United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 693_94_0610

Appeal No. EAT/693/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 October 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J D DALY

MR J C RAMSAY

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MR G D PERERA          APPELLANT

ROYAL HOSPITAL & HOME          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE APPELLANT

MS V GAY AS AMICUS CURIAE


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr G.D. Perera against a decision of the Industrial Tribunal held at London South on 16 June 1994. The hearing was a Pre-Hearing Review conducted by the Industrial Tribunal in proceedings for race discrimination by Mr Perera against the Royal Hospital & Home at Putney.

The proceedings were commenced by an application presented on 1 September 1993. Mr Perera, an Auxiliary Nurse, complained that in the previous year (1992), he had applied for an auxiliary nursing post at the hospital and two references were given, as requested. He alleged that he had phoned the hospital about his application. The Nursing Administration Officer said they would short-list his name for an interview. Nothing happened. He rang again on 3 August 1993 to ask what had happened to his application form and why he was not called in for an interview. He said that the Administration Officer avoided giving answers to his questions, and that he would need to apply again. The following day he received a new application form for him to fill up. It is in those circumstances that he alleges he was discriminated against in recruitment, as the hospital had deliberately omitted to offer him employment, or avoided consideration of his application.

The response in the Notice of Appearance put in by the hospital on 15 November 1993, was that they were surprised by the accusations because no record could be found of an application request by Mr Perera before 3 August 1993 telephone call by him. As a result of that call he was sent an application form and letter attached. The form had never been received duly completed. They stated:

"We are concerned that we are being accused of discrimination in recruitment when we have never received a completed application form to consider the applicant. We are also concerned that Mr Perera did not contact us, following our letter of 3rd August, if he was concerned that his application form was not being

processed. We have no record that any contact has been made since the 3rd August".

At the Pre-Hearing Review on 16 June, the Tribunal decided that Mr Perera's application had little prospect of success. He was warned that, if he proceeded and failed, he might be liable to have costs awarded against him in respect of the Respondents' costs. He was ordered, as a condition of proceeding with his application, to make a deposit within 35 days of the sum of £150. The appeal is against that Order by a Notice of Appeal received in this Tribunal on 14 July 1994.

In his Notice of Appeal and in a further letter sent to this Tribunal notifying us that he would not be attending the preliminary hearing today, Mr Perera made a number of points. He says that the decision has put him at a greater disadvantage over the other party. He complains that the Chairman was "impartial" (sic) and failed to pay attention to the content of his complaint.

He lists his complaints. The Chairman did not pay attention to the content of his application. He referred to the complaint about the hospital's behaviour in relation to his 1992 application. He said that the Chairman had not properly consulted the other Members of the Tribunal or given them a chance to express views. The Chairman was partial and adopted the hospital's position without questioning. He argued, he says, with each of Mr Perera's points saying that documents can be lost. The Chairman accepted the hospital's claims that Sri Lankans are employed by them as Nursing Assistants. Mr Perera takes issue with that. That was a "wrongful assumption" which influenced the decision. In relation to the Order that he should pay a deposit of £150, he says that was a wrong decision which left him in what he describes as "a morale defeat and an unbargainable position with the RHHP".

He says that the Chairman looked at his documents and even let the other party leave with his documents. He also complains that those documents were retained and that he still has not received them back.

In the further letter sent to this Tribunal in September 1994, he outlined his arguments along similar lines, which, in summary, were that adequate attention was not paid to his complaint, that the Chairman was wrongly influenced by arguments in favour of the hospital, in particular, the point he made himself that documents can be lost. He says that he has witnesses to prove the racial nature of particular people in the hospital administration. The decision of the Tribunal was largely influenced by the claim, which he says is not true, that the hospital employs Sri Lankans as Nursing Assistants. He repeats his complaint of the failure of the Chairman to involve the lay members in the decision.

We have to consider all those complaints against the Rules which govern the powers of a Tribunal to hold Pre-Hearing Reviews. At our invitation, we have received assistance from Miss Gay. She has not been instructed by Mr Perera and does not represent him today. She has been invited by us to assist us with this appeal in the absence of Mr Perera. She has made a number of points in relation to the scope of the discretion of the Tribunal on a Pre-Hearing Review and on the exercise of that discretion on the facts of this case. She has pointed out the two relevant parts of Rule 7 in the 1993 Rules. The first is that:

"A Tribunal may, at any time, before the hearing of an Originating Application on the application of a party made by Notice to the Secretary, or of its own motion, conduct a Pre-Hearing Review consisting of a consideration of:

(a) the contents of the Originating Application and Notice of Appearance;

(b) any representations in writing and

(c) any oral argument advanced by and on behalf of the party"

Sub-rule (4) says:

"If on a Pre-Hearing Review the Tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a Tribunal had no reasonable prospect of success, the Tribunal may make an order against that party, requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter".

