United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS Y GENN (of Counsel) Deighton Guedalla Solicitors Top Floor 30-31 Islington Green London N1 8DU
For the Respondents	MR P EDWARDS (of Counsel) Lambeth Legal Services Town Hall Brixton London SW2 1RW


 


JUDGE PETER CLARK: By an Originating Application presented to the Central Office of Industrial Tribunals on 22nd December 1994 the applicant, Ms Jane Blandford, brought a complaint of unlawful sex discrimination and breach of contract against the London Borough of Lambeth ["Lambeth"].

She had commenced employment with Lambeth in May 1981, and the substantive issue in the case revolves around a maternity leave policy operated by Lambeth when the applicant took maternity leave in 1984 called the Five Year Option. That is to say, an option to return to employment with Lambeth up to five years later.

We are concerned in this appeal not with the substantive issues arising, but with latest interlocutory round between the parties.

The procedural history of this case, which is proceeding, slowly, in the London (South) Industrial Tribunal is, so far as is material as follows. On 18th August 1995 a Chairman, Lt. Col, D W H Brayden held a directions hearing. At that hearing he made certain interlocutory orders including (1) that Lambeth answer certain questionnaires within 14 days; (2) that Lambeth provide inspection of its list of documents with 28 days, and (3) that Lambeth answer three specific questions posed by the Chairman. These orders were contained in an interlocutory order dated 13th September 1995.

Thereafter the applicant's solicitors complained that Lambeth had failed to comply with the Brayden Order by their answer dated 9th October 1995. On 9th July 1996 the Industrial Tribunal gave Lambeth 14 days to comply with that order. On 24th October 1996 the applicant's solicitors applied for a debarring order under rule 4(7) of the Industrial Tribunal Rules of Procedure. That application came before a second Chairman, Mr John Warren, on 2nd December 1996. He made the order sought.

Against the Warren Order Lambeth appealed. That appeal came before a division of this Appeal Tribunal presided over by Lindsay J on 20th May 1997. The appeal was allowed. The debarring order made by Mr Warren was lifted. Directions were given by this tribunal as to the future conduct of the case. We quote from the order of the Employment Appeal Tribunal:

"THE TRIBUNAL DIRECTS that Lambeth is to have until the 30th day of May 1997 to consider any remaining deficiencies in its compliance with the Order of the 18th day of December 1996 [sic] to make good the deficiencies that it sees as still existing.

THE TRIBUNAL FURTHER DIRECTS that Lambeth is to have until the close of business 4.30pm on the 30th day of May 1997 to make good those deficiencies and also in so far as there are failures to comply which it is not able to make good but which it feels it has an explanation for it is by 4.30pm on the 30th day of May 1997 to supply to Deighton Guedalla [the applicant's solicitors] an affidavit or affidavits setting out every reason which Lambeth would wish to advance for failing to comply with the Order of the 18th day of August 1995.

THE TRIBUNAL FURTHER DIRECTS that if Deighton Guedalla feel that compliance is inadequate or unexplained or unsatisfactorily unexplained Deighton Guedalla are at liberty by 4.30pm on the 16th day of June 1997 to apply afresh to the Industrial Tribunal for a Striking-Out or Barring Order and when they apply to the Industrial Tribunal they must also send a copy of their letter to the Industrial Tribunal to Lambeth's present advisers and before the 2nd Striking-Out or Barring hearing Deighton Guedalla are to send particulars in writing to Lambeth at least 4 working days before the hearing specifying what defects still remain or are inadequately explained at that further hearing."

We should also refer to a passage in the judgment of Lindsay J which appears in the transcript at page 12D-G:

"Before the hearing of that second striking out or barring hearing (if there is one) Deighton Guedalla are to send particulars in writing to Lambeth at least four working days ahead of the hearing specifying what defects, in their view, still remain or are inadequately explained. At that further hearing, if there is one, the Industrial Tribunal will be liable to treat as a deliberate and wilful failure any failure which existed as at 30 May 1997 and which was not, in the view of the Industrial Tribunal, satisfactorily explained in the evidence, if any, which Lambeth had supplied to Deighton Guedalla by the 30th or on 30 May 1997.

In other words, we are moving towards something like an "unless" order, without it being quite so framed. Deighton Guedalla would be at liberty to adduce evidence at the second strike-out or barring application of prejudice to a fair trial which they would wish to have considered by the Industrial Tribunal and, if evidence of that kind is adduced by Deighton Guedalla on Ms Blandford's behalf, then, of course, Lambeth would be at liberty to reply to it."

