Negative thoughts

Abegaze v Shrewsbury College of Arts and Technology

Rules governing tribunal procedure state that employment judges can make an order to strike out a claim if they think it is no longer possible to have a fair hearing. In Abegaze v Shrewsbury College of Arts and Technology the Court of Appeal said that it was still possible to have a fair trial even if the employment judge had formed a negative impression of the claimant and was concerned about infecting the view of other members of the tribunal panel.

Basic facts

In November 2000 Mr Abegaze succeeded in a claim of racial discrimination against the college. A number of dates were fixed for a remedies hearing but were mostly postponed because of Mr Abegaze’s poor health.

In October 2003 Mr Abegaze agreed to be examined by the college’s psychiatrist but, in reality, he failed to co-operate. Although arguing that he was still willing to be examined, he asked the tribunal to strike out the college’s request on the basis that the request was “scandalous”. This was refused in December 2004 and his appeal against that decision was unsuccessful.

After getting no reply to a request in May 2005 asking Mr Abegaze to agree an appointment date with their psychiatrist, the college asked the tribunal for a case management review. The Commission for Racial Equality then got involved and wrote on Mr Abegaze’s behalf in October 2005 saying that he was now fit to co-operate and wanted a remedies hearing as soon as possible. It also agreed that it was entirely fair that the college should examine him.

Nevertheless the college applied in November 2005 for the case to be struck out and after various delays a pre-hearing review was fixed for the beginning of November 2006. Mr Abegaze asked for this hearing to be postponed but the tribunal refused and the hearing went ahead.

Tribunal and EAT decisions

The judge decided to strike out the claim, saying that it was no longer possible to have a fair hearing.

His rationale was based partly on the fact that two of the three original tribunal members had retired and as all three had expressed preliminary views on compensation, it would be very difficult for him to “expunge that from his memory, and to ensure that, if this remedy hearing proceeds with two other lay members, to ensure that he does not try to influence those lay members."

The judge accepted that it was theoretically possible for the case to be heard by a separately constituted tribunal, but thought it was better for the same tribunal to conduct the remedies hearing.

The judge also felt it would be just about impossible for a tribunal to decide to what extent Mr Abegaze’s feelings had been injured. “Nor was it realistic to expect the claimant to be able to recall how he felt at the date the discrimination occurred”.

The judge also determined that a key witness would not now be able to give “cogent evidence” and it would not be fair to expect him to speculate as to what might have happened if Mr Abegaze had been given the job he applied for in 2000.

The EAT agreed with the tribunal decision and Mr Abegaze appealed again.

Court of Appeal decision

But the Court of Appeal disagreed, saying that it was possible for Mr Abegaze to have a fair trial.

Although the judge had formed a negative impression of Mr Abegaze, the Court of Appeal said he could quite legitimately have “shared his impressions and preliminary views, and those of the original lay members, with the new members”.

The Court thought it was inevitable that the new members would want to know what had happened at the initial hearing, but that “it would not have been wrong - and indeed would have been inevitable - that the original Tribunal would have carried their impressions of the witnesses and their preliminary views across to the remedies hearing had there been no change in the constitution, and I can see no objection to the employment judge sharing with new members what those impressions were”.

It concluded that “this would not be a wrong thing for the employment judge to do, and it would not constitute a basis for alleging either actual or apparent bias”, adding that “in any event, those concerns cannot in my judgment conceivably be a proper consideration justifying the striking out. The claimant should not be prejudiced by the fortuitous fact that the two original lay members have retired”.

Nor did it feel that any witness testimony would necessarily be unreliable, despite the time lag. The tribunal just had to make an allowance for the lapse of time.

It therefore remitted the case to a fresh tribunal to decide any appropriate orders and to preside over any remedies hearing.