United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 57_95_1603

Appeal No. EAT/57/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 March 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

LORD GLADWIN OF CLEE CBE JP

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MISS B FRANCIS          APPELLANT

TSB GROUP PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO ATTENDANCE BY           APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal brought by Miss Bridget Francis against the decision of the Chairman of the Industrial Tribunal striking out the originating application, presented on 15 July 1994, complaining of constructive dismissal from the position of secretary by the TSB Group plc. The background to the order appealed against is that on 3 November 1994 the Tribunal at Birmingham held a pre-hearing review before the Chairman alone, Mr C F Sara. An order was made dated

8 November and sent out to the parties on 9 November. The order was in these terms:

"The TRIBUNAL considers that the contentions put forward by the applicant herein have no reasonable prospect of success. The applicant is ordered to pay a deposit in the sum of £75, as a condition of being permitted to continue to take part in these proceedings. The attention of the parties is drawn to the annexed Note."

Then there are set out reasons in summary form for considering that the contentions of the Applicant had no reasonable prospect of success. It is unnecessary in the circumstances to examine those.

The Decision concludes:

"On the limited information as to the applicant's means, I have decided to order that she pay a deposit of £75.00."

The Order dated 8 December (and signed by Mr Sara, the Chairman) said:

"In exercise of my powers contained in Rule 7(7) of the Rules of Procedure set out in

Schedule 1 to the Industrial Tribunals Rules of Procedure 1993, I hereby strike out the Originating Application herein."

The summary reasons given are that the Applicant failed to pay to the Tribunal the sum specified in the order dated 8 November 1994, within the requisite period. No request had been received for an extension of that period.

The legal position under the rules is that Rule 7 empowers tribunals, at any time before the hearing of an originating application, to conduct a pre-hearing review. It is provided that if the Tribunal considers that contentions put forward by the party in relation to the matter required to be determined by the Tribunal have no reasonable prospect of success, the Tribunal will make an order against that party, requiring the payment of a deposit not exceeding £150 as a condition of being permitted to continue to take part in the proceedings. Rule 7(7) provides:

"If a party against whom an order has been made does not remit the amount specified in the order to the Secretary either-- (a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or (b) within such further period, not exceeding 14 days, as the Tribunal may allow in the light of representations made by that party within the set period of 21 days, the Tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates."

The basis of the order striking out the proceedings was non-compliance with the order made for the payment of £75 deposit within the requisite period. Miss Francis was dissatisfied with that decision and sent in a letter of appeal received on 17 January 1995.

I should state what the position as to representation is today. The Employment Appeal Tribunal sent a letter to the Appellant on 3 March 1995 giving Notice that the Preliminary Hearing of the appeal would take place at Audit House today, not before 11.30 a.m. No communication has been received from or on behalf of the Appellant in relation to the hearing arrangements. Miss Bridget Francis has not attended. No-one has attended on her behalf. We have proceeded to deal with the matter on the basis of the papers before us. In the letter of appeal the complaint is made that the case had been struck out for failure to pay the deposit within the requisite period. The appeal notice then goes on:

"You will see from my letter of 3 November 1994 (enclosed) that I did make an offer of payment by cheque on behalf of the Applicant which was refused. I was told that the Applicant would receive in writing a formal request for payment within 21 days and the decision in writing. We requested an extension of this period as a complaint had been submitted on 4 November 1994. The request was granted and we were to be advised in writing. The Applicant, of course, never received this despite numerous requests. The Applicant's financial circumstances were not taken into account at the Pre-Hearing Review and she was not present at the Review to answer any questions.

The Applicant has not received in writing a formal request for payment or any reasons for the Tribunal considering that the case has no reasonable prospect of success, again, despite numerous requests for the documents or a copy of the tape recording of the Pre-Hearing Review held on 3 November 1994, which contained the decision.

Therefore the Appeal is to have the originating application reinstated to proceed to a full Industrial Tribunal hearing."

We have read the enclosed letter dated 3 November and a later letter sent to Judge Lawrence, the President of Tribunals by Miss Marcia Francis on behalf of Miss Bridget Francis dated 6 December 1994, in which certain representations were made as to the identity of the Chairman who heard the pre-hearing review and as to an alleged possible conspiracy.

It is unnecessary to go into those matters. In this appeal we are confined to dealing with questions of law. The question is: is there a reasonably arguable case for saying that the order made by the Chairman on 8 December striking out the case is in error of law? On the material before us he was entitled to make such an order in accordance with the rules. A pre-hearing review had taken place. Reasons were given for the conclusion that the case had no reasonable prospect of success. An order was made in unambiguous terms as to the payment of £75. It was not paid within the period specified in the rules. The decision records that no request for an extension had been received. There is no error of law, on the basis of those facts, in the striking out order. We would add this. If Miss Bridget Francis wishes to pursue the matters stated in the correspondence by way of complaint about the conduct of the pre-hearing review, about the circumstances in which the order for the deposit was made, about requests for extension and failures of communication, the appropriate course is not by way of an appeal to this Tribunal, which is limited to questions of law. The appropriate course is to seek from the Tribunal itself a review of the decisions. The power of a Tribunal to review its decisions is not confined to questions of law. It is not for us to say whether the Tribunal is prepared to grant such a review. That is a matter for the Tribunal. All we can say, as far as we are concerned, is that there are no grounds in law for appealing the order. The appeal is therefore dismissed.