At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BELL
MRS T A MARSLAND
MR J A SCOULLER
MR E HARRY |
APPELLANT |
RESPONDENT | |
MR E HARRY |
APPELLANT |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING - EX PARTE
For the Appellant | THE APPELLANT IN PERSON |
MR JUSTICE BELL: This is a preliminary ex parte hearing in relation to a number of appeals by Mr Errol Harry. Between 1992 and 1995 Mr Harry presented several applications against the London Borough of Southwark, various of its officers, employees and councillors; and one application against NALGO/UNISON, his trade union, and officers, alleging various acts of racial discrimination and victimisation.
There were a number of preliminary hearings. It appeared at one time that there might be some prospect of settlement. In any event, no steps were taken actually to list the cases. On 18th October 1996, a letter was written from the Industrial Tribunal's office to Mr Harry asking him to state within 14 days whether he wished "these cases" to proceed and warning him that if he did not reply a Chairman might strike them out. There was no reply. On 13th November 1996, the Chairman struck all Mr Harry's applications out for want of prosecution.
Mr Harry sought a review of that decision under Rule 11 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993, which the Chairman referred to a tribunal which heard evidence from Mr and Mrs Harry and submissions from Mr Harry and Counsel for the London Borough of Southwark on 15th April 1997. UNISON did not attend by any representative, and it may be that it was not given notice of the hearing. The unanimous decision of the tribunal was that the Striking Out Order be confirmed. In a nutshell the tribunal did not accept Mr Harry's explanation of why he did not respond to the October 1996 letter, but it held that, in any event, if he was out of the country at the time, as he alleged, he should have made arrangements for his mail to be opened. So there was no excuse for him not responding to the October 1996 letter. The tribunal stressed the importance of processing cases without undue delay, and saw no reason whatsoever to reverse the Chairman's decision to strike out made the previous November. The Industrial Tribunal's decision was dated 25th April 1997 and was entered in the Register on 29th April 1997.
On 8th May 1997 Mr Harry applied under Rule 11(1) of the 1993 Regulations for a review of the Industrial Tribunal decision of April 1997. By a decision to refuse a review, dated 3rd June 1997 and entered in the Register on 4th June 1997, the Chairman found that a Striking Out Order upon a review under Rule 11 did not fall within the definition of a decision as set out in Rule 2, and therefore, that the Industrial Tribunal's April decision could not reviewed. However, the Chairman went on to decide that even if he were wrong in his construction of the Rules, there were no grounds for review of the Industrial Tribunal's decision on the facts.
Mr Harry takes a number of detailed points in his Notices of Appeal, his written submissions and what he has said to us this morning, about what he sees as the injustice of his claims being struck out and in relation to the factual history. We have them all in mind, both in respect of the Southwark claims and the UNISON claim.
He takes two particular points of principle. The first is based on the fact that 18th October 1996 letter was headed with a reference to himself and Southwark Council & Others, and a case number 56879/92, which was one of the Southwark claims. Mr Harry contends that he was not put on notice that all his claims against Southwark and his claim against UNISON and some of its officers, were being considered for strike out. However, the UNISON claim was struck out by the Chairman on 13th November 1996 and that striking out remained in place as a result of the Industrial Tribunal's decision the following April, and the Chairman's decision further to refuse to review in June 1997.
I am afraid that we see no merit in the point which Mr Harry has made. In our view, the decision appealed against by Mr Harry must be taken to be the decision of the Industrial Tribunal in April 1997 reviewing the Chairman's decision of the previous November, which being a full Industrial Tribunal review decision, it superseded by making a formal decision that the Striking Out Order be confirmed. The same applies to the refusal to review in June 1997. That refusal cannot be impugned in our judgment unless the Industrial Tribunal's decision of the previous April could be impugned. Whatever may be said about the heading of the October 1996 letter which did refer to Southwark Council "& Others", and referred to "these cases" albeit only giving one case number, it is clear from the first paragraph of the April 1997 Industrial Tribunal's extended reasons, that it considered all Mr Harry's Originating Applications including the one against UNISON, even though UNISON did not attend, as we have said. The number of Mr Harry's Originating Application against UNISON and officers is, unsurprisingly in those circumstances, included among the numbers of the Southwark cases at the top of the decision. In our judgment, Mr Harry's contention that the Chairman of the Industrial Tribunal said early on that he was not dealing with the UNISON matter, is totally inconsistent with the terms of the extended reasons where that application is referred to, and with the number of the UNISON application at the top of the decision, and moreover, with the fact that the 12th February 1997 Notice of Hearing by the Industrial Tribunal included the number of the UNISON application.
The second point of principle put forward by Mr Harry is his contention that the review decision of the Industrial Tribunal in April 1997 failed to give consideration to evidence of correspondence from him at or about the end of January 1996 asking for cases to be listed. We do not think that the absence of any reference means that the Industrial Tribunal overlooked any reference to any such correspondence. We note that it was Mr Harry's own case that in April, which was only about three months after that letter, he went abroad and save for two short trips back to this country, remained abroad until November 1996. Even accepting for the purposes of this application that he did write about listing in January, it is quite clear from that behaviour, even on his own case, that he could have had no intention of pressing the cases to a prompt hearing. We have no doubt that the Industrial Tribunal would have had that matter in mind.
So far as the other points on the evidence are concerned, they are evidential matters where Mr Harry is seeking to rehearse on appeal to the Employment Appeal Tribunal the factual matters which he has raised or could have raised in the past. Those were all matters for the Industrial Tribunal to consider in the exercise of its discretion on whether to confirm the Striking Out Order or not. The essential point made by the Industrial Tribunal, put in ordinary language, was that if you want to complain, you must get on with your applications without delay. In our judgment, there was ample evidence upon which the Industrial Tribunal in April 1997, the Chairman in the previous November and the Chairman in the following June could base the decisions which they made. We see no point of law which merits a full hearing before the Employment Appeal Tribunal. For those reasons these appeals are all dismissed at this stage.