United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MRS JUSTICE SMITH: This is a preliminary hearing of an appeal in a claim under the Wages Act 1986 and under the Sex Discrimination Act 1975 and Race Relations Act 1976. The history is long and somewhat complex.

The appellant, Mr Horsford, is black. He was employed as Equal Opportunities Officer by the respondents from October 1994 until March 1995 when he resigned. In May 1995 he lodged two complaints. The first under the Wages Act, alleged that the respondents had failed to pay him some £346 as sick pay, and had refused to pay him £175 to which he claimed to be entitled as an expense of accommodation as agreed, he claimed, under his contract.

His second complaint was that he had been discriminated against either on the grounds of sex or of race, or both, in that he had been refused permission to work part-time, or to work from home, or to work under flexi-time arrangements during a period in which he was suffering from illness and was experiencing family troubles. He complains that a female colleague was permitted to work in these flexible ways. He claim that this shows discrimination.

By the end of June 1995, the respondents had served their Notice of Appearance in which they denied the charges of discrimination. They offered to pay the claims under the Wages Act without any admission of liability. In September 1995 the respondents provided further and better particulars pursuant to the appellant's request.

It is not clear to us when the first hearing date was fixed. However, one fixed for late August 1995 was vacated at the respondents' request. At about this time it appears that the appellant wrote to the President of Industrial Tribunals, Judge Lawrence, to request that his case be transferred from Bedford to Nottingham where he lived, and that if it were not to be transferred a particular chairperson at Bedford should not sit on the case. The President declined to interfere in the matter, apparently saying that these were questions for the Regional Chairman at Bedford.

On 30th August 1995, there was a preliminary hearing at Bedford, but the appellant did not raise either of these issues. On 6th September 1995, the Regional Chairman wrote to the appellant asking him why he wanted his case to be moved to Nottingham and why he did not wish the particular chairperson to sit on the case. We have not see the appellant's reply, but it appears that the appellant must have considered the chairperson to be biased. Without in any way accepting the allegations, the Regional Chairman agreed that the chairperson named would not sit on the case.

The appellant's reason for requesting a transfer appeared to be that he intended to call as a witness a man who was a lay member of the panel at the Bedford Industrial Tribunal. In his response the appellant did not name the witness or say what relevance his evidence would have in the proceedings. The Regional Chairman asked for this information, and said that until it was forthcoming the case would remain in Bedford.

By October 1995 it appears that the respondent had asked for another adjournment of the hearing. We have not seen their letter of request; nor do we know their reasons. We have seen the appellant's response in which he complains strongly about the delay which he says is contrary to his interests. He said that he would not agree to further adjournments unless the case was transferred to Nottingham. He had not at this stage provided the name of the witness whom he wished to call, that is the witness who was a lay member of the panel. Nor had he explained the relevance of the proposed testimony.

The respondents' request for an adjournment was granted, and the parties were asked to provide suitable dates for a two-day hearing in November and December 1995. It then appears from our papers, that there was to be a hearing on 4th and 5th December 1995. It appears that that hearing was in fact convened and that the morning of 4th December was taken up with an application made by the appellant. After lunch he asked for a postponement of the hearing as he felt unwell. He complained of migraine. It appears that he produced some medical evidence that he had been suffering from stress or other nervous troubles in 1991. He also claimed that a witness he wished to call on the following day would be unable to attend due to ill health. The Industrial Tribunal gave the most careful consideration to his request, and gave him the opportunity to produce some up-to-date medical evidence. We do not know whether he did so, although it rather seems that he must have done, as the hearing was indeed aborted.

