ordinarily be ordered in advance without an indication that the documents exist.

A party and its solicitors may state the party’s case and reserve a costs application. A disputed factual assertion in such a letter does not become harassment or victimisation merely because it may later prove false. Its truth is for the tribunal to determine.

Two linked matters arose from proceedings before the Employment Tribunal. The first concerned a 2007 race discrimination claim against the FDA and challenged case management decisions refusing a transfer outside London and specific disclosure of telephone records. The second concerned 2010 race discrimination and victimisation claims against the FDA and its solicitors, which had been struck out at a pre-hearing review as having no reasonable prospects of success.

The Employment Appeal Tribunal rejected the applicant’s challenges at the sift stage and, by an order made by Langstaff J on 5 October 2011 under rule 3(10) of the Employment Appeal Tribunal Rules 1993, dismissed the relevant issues. A single judge refused leave to appeal on paper. Lord Justice Elias heard the renewed applications. The central issues were whether the alleged connections created apparent bias, whether specific disclosure was required, and whether the solicitors’ letter amounted to victimisation or harassment.

1. Disposition. The two linked applications for leave to appeal were refused. The applicant had failed to identify an arguable error in the decisions below.
2. Case management and apparent bias. Decisions about transferring a case and ordering specific disclosure are matters within the Employment Tribunal’s discretion. Appellate intervention is appropriate where there is clear and proper evidence of actual or perceived bias satisfying the applicable legal test. Common training between a tribunal member and members of a trade union, without more, did not establish apparent bias. Mr Whiteman was neither a party nor a witness, and there was no suggestion that any tribunal member had a relevant personal connection with him. A later issue concerning a proposed witness’s own allegation of bias had not been before the judge making the challenged order and could not invalidate that decision.
3. Disclosure. The tribunal had made a satisfactory general order requiring disclosure of relevant documents, whether favourable or adverse. A specific order for telephone records was premature because there was no indication at the case management hearing of what documents existed. The tribunal could make a further order if potentially relevant undisclosed documents emerged during the proceedings.
4. The solicitors’ letter. A solicitor acting on instructions could set out the FDA’s case, explain its position on delay, and reserve the right to seek costs. The letter’s reliance on Mr Whiteman’s account of a disputed conversation did not make it harassment or victimisation merely because the account might later prove untrue. The applicant could dispute the account; its truth was a matter for the tribunal. The conclusion reached after consideration of St Helens v Derbyshire [2007] IRLR 540, BMA v Chaudhary [2007] IRLR 800 and Bird v Sylvester [2008] IRLR 232 was therefore correct.

• Court of Appeal (Civil Division) — On 14 June 2012, Lord Justice Elias refused the two renewed oral applications for leave to appeal.
• Employment Appeal Tribunal — The applicant failed at the sift stage before HHJ Richardson and the President. Langstaff J subsequently dismissed the relevant issues by order dated 5 October 2011 under rule 3(10) of the Employment Appeal Tribunal Rules 1993.
• Employment Tribunal — Employment Judge Grewal refused the requested transfer and specific telephone-record disclosure in the 2007 claim, and struck out the 2010 claims at a pre-hearing review as having no reasonable prospects of success.