The points drawn to our attention by Miss Gay in the context of those rules are based on a letter of 8 July 1994 sent to Mr Perera by the Regional Secretary of the Tribunals at London South, recording the outcome of the Pre-Hearing Review held on 16 June. In that letter the claim of Mr Perera is summarised, and these points are recorded. First, that the hospital made it clear that they are a hospital who employ a large number of auxiliary nurses, many from ethnic minorities. Sri Lankas are specifically mentioned. The Respondents submitted that it was not their practice to practice discrimination. In particular, there are Sri Lanka nurses employed. The letter records that Mr Perera produced to the Tribunal copies of his application made in June 1992, and a copy of an acknowledgement letter and copies of letters sent by the hospital taking up his references.

It is recorded that the Applicant was offered the chance to re-submit his application form, but insisted he had no intention of doing so, being unemployed since 1992 when he made the application.

It is then stated as follows:

"The Tribunal having considered the papers and heard submissions from the Applicant and the Respondent feel that this Application has no chance whatever of success and warns the Applicant that if the Applicant does proceed and fails, then it is likely that he will be liable to pay the costs of the Respondent."

They state the basis on which they made the Order for the deposit of £150.

Miss Gay made the following points. The Tribunal were shown by Mr Perera on the Pre-Hearing Review documents which falsified the claim made in the original Notice of Appearance that they had never received any application for a position before August 1993. She pointed out that it did not appear from the decision of the Tribunal that they had received any explanation from the hospital as to why his application, made in June 1992, had not been processed, or any explanation as to why, in their Notice of Appearance, they said that they had not received any application. Documents were now produced to show that they had. It was for them to produce an explanation of the position now that Mr Perera had produced documents which contradicted the claims made by them in their Notice of Appearance.

She went on to submit that it therefore appeared that the Tribunal had not taken into account the fact that the case set out in the Notice of Appearance could not be supported. They had not given sufficient weight to Mr Perera's position as a member of an ethnic minority whose application form had not been processed and no explanation had been offered for not processing it. The Tribunal had in a number of respects trespassed into the impermissible area of making decisions on areas of fact in dispute.

In all those circumstances the decision of the Tribunal to order the deposit, on the basis that the claim had little of success, was a perverse one which no reasonable Industrial Tribunal would have reached. The effect of the Order is that Mr Perera may well be denied access to the Tribunal if he cannot put up the money. We are aware of the draconian effects of imposing this order. We are indebted to Miss Gay for pointing out a number of aspects of the case which were not taken up by Mr Perera himself in his Notice of Appeal and in his written submission.

We are unable however, to reach the conclusion that the Tribunal has so exercised its discretion that it can be described as "erroneous in law". The discretion contained in Rule 7 is in very wide terms. As Miss Gay recognised, there can only be an appeal against a discretion on a point of law if it is shown that the Tribunal committed some error of legal principle or took into account matters which it should not have done, or failed to take into account matters that it should have done.

It appears to us that, although we might have exercised a discretion differently, that does not mean that the discretion was exercised in error of law by the Tribunal. The letter of 8 July explaining the decision makes it clear that the Tribunal did take account of various matters drawn to its attention by the Applicant and supported by copy letters in relation to the making of the application in June 1992. The Tribunal have said, and we must accept, that they considered all the papers and they heard submissions on both sides.

In our view, it is very much a matter for the Tribunal on the Pre-Hearing Assessment to decide whether or not a case stands a chance of success or not. We will only interfere with the exercise of that discretion where there has clearly been some legal error. We will not interfere with the exercise of that discretion simply because more weight might have been given to some factors than perhaps the Tribunal gave to them.

For those reasons the appeal will be dismissed at this preliminary stage. There is no real prospect of satisfying a Tribunal on a full hearing that there was an error of law committed by the Tribunal in ordering the payment of £150 deposit.