The next event which we are able to record, was that on 7th December 1995 the appellant wrote to the Industrial Tribunal saying that he wished to bring a claim under the Disability Discrimination Act 1995. One of the Chairmen wrote to advise him that the Act had not yet been brought into force. The appellant also on that occasion sought leave to serve a further questionnaire on the respondents. The Chairman dealt with this matter and also reminded the appellant that he had not yet replied to the letter in which he had been asked to name the lay member of the panel whom he intended to call as a witness. He was told that if he intended to call that witness, he must now provide the necessary information. It appears, although we have not seen the letter, that the appellant replied on 28th December 1995 making a further enquiry about the Disability Discrimination Act. On this occasion, he did provide the name of the lay member whom he proposed to call as a witness. On 9th January 1996 the Regional Chairman's Office wrote back to the appellant explaining yet again that the 1995 Act was not yet in force. The Secretary also asked whether the lay member, the proposed witness, had agreed to attend as a witness voluntarily, and advised him also as the need to justify a request for a witness order if one were to be sought. The Secretary also explained that the respondents were not under any duty to call any particular witnesses contrary to the appellant's apparent belief. With that letter, the appellant was sent correspondence from the respondents' solicitor in which it was suggested that the appellant's conduct was bordering on the vexatious. The appellant was given a gentle warning that his conduct in the proceedings might lead to an order for costs being made against him.

On 17th January 1996 the Industrial Tribunal office wrote inviting the appellant to show cause why his claim should not be struck out for want of prosecution, in particular for failing to reply to the tribunal's requests for information. On 24th January 1996 the tribunal wrote again asking for a reply to the question about the lay member. On 26th January 1996 the lay member wrote to say that he would only attend in pursuance of a witness order. The appellant sent a letter to that effect to the tribunal, but at the time he declined to make application for a witness order as he said it would be inappropriate for him to do so until such time as leave had been given to him to serve a further questionnaire on the respondents and the reply to that questionnaire had been seen and considered by him.

On 7th February 1996 in answer to a fax which we have not seen, the appellant said that he would not be available for a hearing on either 25th April, 16th to 31st May and 10th-27th June 1996. He also said that his representative from the Commission for Racial Equality would probably not be available to attend a hearing until July 1996.

Thereafter the problem in connection with the lay member rumbled on until eventually the appellant wrote to say that he did not intend to call that lay member.

On 19th February 1996 the appellant wrote to the tribunal asking for a temporary stay on the proceedings until July at least. He said that he was under pressure, and that the demands of the case were displacing other work. He said that he was only getting four hours sleep a night and could not deal with the case. He said that he would not be available to deal with correspondence until 27th March 1996, that was over one month ahead. The Industrial Tribunal wrote back asking for medical evidence to support his request for a stay.

The appellant promised to provide this medical evidence by about 5th March 1996. On 12th March 1996 he wrote to say that he had sent the medical confirmation requested. We have not seen that. On that date he also enclosed details of travel arrangements which he had booked. We have not seen those travel arrangements, but we understand that they showed that the appellant intended to travel abroad for four months from mid-March until mid-July 1996. He asked in that letter for confirmation that the case would be temporarily stayed.

On 13th March 1996 the Industrial Tribunal sent a letter by fax which comprised a notice requiring the appellant to show cause why his claim should not be struck out for want of prosecution. In particular, the letter referred to the appellant's responsibility expeditiously to prosecute and proceed with his claim. It invited him to justify the delay which would be caused to the proceedings if he were to go on holiday from 16th March to 16th July 1996. The letter invited him to provide his reasons why the originating application should not be struck out, and told him that his letter should reach the Industrial Tribunal office on or before Friday, 15th March 1996, that is only two days ahead. We observe that the appellant had given notice that he would be out of the country from 16th March 1996 which may have explained why such a brief time was allowed for the reply to be sent.

On that day, 13th March 1996, the appellant replied to the tribunal saying that he proposed to take a holiday to convalesce and to deal with family problems. The tribunal replied, quickly, asking him specifically whether the holiday was being take on medical advice. The appellant replied that he had taken the advice given in various publications of the British Medical Council and the British Psychological Society.

On 14th March 1996 the Industrial Tribunal wrote requiring the appellant to produce a medical certificate or note dealing specifically with the advice of his doctor relating to the proposed four month holiday. The tribunal required that a reply should be received by 15th March 1996. So far as we can see, the appellant's only response was to inform the tribunal that he proposed to appeal against the poor handling of the case and to send the full file of papers to the Employment Appeal Tribunal. He also indicated that he was appealing the decision requesting further information.

