United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MRS J WADE (Solicitor) Warner Cranston Solicitors Pickfords Wharf Clink Street London SE1 9DG


 


JUDGE PETER CLARK: The appellant, Mr Paul Baden was employed by the respondent as a consultative forum worker from 14th February 1995 until his dismissal on 23rd May 1996.

On 9th August 1996 he presented an Originating Application to the Industrial Tribunal containing complaints of unfair dismissal, wrongful dismissal and unlawful sex discrimination. He gave no particulars of those complaints in his form IT1.

In a covering letter enclosing the respondent's Notice of Appearance, solicitors for the respondents pointed out that the appellant had insufficient qualifying service for unfair dismissal protection and sought further particulars of all three complaints. They also in that letter asked for a pre-hearing review under Rule 7 of the Industrial Tribunal Rules of Procedure 1993.

On 18th October 1996 the tribunal made an order for the appellant to provide particular of his complaints and, after asking for an extension of time, the appellant delivered such particulars by a four page fax on 18th November 1996. The respondent's solicitors wrote to the tribunal on 4th December 1996 complaining that those particulars were inadequate. On 18th December 1996 the tribunal informed the parties that an interlocutory hearing for directions would take place on 17th January 1997.

On 23rd December 1996 the appellant wrote to say that he would be unable to attend the hearing on 17th January 1997, although he wished to do so. Apparently he was going to America on holiday that week.

On 17th January 1997 the directions hearing took place in the absence of the appellant. The Tribunal Chairman directed that a pre-hearing review should take place.

By letter dated 21st January 1997 the tribunal gave notice of a pre-hearing review to the parties to take place on 12th February 1997. That notice, which was received by the appellant, included Guidance Notes as to pre-hearing reviews.

The appellant challenged the order to hold a pre-hearing review by letter dated 22nd January 1997, and on 28th January 1997 the tribunal replied stating that the decision to hold a pre-hearing review was a matter for the tribunal's discretion and referred him to the Guidance Notes.

On 6th February 1997 he wrote to the tribunal stating that he would be unable to attend on 12th February 1997. On 7th February 1997 the tribunal replied to that letter, but the appellant says that he did not receive the tribunal's letter. In that letter the tribunal invited him to make written representations if he was unable to attend.

On 10th February he wrote to the tribunal asking that the date of the pre-hearing review be changed and to the respondent saying he would not be attending on 12th February.

Pre-hearing Reviews

The pre-hearing review procedure was introduced by Rule 7 of the 1993 Rules of Procedure to replace the former Preliminary Hearing Assessment procedure.

It has tightened up the earlier procedure in that a party may be ordered to pay a deposit in a case in which a Chairman finds that his claim or defence has no reasonable prospect of success. Failure to pay the deposit will result in the claim or defence being automatically struck out.

A pre-hearing review may be ordered by the tribunal of its own motion or on the application of a party. Here, the respondent applied for a pre-hearing review.

At the pre-hearing review the Chairman considers the contents of the pleadings and any oral and/or written representations advanced by or on behalf of the parties. If the Chairman considers that the claim or defence has no reasonable prospect of success it may order a deposit of up to £150.00 as a condition of continuing to take part in the proceedings. In ordering a deposit the Chairman must first take reasonable steps to ascertain the ability of that party to pay the deposit.

The Guidance Notes sent out to the appellant on 21st January summarise the rules. In particular we should read from the Guidance Note:

(1) No oral evidence will be taken. The Tribunal will consider the contents of the Originating Application and Notice of Appearance; any representations in writing which have been submitted; and any oral argument advanced by or on behalf of a party.

(2) If the Tribunal considers at the pre-hearing review that a party's case has no reasonable prospect of success, it may order that party to pay a deposit of up to £150.00 as a condition of being able to continue to participate in the case. When doing so, the Tribunal will take into account whether the party against whom the Order is being made is able to comply with it.

The Orders

At the hearing on 12th February the Chairman considered the pleadings, including the particulars delivered by the appellant on 18th November 1996, and oral representations made by Counsel on behalf of the respondents. The appellant did not attend nor did he submit further written representations, particularly as to his means.

The Chairman concluded that the claims had no reasonable prospect of success and ordered the appellant to pay a deposit of £100.00 within 21 days of the order. Summary reasons for the order, required under Rule 7(6), are dated 14th February 1997. The Chairman also gave certain directions for the future conduct of the case, on the assumption that the deposit would be paid.

The appellant did not pay the deposit within the time ordered, and accordingly his claims were struck out on 24th March 1997.

On 21st March 1997 the appellant entered a Notice of Appeal against the Chairman's orders made on 12th February 1997.

The Appeal

Interlocutory appeals are no different from substantive appeals. We can only interfere with such orders if it is first shown that the Chairman has erred in law. Medallion Holidays Ltd v Birch [1985] IRLR 407. The power to order or refuse postponements of hearings is contained in Rule 13(7). The principle which we apply when considering appeals against such orders is set out in the judgment of Arnold J in Bastick v James Lane Turf Accountants Ltd [1979] ICR 778, 782, where he said:

"... Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That statement of the law was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918.

Mr Baden's principal submission is that the pre-hearing review ought not to have gone ahead in his absence. He was due to attend a final hearing in High Court proceedings relating to his children fixed for 13th and 14th February; he had to attend conferences with is Counsel and solicitors and witnesses in relation to those proceedings on the days preceding the family hearing. He wished to attend the pre-hearing review in order to make oral representations. All of this was explained to the Industrial Tribunal in correspondence. Natural Justice required that he attend the hearing. Why could it not be postponed until he was free of his important commitment in the High Court?

Had he been able to attend, he would have been able to persuade the Chairman that his complaints of sex discrimination and wrongful dismissal were not without any reasonable prospect of success.

In our judgment an Industrial Tribunal Chairman must balance the needs of the business of the Industrial Tribunals which deal with very many cases in the course of the year, with the interests of the parties in an individual case. Here, the appellant could have attended on 12th February, or he could have put in writing representations to be considered by the Chairman, as the Guidance Notes make clear. He did neither. He had put his case on paper in his particulars dated 18th November 1996, running to four pages. That document was before the Chairman when she considered the case at the pre-hearing review stage. The interests of the respondent must also be taken into account. They had asked for a pre-hearing review on 26th September 1996. They wished to get on with the matter. They were ready to go. All of these matters, it was for the Chairman to balance.

Further, it was for the appellant to inform the tribunal of his means. He could have told them that he was on Income Support and unable to pay a deposit. He did not do so prior to 12th February 1997.

In all these circumstances we are quite unable to say that the tribunal's decision to proceed with the pre-hearing review on 12th February in the absence of the appellant was perverse. Accordingly, this appeal must be dismissed.