United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A. HILLIER ELAAS


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Stratford Employment Tribunal, Mr Taplin against the Tribunal's decision to strike out his Originating Application complaining of unfair dismissal, racial and sexual discrimination, breach of contract and victimisation under Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993 on the grounds that the manner in which the proceedings had been conducted by him had been scandalous and vexatious.

We are conscious that this power to strike out a claim without determining it on its merits was first introduced by the 1993 Rule changes to overcome the problem identified in Kelly v Ingersol-Rand Co. Ltd [1982] ICR 476, (prolonged argument between the Applicant and the Chairman) and O'Keefe v Southampton City Council [1988] ICR 419 (Applicant constantly abusive to the Tribunal and the witnesses) in both of which cases the Tribunal struck out the claim but, on appeal, it was held that there was no power under the Rules as then framed so to do.

The question in this case is whether the circumstances was such as to give rise to the exercise of the power to strike out under Rule 13(2)(e) and if so, whether that power was exercised judicially.

Those circumstances are set out in written reasons given by the Tribunal first, on 28 January 1998, following a hearing on 19-22 January 1998, which was then adjourned, and secondly, in the material decision under appeal given with extended reasons on 21 April 1998, following a resumed hearing held on 15 April.

The claims arise out of the Appellant's employment with the Respondent Council from the 15 January 1990 until 2 August 1995 as a legal assistant in the debt/rent arrears department.

The substantive hearing commenced on 19 January 1998. On Wednesday, 21 January the Appellant did not appear before the Tribunal, but sent a faxed message which did not at first reach the Tribunal hearing the case.

We have been shown a copy of that fax in which the Appellant states that he has lost all confidence in the Tribunal dealing with the case in a fair minded and judicial manner, he then sets out various matters of complaint and concludes by saying:

"I can see little point in continuing the hearing any further as the Tribunal has in effect already reached its decision and I am being threatened with costs."

Finally he said he was not withdrawing his case but was taking advice as to the possibility of setting the Tribunal's decision aside or getting a review or an appeal against the decision.

The Tribunal reassembled on the 22 January, and having become aware of that fax, Counsel for the Respondent, Ms Omambala, indicated her intention to make application for the Originating Application to be struck out.

In order to give the Appellant notice of that application, the Tribunal adjourned the proceedings until 15 April, in the meantime producing their first set of reasons. Before the resumed hearing, Counsel submitted grounds in writing for her application accompanied by a written submission. It appears that only the written submission was sent to the Appellant before the resumed hearing on 15 April.

On 15 April the Appellant attended. Ms Omambala made her application. Having heard both parties the Tribunal concluded that the Appellant had shown a contempt for the process of the Tribunal such that his conduct in the proceedings was scandalous, and further that his application was vexatious in that he knew it had no reasonable prospect of success.

Against that decision, this appeal comes before us for a preliminary hearing. The Appellant has the advantage of representation by Mr Andrew Hillier under the ELAAS pro bono Scheme. Looking at the Notice of Appeal, in the course of submissions and on instructions Mr Hillier has withdrawn paragraphs 1, 2 and 4 of the existing Notice of Appeal which are really directed to the Tribunal's first set of reasons which do not relate to the decision under appeal. As to the third ground of appeal raising various allegations of bias, we have considered the affidavit in support of those grounds and the Chairman's comments. In our view, that allegation would have been material had the case been dismissed on its merits, but it seems to us that in the light of the comments made by the Chairman, and because we think the real point in this appeal is only articulated in an amended ground of appeal, drafted by Mr Hillier to which we shall come in a moment, we think it right to strike out that third ground of appeal and to focus our attention on the fifth ground.

The way the case is put before us is that in concluding that the ingredients of Rule 13(2)(e) had been made out, the Tribunal took into account irrelevant factors. In particular, the merits of the claim, the Applicant's failure to advance the matter on 15 April when all that he was required to do was to respond to the application that his Originating Application should be struck out and generally to focus on the Tribunal's view of the merits of the claim at that stage, it having directed itself but that was not a relevant factor for the purpose of considering a strike out under Rule 13(2)(e).

We note that Ms Omambala applied for the Originating Application to be struck out under Rule 13(2)(f), that is for want of prosecution. However that was not the basis on which the Tribunal proceeded, although it may be said that the fax of 21 January gave rise to the possibility of such a course.

There is little, if any, authority. Certainly we have not been referred to any on the provisions of Rule 13(2)(e). It seems to us that the point raised in this appeal which ought to go forward to a full hearing, concerns the scope of the Tribunal's power under that rule and whether in exercising its discretion, the Tribunal took into account irrelevant factors. In these circumstances, we shall allow the matter to proceed only on ground five, that is the form of amendment presented to us by Mr Hillier. We strike out the first four grounds of appeal and grant the application for leave to amend to add ground five.

For the purpose of the full hearing we shall direct that the appeal be listed for half a day, category C, skeleton arguments to be exchanged between the parties and lodged with this Tribunal not less than 14 days before the date fixed for the hearing.