United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G D GOODLAD (Solicitor) Dennis Faulkner & Alsop Solicitors 6 Cheyne Walk Northampton NN1 5PT
For the Respondent	THE RESPONDENT NEITHER BEING PRESENT NOR REPRESENTED


 


MR JUSTICE KIRKWOOD: This is an appeal by an employer, the Two Shires Ambulance NHS Trust, from an interlocutory order made by a Chairman of Industrial Tribunals sitting at Reading on 5th June 1998. The decision appealed against was that there should be no separate preliminary hearing of the issue as to whether or not the allegations made by the complainant or any of them, have been presented to the tribunal out of time.

On 24th February 1998 Miss La Motte complained of sex discrimination and/or disability discrimination and/or victimisation in respect of matters that had arisen out of her employment as a paramedic shift officer. Her employment was with Two Shires Ambulance NHS Trust at the time. She had in fact been employed in the Ambulance Service for many years going back to 1983, at which time her employment had been with predecessors of the Two Shires Ambulance NHS Trust. Attached to her Form IT1 and in response to Box 11 on it there was a document running to some 12 pages particularising incidents from as early as 1983 and going forward in time.

In its Notice of Appearance the Trust took the point amongst others that the matters complained of occurred more than three months prior to the presentation of the complaint and were out of time.

It is obvious that the amount of preparatory work to meet Miss La Motte's claim in full and in detail would be enormously consuming of time and resources.

On 20th March 1998 the solicitors for the Trust wrote to the Regional Secretary saying that:

"It is the Respondent's case that this Application is out of time. Further, allegations are made against a former employer (not the present Respondent) for which the Respondent is not responsible and there are old and vague allegations which do not appear to support any substantive claim.

We would be grateful if you will fix a preliminary hearing to deal with the issues of which, if any, of the allegations made in the Application are to be allowed to proceed."

On 24th March 1998 a letter written on behalf of the Regional Secretary was sent in reply saying:

"This file has been referred to a Tribunal Chairman, who directs that there be a Preliminary Hearing to determine whether the application was presented in time.

Should the applicant succeed on this preliminary point, the tribunal will immediately proceed to a Directions hearing.

A Notice of Hearing will be issued in due course."

On 22nd April 1998 a Notice of Hearing was issued pursuant to the relevant Rules of Procedure in these terms:

"The Tribunal has ordered a preliminary hearing which will be heard by an Industrial Tribunal at [the address in Reading is given] on Friday, 5 June 1998 at 09:45 am, ...

1. The hearing will be limited to consideration of the following preliminary issue(s):

Was the application presented out of time?

..."

It was the anticipation of the parties that there would be a preliminary hearing to deal with what was an important question.

On 4th June, however, the day before the date set for the preliminary hearing, a telephone call went from the Office of the Industrial Tribunal to the parties saying that a Chairman had decided that there would not be a preliminary hearing after all. Representatives attended on 5th June. There was, we are told, informal discussions in which Mr Goodlad for the Trust asked the Chairman to hold a preliminary hearing but he declined. In the result, the order for directions was made that there shall be no preliminary hearing and that:

"The respondents are directed to serve a request for further and better particulars of the application on the applicant within 21 days of 5 June 1998."

Pursuant to a request the Chairman gave written reasons for his decision which were sent to the parties on 25th June. In those reasons the Chairman sets out the extent and complexity of the application and summarises the complaints and gives his reasons for saying that in the circumstances the whole case must come on and the questions of time, what was out of time, what time should be extended in hearing the application, would be dealt with in the course of a full hearing, rather than as a prior issue.

Now whether the Chairman reached a correct decision in fact is not a matter for us to determine today in the light of the view that we have taken on another aspect.

The other aspect is that having granted a request for a preliminary hearing and fixed the date for the preliminary hearing, it was, in our view, unfortunate that a decision not to have a preliminary hearing was taken the day before the 5th June and without representations, or indeed, notice, that reconsideration was being given to the parties.

Mr Goodlad today refers us to the powers of a tribunal to review its own decision which is to be found in Rule 11 of the Rules of Procedure set out in the first schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Mr Goodlad says that if the decision taken on 4th June is properly to be regarded as a review of a previous decision, it does not begin to comply with Rule 11 more or less in any respect.

However, without determining whether there is in fact a breach of Rule 11 we deal with this appeal on the basis that it was wrong of the Chairman to decide the matter in the way he did on 4th June after a request for a preliminary hearing had been granted and the hearing was fixed.

There is no doubt that the Trust has substantial arguments that it wishes to advance. The arguments go to the question of the way in which it needs to commit resources to preparation for the full hearing. Whether those argument if deployed would prevail is a matter upon which we make no observation at all. But we think they should receive judicial consideration which they have not received, and so we intend to allow this appeal and to remit the case to the Industrial Tribunal for a preliminary hearing on the question of time. That is to be held before a Chairman other than Mr Hollow who made the order on 5th June 1998 and other than the Chairman who directed that there be a preliminary hearing. In other words, a completely fresh Chairman to deal with that preliminary issue.

Before departing with this appeal, I should say that we have received written submissions of Ms La Motte which we have considered carefully. It is very much in our mind that Miss La Motte urges on us that she is ill with anxiety and stress, and we regret the necessity of causing an additional hearing to take place in the case. The written submissions do not however address the point upon which we allow the appeal at all. So on that aspect they do not add anything further to our consideration.

The appeal will be allowed for the reasons we have given and to the extent we have indicated.