United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This is an interlocutory appeal by the employer, Viking Trailers Ltd, the respondent before the Manchester Industrial Tribunal to a complaint of constructive unfair dismissal brought by the applicant employee, Mr Walker. We shall use those descriptions of the parties in this judgment.

Background

The applicant was employed by the respondent as a plater from November 1993 until he quit the employment on 3rd March 1997.

On or shortly after 24th April 1997 he presented his Originating Application to the Industrial Tribunal. Under the heading "details of your complaint" he said this:

"1. I was employed as a plater by Viking Trailers from November 1993 until my 'resignation' on 3rd March 1997.

2. Following an incident approximately two weeks before my resignation, I got a caustic soda splash in my right eye which necessitated a visit to hospital. This incident, together with my general dissatisfaction at the measures taken to ensure health and safety at my workplace, made me realise that to continue to work under such conditions could prove to be extremely harmful to me.

3. Following my resignation, I reported the matter to the Health & Safety Executive in Manchester on the 13th March and they have subsequently advised me that they will be inspecting the premises.

4. I claim to have been unfairly constructively dismissed."

On 19th May the respondent entered a Notice of Appearance, resisting the claim. It is there pleaded that the respondent had received no complaint from the applicant concerning unsatisfactory health and safety measures during the employment. The constructive dismissal is denied.

On 27th May 1997 the Industrial Tribunal sent out a Notice of Hearing to the parties. The substantive hearing of the complaint was fixed for 20th June 1997.

On 28th May the respondent's solicitors sent a letter to the applicant's representative enclosing a Request for Further and Better Particulars of the Originating Application, designed to elucidate the nature of the applicant's "general dissatisfaction at the measures taken to ensure health and safety at my workplace." The letter required those particulars within 14 days, failing which an application would be made to the Industrial Tribunal for an order.

By letter dated 3rd June the respondent's solicitors wrote to the Industrial Tribunal acknowledging the Notice of Hearing. The letter continued:

"We apply for an adjournment of that Hearing having, on 28th May, served the Applicant with a Request for Further and Better Particulars of his claim. a copy of which is enclosed. No reply has as yet been received.

The Respondent is unable to prepare for the Hearing until it knows of the matters to which it must answer.

Kindly confirm the matter will not be re-listed until at least twenty one days after our receipt of satisfactory answers.

Subject to the above in the event that satisfactory answers are not received by 14th June we shall make application to the Tribunal for an order that they be forthcoming."

On 6th June the Industrial Tribunal replied to that letter, stating:

"Your request to postpone the hearing has been considered and is refused as, in the opinion of the Chairman, the claim is adequately pleaded and further and better particulars are unnecessary.

The case will remain in the list for hearing on 20 June 1997."

On 11th June the respondent entered Notice of Appeal against the Chairman's order of 6th June.

On 12th June the applicant's representative wrote to the respondent's solicitors stating that instructions were being taken from the applicant on the Request for Further and Better Particulars of the Originating Application, and that the applicant wished the case to proceed on 20th June.

We pause to observe that no point was taken by the applicant's representative as to the propriety of the respondent's request and, further, that despite the applicant wishing the matter to proceed on 20th June, no particulars have as yet been provided.

Interlocutory Appeals

We can only interfere with interlocutory orders made by an Industrial Tribunal Chairman where an error of law in made out. Medallion Holidays Ltd v Birch [1985] ICR 576. That will normally require a finding that the Chairman has failed to take into account a relevant factor or taken into account irrelevant matter in reaching his conclusion, or that the conclusion is perverse. Bastick v Lane [1979] ICR 778, 782.

Further and Better Particulars

Rule 4(1)(a) of the Industrial Tribunal Rules of Procedure 1993 provides:

"4.-(1) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion-

(a) require a party to furnish in writing to the person specified by the tribunal further particulars of the grounds on which that party relies and of any facts and contentions relevant thereto."

In Byrne v The Financial Times Ltd [1991] IRLR 418, paragraph 18, Wood J set out certain general principles affecting the ordering of Further and Better Particulars including:

"... that the parties should not be taken by surprise at the last minute; that particulars should only be ordered when necessary in order to do justice in the case or to prevent adjournment; that the Order should not be oppressive; that particulars are for the purposes of identifying the issues, not for the production of the evidence; and that complicated pleadings battles should not be encouraged. Indeed, justice is not infrequently achieved by limited, though sufficient, pleadings followed by a hearing at which any problems which arise can be dealt with by adjournment or further interlocutory Orders, together in any event with a sanction of costs."

The appeal against the Chairman's refusal to order Particulars in that case was dismissed on the grounds that no error of law in the exercise of his discretion had been made out.

We note that the Employment Appeal Tribunal decision in White v University of Manchester [1976] ICR 419 was not referred to in the judgment in Byrne. In White an appeal against the Chairman's refusal to order Particulars was allowed.

After setting out the Chairman's reasons for refusing the application for Particulars, namely:

"... The whole purpose of the tribunal is that they should be of an informal nature, and all the points raised can be disposed of when the hearing takes place."

Phillips J said this at 421H-422B:

"Again that is good as far as it goes, but it overlooks the fact that the almost certain outcome of the refusal to make the order in a case such as the present one, which is of a certain complexity, would be that the employee would not know the details of the case which she had to meet with sufficient particularity to be able to prepare her answer to it. Inevitably, therefore, there would be an application for an adjournment at the end of the employers' case upon the hearing of the application, so that the employee could take time to prepare a case in answer to the case being put forward by the employers, which would then for first time only have become apparent to her. That would be wholly unsatisfactory for a number of reasons: first, it would lead to a protracted hearing and to increased delay; secondly, it would lead to increased cost and expenditure. Industrial tribunals have no power to award costs, and the employee, if she had succeeded, would have been put to considerable expenditure for no good purpose, and which she would have no opportunity of recovering as the costs of the application."

In our judgment the prospects of the respondent in this case recovering any costs if an adjournment of the hearing fixed for 20th June proved necessary is remote.

The Appeal

The respondent submits, in written representations, that it is entitled to know sufficient details of the central allegations made by the applicant in order to know what case it has to meet at the hearing. Following the approach of the Employment Appeal Tribunal in White we think that must be correct.

In our judgment the Chairman's conclusion that this case is adequately pleaded is 'certainly wrong', to borrow one of the perversity expressions helpfully collected by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, paragraph 33, for the reasons given by Phillips J in White. In particular, we do not regard it as satisfactory that this matter should proceed to a hearing at which an application for an adjournment by the respondent will be almost inevitable after the applicant has given his evidence. It is simply not realistic to expect the respondent to anticipate what case this applicant will advance, and to have the necessary evidence available to counter it, in the absence of proper advance warning by way of Further and Better Particular of the Originating Application.

Accordingly we shall set aside the Chairman's order and, pursuant to our powers contained in s.35 of the Industrial Tribunals Act 1996, we shall direct that the date fixed for hearing of 20th June 1997 be vacated and order that within seven days of the date of this order the applicant shall provide those Further and Better Particulars of the Originating Application requested at paragraphs 1, 2, 3 and 5 of the respondent's request dated 28th May 1997. We consider that the request numbered 4 is misconceived; it is not alleged that the relevant conditions have been harmful, but that they could be harmful.

Thereafter, the case may be relisted not less than 14 days after the date of service of those particulars by the applicant.