United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T LINDEN (of Counsel) Pattinson & Brewer 30 Great James Street London WC1N 3HA
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE KIRKWOOD: This is an appeal by a number of Appellants against the decision of the Industrial Tribunal sitting at Hull on 19 July 1995 striking out their applications under The Payment of Wages Act 1986 on the ground that they were frivolous and vexatious.

The Respondents' Notice of Appearance in the case indicated resistance to the claims on the basis, first, that they were out of time and, secondly, that they were without foundation.

The point taken in this appeal is that the Industrial Tribunal made the order it did on a Directions Hearing without any written notice and without any sufficient oral notice to enable the Appellants to argue their case.

It is necessary for us to make clear that the striking out order was made by the Industrial Tribunal of its own motion. The Respondent has written to the Employment Appeal Tribunal that it adopts the Industrial Tribunal's reasons, but does not wish to appear to argue the case before us.

The order of 19 July 1995 followed a long history. In April 1994 some 209 related applications complaining of unlawful deductions of wages were received by the Industrial Tribunal. The Respondent took the point that they were out of time so that the Tribunal had no jurisdiction. Furthermore, that two cases, on similar facts, had been rejected by the Tribunal. The Respondent asked for a Pre-Hearing Review.

The Appellants' trade union asked for a stay on the proceedings because the two cases already dealt with were to go on appeal to the Employment Appeal Tribunal.

In October 1994 the Appellants' trade union advised the Industrial Tribunal that the appeals in the two decided cases had been withdrawn and asked for a Directions Hearing on the 209 cases that had been stayed.

On 30 November a Directions Hearing took place. Both sides were represented. Detailed directions were formulated and sent out in a letter from the Tribunal dated 7 December 1994. They called upon the Appellants' representatives to marshall the case and make a series of written representations four weeks before the next hearing, as well as calling for an outline schedule of the means of each Appellant. A further Pre-Hearing Review was fixed for 3 April 1995.

On 9 March 1995 the Respondent's Solicitor wrote to the Industrial Tribunal enclosing a copy of a letter to the Appellants' Solicitor, because the Directions had not been complied with and the hearing date was approaching. Limited compliance with part of the Directions Order followed on 16 March. On 28 March 1995 the Respondent's Solicitors wrote again to the Industrial Tribunal saying that they only received the written representations on 20 March, well outside the time limit, so that they were, themselves, out of time with their written replies.

The Pre-Hearing Review took place on 3 April 1995. The Appellants' representative said that part of the matters complained of, that is in respect of holiday credits, were withdrawn and I quote from the Industrial Tribunal's Extended Reasons:

"1(p) ... if the Tribunal were to make an order for costs they would withdraw all. ..."

In the result, no order was made and a hearing was fixed for 13 June 1995. That turned out to be unsatisfactory for the Respondent and there was correspondence, the outcome of which was that the case was listed for Directions on 19 July 1995. As part of that correspondence there appeared a letter dated 6 April that had been sent out by the Appellants' representative to all the members at BP involved in the banked hours dispute. It read:

"You may now be aware that at the recent tribunal hearing I was successful in convincing the tribunal that BP had a case to answer and that we should be allowed to proceed without having to put forward a deposit on your behalf and without fear of costs being awarded against us if we lose."

In its Extended Reasons the Chairman of the Industrial Tribunal commented on that paragraph saying:

"One has to comment on that that was a somewhat 'rose tinted' view of what had taken place"

. The letter continued:

"However, that was the easy part. The difficult part was that each individual must identify the actual hours they lost from the banked hours system. This does not include the 22.5 hours holiday pay as we have conceded that this was paid as part of your lump sum for going on to individual contracts of employment. Our main argument relates to the deduction of banked hours either from those who had the full 22.5 hours, or those with less than the full amount who either have worked and not received payment or may have to work and will not receive payment.

Therefore you as an individual must identify the actual hours you had banked on 1 January 1994 and how many hours BP told you would be deducted and also the hours you may have been told you had to work to make up the shortfall. So please fill in the questionnaire attached.

I must stress that on the last communication I sent, of the 209 letters, only 55 people responded. I have to stress that unless I can identify the individual's actual loss then I cannot proceed. If you do not respond to this letter then your case will have to be withdrawn because you cannot argue with the tribunal for 'ifs' and 'buts', you must argue for actual loss so if you want a chance of winning this please respond. This you must do as a matter of urgency but no later than 19 May 1995.

PS Even if you have left you still qualify if you were at BP at the relevant time."

At the hearing on 19 July nobody attended to represent the Appellants. The Industrial Tribunal found the following:

"2. The original directions were not promptly complied with by the respondents (sic). It is clear from the letter, a copy of which is produced this morning, that even as late as 6 April 1995 the applicants' representative was not clear what the applicants were claiming, indeed whether or not they had a valid claim. He had clearly not had co-operation before from the majority of those he was representing; they had failed to respond to his letters. There has been no indication since as to what the applicants are precisely claiming.

3. The applicants have had the opportunity to be represented at a hearing this morning for all these matters to be dealt with. There is no doubt but that he was aware of the hearing and its purpose. The applicants' representative has not attended."

The Industrial Tribunal then reminded itself of its powers under Regulation 13 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 and in particular its power at any stage of the proceedings to make an order to be struck out or amended any originating application or anything in such application, on the grounds that it is scandalous, frivolous or vexatious. The Chairman of the Tribunal reminded himself of the words of Regulation 13(3), namely that the tribunal before making an order:

"... shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

In its conclusion the Tribunal said this:

"5. That opportunity has been given to that party this morning but the party's representative has failed to attend. Having regard to the long history of this matter which has put the respondent, no doubt, to some considerable expense it is clear that each of the applications can be regarded as vexatious and certainly, in the absence of any clear definition of what it is precisely that each applicant is claiming, it is clear that each application is also frivolous. For those reasons it is my intention now not to let this travesty continue any further but to order that each and every application is struck out as vexatious and frivolous."

Nothing we say should be taken in any way as indicating any view of ours about the merits. We are well aware that the Industrial Tribunal had a full understanding of the detail of the case and it may well be that upon a fully constituted hearing of the striking out question the same conclusion would be reached. We are however, concerned that no notice of the proposed striking out was given to the Appellants. Had their representative attended then it may well be that written notice could have been dispensed with. As it happened the Appellants' representative was not present due to an oversight on his part.

In those regrettable circumstances the Appellants were not in fact heard, nor did they in fact have the opportunity to be heard and, whilst we have sympathy with the Chairman, we are satisfied that the decision cannot stand.

We propose to remit this case to an Industrial Tribunal for a further Directions Hearing at which the question of striking out may be considered afresh upon appropriate notice.