United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 996_95_1210

Appeal No. EAT/996/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th October 1995

THE HONOURABLE MR JUSTICE MORISON

MRS E HART

MISS C HOLROYD

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MR P PANCHANATHAN          APPELLANT

THE COMMISSIONER OF POLICE FOR THE METROPOLIS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON


 


MR JUSTICE MORISON: Mr Pachanathan, whom I will call, if I may, the `appellant', presented an application to an Industrial Tribunal on 28th July 1994. That application contained in Box 1 the following:

"(1) Equal Pay and Promotion

(2) Less favourable treatment

(3) Discrimination by way of victimisation"

In Box 3 of that application was listed the CPSA, a trades union, together with the name of a representative, Mr Duggan, and a telephone number.

Paragraph 10 of the IT1 form enables an applicant to give full details of his complaint. In this case Mr Panchanathan, the appellant, said this:

"I had worked in the Administrative Officer's post from 1.7.91 as Assistant CROWN COURT CASE CLERK. According to Rules of Sex Discrimination and Employment Act I should have been promoted as Administrative Officer when Mrs A Litchfield was promoted. I was continually overlooked for promotion and less able, younger people were given the opportunity to apply for advancement. I invoked the Grievance Procedure on 20.1.94. I am being victimised for working the Grievance Procedure. All of them made me Sick (Acute STRESS REACTION). GP is at Stage 4 now."

That application is dated the day before it was presented.

The appellant's employers was the Metropolitan Police. They put in an answer to that application, saying amongst other things, that they were unable to respond in full to what had been alleged against them until after they had certain further information from him. They also in addition said that part of his application was out of time.

That Notice of Appearance was accompanied by a "Request for further and better particulars of the Originating Application". Amongst the requests which were made were of the words: "I was continually overlooked for promotion and less able, younger people were given the opportunity to apply for advancement":

"(i) Please identify each occasion on which you say you ought to have been promoted but were not;

(ii) Please identify all the "less able, younger people" you are referring to and the occasions on which they were given the opportunity to apply for advancement."

Then the document continues:

"5. Of "I am being victimised for invoking the Grievance Procedure"

(i) Please identify what action by or on behalf of the Respondent you say constitutes victimisation;

(ii) Please state the legal basis of your complaint of victimisation."

An order was made for the delivery of those particulars on 3rd March 1995. A Tribunal has power to make such an order under Rule 4 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993. It seems to us that no complaint could be legitimately be made against that decision of the Industrial Tribunal because it is manifest from what I have already read, that no proper hearing of this case could take place until after those further details had been provided.

A further order for particulars was made at the Interlocutory Hearing on 7th June 1995. He was also at that time, ordered to give full particulars of race discrimination claim if he wished to do so.

Within the time provided by those Orders, the appellant did not make a response which was compliant with the Order. Accordingly the appellant was required to show cause why his application should not be struck out.

The appellant did not provide any satisfactory explanation in the Tribunal's view for his non-compliance. Accordingly, in the exercise of their powers, the whole of his originating application was struck out and therefore his application was dismissed.

Sub-rule 7 of Rule 4 empowers a Tribunal who has made such a order, to strike out the whole or part of an originating application, and where appropriate, make a direction where the response is being struck out, that a respondent be de-barred from defending altogether. Then it continues:

"... but a tribunal shall not so strike out or direct unless it has sent notice to the party who had not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

There is no complaint in this case by Mr Panchanathan, the appellant, that the Tribunal failed to comply with that requirement.

The appellant then asked the Tribunal to review its decision, and on 17th August 1995 under the provisions of Rule 11(5) the Tribunal Chairman refused to hold a review.

Against the decisions of the Industrial Tribunal the appellant has presented appeals.

It is his case that unrepresented persons should be given assistance in the presentation of their complaints. He says rightly, that in booklets provided by the Industrial Tribunal reference is made to such assistance being available. He has told us this morning, that he could not get either the EOC (Equal Opportunities Commission) or a solicitor to act for him in this matter, without requiring a payment to him of some £6,000, was the figure he mentioned. He says that the CAB (Citizen's Advice Bureau) to whom he turned were not willing to offer him assistance. He also says that the Commission for Racial Equality failed to give him proper assistance. Accordingly, he says, the Industrial Tribunal ought not to have struck out his claim, but given him further time for complying with the orders, because he was an unassisted person who had sought but had failed to obtain help.

The purpose of this hearing has been to determine whether the appellant has shown by his Notice of Appeal an arguable point of law. If he does then the matter must go to a full hearing, if not, then we have power to strike out this appeal and dismiss it.

There are two matters about which the appellant complains.

Firstly he says, that the Industrial Tribunal did not have any power to dismiss his claim at an interlocutory stage. He bases that submission, I think largely, on a misunderstanding of what the passage in the booklet concerned is referring to. The passage upon which he relies refers to the powers of an Industrial Tribunal at a pre-hearing review under Rule 7 of the Rules rather than an order made under Rule 4. There is no reason to believe that it is arguable that the Industrial Tribunal had no power to make the order which they did in this case.

The second ground of appeal which the appellant would wish to argue, is that the exercise of its discretion by the Industrial Tribunal was perverse or wrong in law or so unreasonable that we should interfere with it. He says that the no Tribunal should have struck out his claim without giving him further time.

We have to say that we do not agree. It is, it seems to us, of the essence of Tribunal applications of this sort, that they should come on for hearing on the merits as soon as is practicable. But if a complainant makes a complaint which he is completely unable to particularise and justify, then it is not in the interests of justice that such a complaint should go ahead. Mr Panchanathan has presumably had the benefit of advice from his union, has sought advice from the three other organisations to which I have referred.

It seems to us that extending time for an unlimited period until he might be in a position to provide some of the particulars, was not a decision which the Industrial Tribunal would reasonably or should reasonably have made.

We can only interfere with the exercise of a discretion of an interlocutory nature, if it can be shown that there has been a manifest misdirection in law. We are not persuaded by Mr Panchanathan that he has been able to show an arguable case to that effect.

Accordingly we have no alternative but to say that his appeal does not fall within the competence of this Employment Appeal Tribunal, and it should be dismissed.