Posted by: John Brace | 23rd December 2014

Underhill, Kay and Tomlinson LJJ dismiss appeal of former Wirral Council solicitor Gregory Eyitene of earlier Employment Appeals Tribunal decision involving allegations of race and disability discrimination

Underhill, Kay and Tomlinson LJJ dismiss appeal of former Wirral Council solicitor Gregory Eyitene of earlier Employment Appeals Tribunal decision involving allegations of race and disability discrimination


Tim D N Kenward Invoice 2 Page 1 of 2 7 Harrington Street Chambers 19th April 2013 Gregory Eyitene v Wirral Metropolitan Borough Council £900 written advice draft letter

Tim D N Kenward Invoice 2 Page 1 of 2 7 Harrington Street Chambers 19th April 2013 Gregory Eyitene v Wirral Metropolitan Borough Council £900 written advice draft letter

I’m going to write about a rather complicated story now involving a former Wirral Council employee who worked as a solicitor there called Gregory Eyitene.

Mr Eyitene made claims of race and disability discrimination against Wirral Council which was heard by an Employment Tribunal in Liverpool (Employment Judge Ryan, Mr Roberts and Mr Gates) many years ago (the decision was sent out to parties in February 2012). The Employment Tribunal decided in favour of Wirral Council, but Gregory Eyitene then appealed this Employment Tribunal decision to the Employment Appeals Tribunal.

When it was heard by the Employment Appeals Tribunal in 2013, HHJ Richardson, Mrs A Gallico and Ms G Mills dismissed his appeal of the earlier Employment Tribunal decision. Mr Kenward of 7 Harrington Street Chambers appeared at this stage on behalf of Wirral Council.

Gregory Eyitene then appealed the decision of the Employment Appeals Tribunal to the Court of Appeal (Civil Division).

Underhill, Kay and Tomlinson LJJ dismissed his appeal in 2014. The latest decision in the case can be read online [2014] EWCA Civ 1243 and makes for interesting reading.

Mr Tim Kenward of 7 Harrington Street Chambers (who had also appeared for Wirral Council at the EAT stage) also appeared for Wirral Council in the Court of Appeal. Gregory Eyitene (the appellant) who was representing himself, had written in before the hearing to state he was unwell and couldn’t attend but was happy for it to go ahead without him there.

Although you can read the judgement for yourself [2014] EWCA Civ 1243, permission to appeal was granted (mainly) on one point, that is allegations of bias made by the appellant about the original Employment Judge Ryan who referred to a particular aspect of the Appellant’s conduct in the written reasons as “brinkmanship” (paragraph 2.37 of the reasons) as well as other reasons. The lay members (Mr Roberts and Mr Gates) to the original Employment Tribunal decision had stated they hadn’t seen the written reasons before Employment Judge Ryan had sent them out.

The view of the Employment Appeal Tribunal on their original ET decision as quoted in the judgement were as follows on this:

“In our judgment, there is no force in this point at all. The practice is for the Employment Judge to consult the members and agree findings, conclusions and reasons before the judgment and reasons are given. Based on the results of that consultation, the Employment Judge will then give reasons either orally or in writing. There is no reason to doubt that this process occurred here. The fact, if such it be, that the members did not receive a copy of the written reasons does not provide any support for the proposition that they did not associate themselves with the judgment and reasons. The members said they did not have a copy of the written reasons, but nothing in their comments suggests for a moment that they would or did disagree on the question concerned.”

The two lay members at the Employment Tribunal stage stated the following after Elias LJ had required the original Employment Judge and members to provide their comments.

Mr Roberts (one of the two lay members on the ET decision stated):

“This was a lengthy and complex case which generated a considerable amount of discussion between Tribunal members in chambers following completion of the case. I had access to my copies of the bundles and my handwritten notes totalling in excess of 80 pages. Colleagues consulted their own bundles and notes as necessary. In my many years of Tribunal experience, I have rarely been asked to comment on a draft version of the final written reasons for a judgment, nor have I been regularly copied into the written reasons sent to the parties. But I have always contributed fully to discussion and deliberations and been fully consulted in agreeing findings of fact conclusions and a final judgment. I have never had any reason to doubt that the written reasons sent to the parties would do anything other than accurately reflect the views of the Tribunal, unanimous or otherwise. I am content that Judge Ryan issued written reasons in this case that fully reflected the Tribunal’s findings and conclusions.”

and M Gates (one of the two lay members on the Employment Tribunal stated)

“Judge Ryan, Mr Roberts and myself sat down and discussed the issues and matters of fact in relation to all aspects of the case in great detail. We debated the numerous issues that had been raised throughout the hearing. Judge Ryan made full notes on all points and drafted the decision; again, standard practice in my experience. The decision we reached was a unanimous one with a full consideration and input from all the members. Judge Ryan had it typed and sent to the parties. I say this is normal/standard practice on the basis that I have sat as an ET member for over ten years sitting in six Tribunal hearing centres with judges from at least five Tribunal regions, the process followed in the various Tribunals and regions being broadly similar. Throughout my time sitting, I have only twice received from a judge a copy of the typed decision. On both these occasions, the decision of the Tribunal was not unanimous, but majority decisions; the judges on both occasions asking the members to consider the points relating to the differing views in particular.”

So Wirral Council successfully defended themselves at the Employment Tribunal stage, Employment Appeals Tribunal stage and the Court of Appeal stage of the decisions in this matter.

Some of the invoices for earlier stages in this case (for the FY 2013/14) were published in this earlier blog post. Colin Hughes was the solicitor at Wirral Council dealing with this matter at the EAT stage.

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  1. I take your quite subtle point about the above case (Brinkmanship) However for ” Evil to Flourish, is for good men and women to do nothing “

    • “Each to his own” or “Live and Let Live”

    • Well he can always appeal to the Supreme Court if he so wishes.

      TBH brinkmanship is a well known tactic used to force an opponent to back down and make concessions.

      Knowing how rarely Wirral Council make concessions, I can see how brinkmanship could be the only available strategy.

  2. One can also see why the Local Authority use Outside Solicitors/Very Good Outside Counsel and why Mr Eyitene represented himself, take it from me, even though the old adage is ” You have a Fool for a Client, when you represent yourself”

    • Sorry, should read ” represented himself ” rather than ” defended himself ” Plaintiff/Respondent issue

      • I’ve edited your original comment to take on board what you meant to write.

    • I agree that it is best to be represented. Even in an area I had a lot of experience in (say 10+ years) and I happened to be the claimant against an unrepresented defendant/s, I still wouldn’t do it without at the very least a McKenzie Friend.