On 30th May the respondent wrote the applicant's solicitors in purported compliance with the Employment Appeal Tribunal Order and served an affidavit sworn by their solicitor, Ms Walsh. That was followed by further steps taken by letter dated 5th June and service of computer generated lists of employees in response to the Brayden Order on 27th June. The applicant's solicitors were not content. They reinstated their application for a debarring order and on 2nd October 1996 served a document headed Particulars of Defect, setting out each and every breach of the Brayden Order which it was alleged continued, and the resulting prejudice suffered by the applicant.

That application came before a third Chairman, Mr D M Booth, on 9th October 1997. He dismissed the applicant's application for the reasons promulgated on 17th October. Now the applicant has in turn appealed to this tribunal against the Booth Order.

The Appeal

Ms Genn's principal submission on behalf of the applicant is that the Chairman, Mr Booth, erred in law or misdirected himself by failing to follow the Employment Appeal Tribunal direction as to the future conduct of any further strike out or debarring hearing held on the applicant's application on the grounds that Lambeth had failed to comply with the time-table laid down by the Employment Appeal Tribunal on 20th May 1997.

She submits that the use of the words in the judgment of Lindsay J "At that further hearing, if there is one, the Industrial Tribunal will be liable to treat as a deliberate and wilful failure any failure which existed as at 30 May 1997" amount to a direction from a superior court, the Employment Appeal Tribunal, to an inferior court, the Industrial Tribunal, requiring the Industrial Tribunal to adopt the following approach at any such future hearing:

(1) was there any failure to comply with the Employment Appeal Tribunal's order as at 30th May 1997?

(2) if so, was that failure satisfactorily explained?

(3) if not, that failure was to be treated as deliberate and wilful for the purpose of making a debarring order.

She has categorised the Employment Appeal Tribunal's direction as an unless order.

Turning to the reasons given by Mr Booth for declining to debar the respondent from defending, she complains that he has not focused only on failures by Lambeth as at 30th May 1997, but has also taken into account further attempts at compliance up to the date of the 9th October hearing. Further, he has failed to go through the Particulars of Defect relied on by the applicant, ruling on each and every allegation there made, and making an assessment of the quality and quantity of defects there set out, judging them as at 30th May 1997.

We return to the Employment Appeal Tribunal Order and judgment of Lindsay J. It was not an unless order. Lindsay J said so in terms. The Employment Appeal Tribunal were moving towards something like an unless order. However, it was treated as an unless order by Mr Booth. That is, if anything, an approach favourable to the applicant.

Did the Employment Appeal Tribunal purport to fetter the discretion of the Industrial Tribunal which might be called on to hear a further application to debar Lambeth from defending? We think not. All that Lindsay J was saying, in our view, was that if Lambeth failed to comply with the original Brayden Order by 30th May without adequate explanation they would be liable, that is, they were likely to be treated as being guilty of deliberate and wilful failure leading to a second debarring order. That was a stern warning to Lambeth particularly in view of the history of this case. It was not a direction as to how a future Industrial Tribunal must exercise its undoubted discretion at a subsequent hearing. In particular, we do not understand the Employment Appeal Tribunal to have been saying that any future Industrial Tribunal must disregard any subsequent attempts to comply with the original order between the 30th May and the date of any future debarring hearing.

It is on that basis we consider Mr Booth's reasons for declining to take the draconian step of debarring Lambeth from defending. It is clear that he took into account the detailed Particulars of Defect. It is not necessary for an Industrial Tribunal Chairman to set out each and every contention raised by the parties at the hearing in his written reasons. Ms Genn has taken us to certain of those particular in detail. We do not propose to rehearse them in this judgment. Quite simply, it is not for us to substitute our judgment for that of the Chairman below.

Having considered the test to be applied in judging appeals against interlocutory orders to be found in Adams & Rayner v West Sussex County Council [1990] IRLR 215, and the approach to be taken in considering striking out applications in National Grid Co PLC v Virdee [1992] IRLR 555, we are unable to say that the conclusion reached by Mr Booth is flawed in law. He reached a permissible conclusion on the material before him that the respondent was not guilty of intentional and contumacious default since the Employment Appeal Tribunal Order. It had done its best to comply with the Brayden Order. In these circumstances, we infer, he was satisfied that a fair trial of the action was possible.

In these circumstances, this appeal is dismissed.