United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M KALLIPETIS QC (ELAAS)
For the Respondents


 


MR JUSTICE KIRKWOOD QC: This is the Preliminary Hearing technically of two appeals by an employee against Orders for Directions made by an Industrial Tribunal.

In August 1995 the employee, Mr Nakatani, complained to an Industrial Tribunal of unfair dismissal, redundancy, a trade union membership right, sex discrimination, written reason for dismissal, itemised pay statement and notice of dismissal. By its appearance, the employer, The Japanese School Limited, said that Mr Nakatani had been employed as a Saturday school teacher, that his immigration status at the time was that of a student and with permission to take free-time employment until 31 October 1989, or as long as his stay in the country as a student was approved.

In 1994 the Respondent conducted a review of staff who held student immigration status. Mr Nakatani was asked to verify his immigration status as his original document seemed to have expired. He refused to supply those. There was a formal disciplinary hearing and his employment was terminated with effect from 31 May of that year.

The Respondents put in issue the trade union claim saying that the staff organisation was not a trade union, there were no trade unions recognised by the Respondent. They put in issue his redundancy claim. They said his sex discrimination was not substantiated. They enclosed an itemised pay statement and said that he was not entitled to notice.

So by those IT3 there were certain key matters that put in issue.

It appears that in March 1996, Mr Nakatani was ordered by the Industrial Tribunal to provide to the Respondents' Solicitors' office his police registration certificate and passport. Those Solicitors said they did not get it. Mr Nakatani contended that he had sent all he was required to send by recorded delivery letter. On 24 July 1996, the Industrial Tribunal had a hearing about that and gave Reasons for Decision on 9 August 1996. In those reasons the dispute was rehearsed, (what each side said), and the Industrial Tribunal concluded that the earlier order had not been complied with and the Originating Application alleging unfair dismissal was struck out.

Mr Nakatani appealed against that striking out order. Meantime, on 15 January 1997, the Industrial Tribunal had a further hearing and made the decision, giving its reasons on 5 February 1997. The Tribunal was by then satisfied that Mr Nakatani had produced proof of his immigration status. In those circumstances the striking out order of 9 August 1996 was set aside.

However, the Tribunal made further directions to which I shall return. It is those further directions which form the basis of Mr Nakatani's second appeal.

The first appeal came before the Employment Appeal Tribunal on 25 June 1997 for a Preliminary Hearing. The decision on that occasion was that the appeal be adjourned generally, with liberty to restore. Whether or not the Appeal Tribunal had before it, on that occasion, the information that the order appealed against had already been set aside is not completely clear. If it had that information it is perhaps surprising that the Tribunal did not on that occasion dispose of the appeal before it.

However that may be, the appeal was adjourned and on 7 October Mr Nakatani asked for that appeal to merged with the appeal presently before us against the Order for Directions of 5 February 1997.

That first appeal, EAT/1108/96, is, therefore, technically alive, but of no significance or relevance in view of the fact that the order appealed against has been satisfied and, for the sake of tidiness and finality, that appeal will be dismissed.

That leaves the second appeal before us. By the first order of 5 February 1997, the Industrial Tribunal purported to make an order for further and better particulars of the Originating Application. By the second order made, Mr Nakatani was ordered within 21 days to produce evidence of his activities in respect of an independent trade union as defined in the relevant legislation; failing which, his claim that he was dismissed by reason of trade union membership would be dismissed. That direction plainly goes to the issue of whether this was a trade union involvement case or not. It is plainly material to the issues raised in the pleadings and, in fact, Mr Nakatani indicates that he has complied with it.

The third order was to produce, within 21 days, full details of the allegation that he was dismissed by reason of breaches of the Sex Discrimination Act 1975. That seems to us to be an unexceptionable order and plainly one going to the issues in the case and requiring particulars. Mr Nakatani says, I think, that that has been complied with.

The fourth order was for Mr Nakatani within 21 days to give full details of any amendment he wishes to make regarding any claim under his contract of employment and, if necessary, to apply for leave to amend his Originating Application.

It seems to us that the plain purpose of that direction was to define the issues in the case relating to the breach of contract claim and was a perfectly proper one to make. Mr Nakatani indicates that he has complied with that.

So far as 2, 3 and 4 are concerned, we are able to find no possible argument on the basis of which those can be challenged upon appeal. We dismiss the appeal in relation to them. Mr Nakatani tells us, as I have indicated, that he has complied with those. Whether he has made sufficient compliance with them is a matter not for us to decide but for the Industrial Tribunal.

That leaves the first order. The actual order drawn reads:

"The Tribunal orders that on or before 26 February 1997 the Applicant shall supply in writing to this office and the Respondent the following particulars of the Originating Application:

Confirmation from the Home Office or the Japanese Embassy that on 31 May 1995 you were legally entitled to seek and obtain employment in the United Kingdom."

Mr Nakatani's argument about that is that he has disclosed his new passport, he has nothing else by way of confirmation to disclose. He says that the Industrial Tribunal had no power to order, by way of particulars or, indeed, otherwise, the production of a document he does not have and so that is an improperly drawn order. We are referred to Rule 4 (1) in the first Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations, 1993.

It seems to us that, as a matter of technicality, Mr Nakatani has an argument on paragraph 1 of the order. The purpose of the Industrial Tribunal was, it seems to us, quite plain, that they wanted Mr Nakatani to put on the table, in due time, any document upon which he was going to rely, upon the issue of his entitlement to work in 1995, rather than have a document produced at the 11th or 12th hour. There is, as we think, an argument that the Industrial Tribunal did not go about it in the right way; therefore with, I have to say, some reluctance, recognising that a sledgehammer is perhaps being taken to crack a nut, we allow the appeal to go for a full hearing on that point and that point alone.

The decision I have just given will be transcribed and will be available to the EAT hearing the full appeal.