England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge McMullen QC)

		Royal Courts of Justice Strand London, WC2
		22nd July 2003

Tuesday, 22nd July 2003
1. LORD JUSTICE PETER GIBSON: This is an appeal by Mrs Sukul-Lennard from the order made by the Employment Appeal Tribunal on 5th November 2002 at the preliminary hearing of her appeal from the decision of an Employment Tribunal sitting at London South. By that decision sent to the parties on 11th December 2001 the Tribunal decided that the Originating Application of Mrs Sukul-Lennard by which she had complained against the respondent, Croydon Primary Care Trust, of racial discrimination should be struck out pursuant to powers conferred by rule 11(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. At the Tribunal hearing, Mrs Sukul-Lennard had been represented by her husband, who is a doctor, at least for the purpose of applying for an adjournment on the grounds of ill-health, those grounds being supported by medical notes. The Tribunal expressed scepticism as to the genuineness of Mrs Sukul-Lennard's illness. They gave as their reason for their decision to strike out that Mrs Sukul-Lennard had made no attempt to comply with directions given at a directions hearing of the Tribunal. Mrs Sukul-Lennard then appealed unsuccessfully to the EAT.
2. Following the dismissal at the preliminary hearing of her appeal, she applied to this court for permission to appeal. This court, consisting of Hooper J and myself, granted permission to appeal limited to three grounds: (1) that rule 11(3) was inapplicable, because it only applies where a party fails to attend or be represented and Dr Lennard appeared for his wife; (2) the Tribunal were striking out for breach of directions given under rule 4(1) of the 2001 Regulations, and rule 4(8) provides the sanction of striking out for breach of directions given under rule 4(1), but provides safeguards which, it was arguable, were not complied with; (3) the Tribunal appear to have rejected the medical evidence in support of the application for an adjournment, when arguably they had no material to justify such a course of action.

The three grounds were either not argued at all, or possibly one was argued in rather different form, before the EAT.

3. The respondent was not, of course, present either at the preliminary hearing before the EAT or on the application for permission to appeal to this court. In the skeleton argument for the respondent, Miss Eady acknowledges that the points on which Mrs Sukul-Lennard was given permission to appeal to this court are arguable. She has indicated that the respondent is content that the appeal be allowed, provided that the matter is remitted to the EAT for a hearing on notice to the respondent so that the respondent's arguments resisting Mrs Sukul-Lennard's appeal can be considered by the EAT. In effect she is content that the EAT's decision, which was not to allow Mrs Sukul-Lennard's appeal to go to a full hearing, be reversed but limited to that point. Those arguments have not been considered by the EAT, or indeed adjudicated on by this court, save for the preliminary indication that the points were proper points to be argued on an appeal to this court. Miss Eady submits that it is particularly appropriate in cases like this, which are concerned with procedure and practice in the Tribunal, that the EAT should have the opportunity to give their version on the points in dispute. She argues that this court, before determining the points, would find it of assistance to have the judgment of the specialist tribunal, which is the EAT. She refers us to Grady v HM Prison Service [2003] EWCA Civ 527. In that case the court had allowed an appeal but declined to determine the substantive issue, saying (in paragraph 28):

"The issue is one which depends heavily on the accumulated experience and knowledge of the EAT in respect of Employment Tribunal practice and procedure, and our judgment -- at least in the absence of a reasoned decision from them -- would be a poor substitute for theirs."

Accordingly they allowed the appeal and remitted the matter to the EAT. She says that we should do the same. If we were not prepared to do that, she was prepared to argue the respondent's case on the appeal.

4. Mr Sukul for Mrs Sukul-Lennard submits that this court should remit the case back to the Tribunal. He points out in his skeleton argument that in giving permission to appeal this court suggested arguments as to why the Tribunal may have erred in striking out Mrs Sukul-Lennard's Originating Application. He refers us to Anya v Oxford University [2001] ICR 847. In that case this court allowed an appeal by the applicant from the EAT which had dismissed the applicant's appeal from an Employment Tribunal. That Tribunal in turn had dismissed the applicant's complaint of racial discrimination. This court remitted the case back to the Tribunal for a rehearing. But Mr Sukul does not have any answer to Miss Eady's submission that this court would be assisted by the EAT's consideration of arguments which the respondent has not yet had the opportunity to deploy before the EAT. He says that it was for the EAT to think of the points which occurred to this court. The fact is that it was for Mrs Sukul-Lennard to advance the arguments which would have a real prospect of success, and it was only with the help of this court that such arguments were found.
5. To my mind, given the nature of this case and the procedural issues involved, it is plain that it would be better that the EAT should consider the arguments now sought to be advanced for the respondent. The preliminary hearing procedure for appeals to the EAT does have the consequence that this court may have an appeal from the decision reached at a preliminary hearing without the benefit of the views of the specialist tribunal, the EAT, on the respondent's case. It may well be that the respondent could have advanced points in writing to the EAT for the preliminary hearing, but if it had done so it would have been responding to what were the points taken by the appellant, not trying to anticipate what this court might consider to offer a real prospect of success on an appeal. In my view, there must be power for this court to achieve the result that the EAT will, at a full hearing, consider points such as now arise in this case.
6. It seems to me that the appropriate order is to set aside the decision of the EAT and to direct that Mrs Sukul-Lennard's appeal from the Tribunal should go to a full hearing of the EAT so that both sides can advance the arguments which they wish to advance but which have not yet been heard in contested litigation. Accordingly, I would make such an order.
7. I would add that, of course, when the matter goes back to the EAT it will go before a differently constituted EAT from that which conducted the preliminary hearing. I would hope that thereby justice would be done to both sides.
8. LORD JUSTICE MANCE: I agree.
9. LORD JUSTICE LONGMORE: I agree also.

Order: As above.