The decision in Steel v Haringey has been available for 2 weeks without getting much notice. On its face, it raises only the relatively narrow issue of whether a job evaluation done prior to the finalisation of a new pay scheme is binding. The side issues though are more revealing.
The claimant/appellant Helen Steel was not merely a shop steward working for Haringey council and a litigant in person; she is also a former defendant in the Mclibel case, where she and Dave Morris famously fought off McDonalds in the longest civil case in UK history. Along the way, they had a number of victories, including in establishing the principle that article 6 extends to providing legal aid to complex and unusual cases.
So, after Ms Steel felt that her Tribunal case had been conducted in an unfair manner by Employment Judge Pettigrew sitting at Watford, Steel, entirely sensibly, included article 6 among her grounds of appeal.
Her complaints included:
i) the Judge brought to the hearing – midway through it – the names of cases which he, not the Respondent, thought made the claim inadmissible and were therefore relevant. Without providing copies and without giving any extra time to consider them, he asked both parties to make submissions on them. This was a process which naturally favoured the council, which was legally represented, over Ms Steel, who is not a lawyer.
ii) the Judge interrupted and then limited her, but not the Respondent’s, cross examination
iii) the Judge was wrong to refuse an adjournment where the Respondent had served on her shortly before the hearing a bundle of around 1000 pages – and the index only the night before the hearing (the EAT Judge intimated that although the documentation was copious, the Respondent appeared to have held back documents which were relevant and unfavourable to it).
This is how HHJ Shanks dealt with the fairness of the Tribunal hearing:
“The parties and Judge Pettigrew have each given accounts of what happened at the hearing; apart from differences of emphasis which no doubt result from the different perspectives of the participants it does not seem to me that there is much dispute about it. It is common ground that it was the Judge who raised the question of jurisdiction and the Delaney and Coors cases to which I refer below at the outset of the hearing of his own motion; I accept Ms Steel’s assertions that she had no opportunity to consider those cases and that, when it came to submissions, she did not feel able to deal with the point at such short notice. Mr Davies gave evidence first and it seems clear that the Judge, having reached a certain view of the case in the light of the jurisdiction point, was somewhat impatient with Ms Steel’s cross-examination of him and that (in the Judge’s own words) when she started asking Mr Davies about the August 2009 email referred to at para 9 above he ‘…indicated that [he] would not intervene further to assist the Claimant to pursue a relevant line of cross-examination, but that she was in danger of wasting the time she had available.’ It is common ground between Haringey and Ms Steel that the Judge indicated that unless she could show him a document sent to her after the collective agreement came into effect stating that her job had been evaluated at scale 4 he was not willing to open up the question of whether it had been evaluated at scale 3 or scale 4. I accept that from Ms Steel’s point of view the Judge’s approach was unhelpful and rather intimidating and that she did not feel that she was able to present her case fully.”
HHJ Shanks then moved on – without adjudicating on the article 6 appeal.
What is striking from this passage is how little desire the EAT showed in considering the fairness of the hearing in article 6 terms. If the same complaint of procedural unfairness had been made in any other area of law – civil, crime, family or housing – an appeal court would have felt obliged to answer it, rather than simply pretend that the issue had not arisen.
It is another small illustration of one long-running theme of this blog – namely how desperately employment law is still in need of a proper human rights jurisprudence.