On 12th April 1996 he lodged a Notice of Appeal. It was dated 15th March 1996. In it he states that he intends to appeal from the following decisions of the tribunal, (a) the notice of 13 March 1996 and any decision to strike out the Originating Application. We interpose to say that the Notice of 13th March 1996 must have been the Notice requiring him to show cause why the case should not be struck out for want of prosecution, but of course no decision had been taken on that Notice; no hearing had taken place and no decision had been made. The Notice of Appeal continues that it is the intention to appeal against (b) the decision of the tribunal in their letter of 14th March 1996 to obtain a further medical certificate by 12 o'clock on 15th March 1996. In other words, the appellant seeks to appeal against the requirement of the tribunal that he should produce a medical certificate specifically dealing with the general practitioner's advice in relation to a four month holiday. The third matter against which the Notice of Appeal seeks to raise is (c) the tribunal's poor handling of the case.

We first observe that in respect of none of those three matters is there any decision either interlocutory or final from which an appeal could lie. The Industrial Tribunal Chairman, and particularly the Regional Chairman, is entitled under the procedural rules to conduct the pre-trial stages prior to the hearing of an originating application in such way as he thinks fit. The arranging of a hearing at which consideration is to be given as to whether a case should be struck out for want of prosecution is a matter which an Industrial Tribunal Chairman is entitled to arrange in his own discretion. It seems to us that bearing in mind the history to which we have referred at some length, this Industrial Tribunal Chairman was quite entitled to arrange a hearing or seek to arrange a hearing at which that matter would be considered and decided upon. That is all he has at present sought to do. No appeal could possibly lie against the notice of 13th March 1996, which simply invites the appellant to show cause why the case should not be struck out.

Similarly, with the second complaint, namely that the Chairman should not have required the appellant to produce a medical certificate. This, once again, is a matter entirely within the Chairman's discretion. He had been faced with a request for a four month adjournment which would plainly cause very serious delay in the conduct of this matter. The justification for it appeared to be medical, and yet no medical certificate had been provided, suggesting that so long a period of rest or recuperation was necessary. The medical certificates which had been provided plainly did not deal with that issue. This was a matter entirely within the Industrial Tribunal's Chairman's discretion, and in our view, his reaction to the request for the long adjournment and his request for this information were entirely reasonable.

So far as the third complaint is concerned, that the tribunal has handled the case poorly, there is no decision from which there could be an appeal. In any event, it is our unanimous view that this tribunal has shown great forbearance to the appellant in this case.

Further at the oral hearing this morning, the appellant has sought to raise additional matters which post-date the Notice of Appeal. In effect what he wants is for us to direct that this case should now proceed to a full hearing on the substantive issues without there being any consideration of the preliminary issues as to whether case should be struck out for want of prosecution. For the sake of completeness we should mention that since the original notice was sent requiring the appellant to show cause why the case should not be struck out for want of prosecution, a further notice has been said indicating to him that consideration will also be given to the question of whether his conduct of the case has been frivolous, scandalous and vexatious.

No hearing date has yet been fixed for that preliminary hearing. It seems clear to us and indeed the appellant has confirmed that this is so, that what he really seeks from this appeal is to avoid any such hearing. We must make it clear that we have no power to make any such order and even if we had, we would not think it appropriate to exercise such power. It seems to us that the Chairman's conduct of this case and his intention to hold this preliminary hearing is entirely reasonable.

Finally, the appellant has indicated to us today that he still wishes his case to be transferred away from Bedford and to be heard in Nottingham. We have no power to make any such order. It seems to us that the proper procedure will be that when the preliminary hearing takes place, and if his claim is not then struck out, he should then make a reasoned application to the Chairman for the hearing to take place in Nottingham. Whether that application is granted will be a matter within the discretion of the tribunal Chairman.

For all these reasons this appeal must be dismissed at this preliminary stage.