United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BOOTH ELAAS


 


JUDGE PETER CLARK: The Appellant Mrs Bari was employed by the Respondent Local Authority as a social work assistant from 18 July 1988 until her dismissal on 30 June 1996.

Following termination of her employment she present an Originating Application to the Stratford Employment Tribunal on 27 September 1996. In that application, she made the following complaints:

"1. Unfair/Wrongful dismissal: Procedures had not been followed in terminating my employment (lack of consultation, right of appeal and representation etc) required notice was not given);

2. The notice terminating my employment was in breach of contract and was short in breach of section 49 of the Employment Protection Act, 1978;

3. Holiday pay due to me had not been received. This is unlawful deduction from wages and in breach of contract (Wages Act 1986);

4. The full amount of car lump sum (fixed ) had not been paid in breach of contract and contrary to the provision of the Wages Act 1986;

5. Breach of contract over Pension rights: reduced benefits on wrong pensionable service calculated in breach of wages Act 1986; lack of information provided as to the implications of not joining the scheme at the commencement of service; refusal to backdate my membership to the commencement of my service; refusal to use the discretionary powers in the interest of justice by LBWF, adversely affecting my benefits; lack of information provided regarding the regulations (extracts) upon which my requests for backdating my membership to the beginning of my service had been refused."

She was , throughout the proceedings until today, represented by her husband Mr A J Bari.

A number of interlocutory skirmishes ensued. In particular on 5 January 1998 the Respondent served a Request for Further and Better Particulars of the Originating Application. Included was a request for Particulars of the breach of contract claim in relation to pension rights; ground 5 of the Application. An order for those Particulars was made by the Tribunal on 16 February 1998. The Appellant applied to the Employment Tribunal for that order to be revoked. That application was refused. Against that interlocutory order, among others, the Appellant appealed to this Appeal Tribunal. On 11 March 1998 we dismissed that appeal.

Following the EAT's ruling the Respondent applied by letter dated 13 March 1998 to the Employment Tribunal for an order striking out the Originating Application.

That application came before a Chairman, Mrs T J Mason, sitting alone on 8 April 1998. The strike out application was limited to the pension rights claim, in respect of which the order for Further and Better Particulars had not been complied with, so the Chairman held. She concluded that the Appellant could and should have complied with the order. She had not done so. The Respondent would in these circumstances be prejudiced in defending that part of the claim. Accordingly, she struck out the pension claim, there being power to do so under Rule 4(7) of the Employment Tribunal Rules of Procedure 1993.

The Chairman gave further directions at that hearing. She identified the remaining issues to be determined at the full Tribunal hearing fixed for the 20-22 April; she refused the Appellant's application for a postponement of that hearing and for Further and Better Particulars of an internal memorandum dated 15 March 1996 and gave directions for the use of witness statements and a bundle of documents at the full hearing.

The Chairman reduced her orders, and the reasons therefore into writing. That order was promulgated on 9 April 1998, and it is against parts of that order that the first appeal (EAT 922/98) is brought. We shall call them "the Mason orders"

The Appellant applied for a review of the Mason orders. That application was dismissed on the grounds that the Tribunal has no power to review interlocutory orders, not defined as decisions under regulation 2(2) of the Rules of Procedure; the strikeout order was a decision capable of review. The Chairman found that there were no grounds for reviewing it.

The substantive hearing of the remaining issues took place before a full tribunal chaired by Mr B C Buckley on 20 April 1998. For the reasons given in extenso on 5 May 1998 the Tribunal dismissed all remaining claims by the Appellant and ordered her to pay £250 costs to the Respondent on the grounds that in bringing the proceedings the Appellant had acted frivolously, vexatiously and unreasonably on the grounds, as they found, that the Appellant had been dismissed under the Council's ill-health retirement scheme at her own request. Further, her conduct of the proceedings, through her husband we add, had been unnecessarily protracted and had added significantly to the Respondent's costs in defending them. Against that decision, which we shall call the Buckley decision, the second appeal (836/98) is brought.

The Appellant again applied for a review of the Buckley decision. We note that the grounds for that application are in substantially the same form as the grounds of appeal in the second appeal. That application was dismissed by the Chairman by a review decision dated 23 July 1998. We note from that decision that the Appellant had obtained a witness order for the attendance of Dr Howlett, the doctor who had recommended the Appellant for ill-health retirement. In the event, the doctor was not called to give evidence, a point to which we shall return later.

The Appeals

Today we have had the advantage of hearing submissions made on behalf of the Appellant by Mr Booth, acting under the ELAAS pro bono scheme. Without abandoning any of the written grounds of appeal, which we have read and considered, he has focused on what may be taken to be the best points advanced in the appeal.

The First Appeal

As to the Mason orders Mr Booth has directed his fire to the strike out order. The position is that on 4 January 1998 the Respondent served a detailed request for Further and Better Particulars of the Originating Application, including those Particulars given under the pension rights claim, which we have set out at the beginning of this judgment. By letter dated 6 February the Appellant answered that part of the request by reference to a letter to the Respondent dated 28 October 1996 to which we have been referred by Mr Booth. On 16 February 1998 as we indicated earlier the order for Particulars was made. The application to revoke that order was refused, and the appeal against that order rejected on 11 March 1998, again as we have indicated. However on 17 March 1998, the Appellant provided further Particulars. It is that letter to which Mrs Mason refers in paragraph 3(ii) and (iii) of her reasons. She found those Particulars to be inadequate, although no reasons are given as to why she reached that conclusion.

Mr Booth pointed out that a request for reasons was made by letter dated 8 April and in these circumstances we shall treat the written reasons given by Mrs Mason as full reasons.

Having looked at the Particulars delivered on 17 March we are persuaded by Mr Booth that it is arguable that those Particulars were adequate, such that it could not be said that no fair trial of the pensions right claim could take place. National Grid Co. Ltd v Virdee (1992) IRLR 555. Bearing in mind that a strike out order is a draconian one, we think it arguable, in line with Mr. Justice Wood's judgment in Virdee, that the order ought not as matter of law to have been made in this case. Accordingly we shall allow this point to proceed to a full appeal hearing.

The Appellant also, in her grounds of appeal, appeals against the order refusing an adjournment of the merits hearing. In our view the Chairman was perfectly entitled to require that the hearing went ahead, balancing the interests of the Respondent as well as those of the Appellant. The way in which the Appellant conducted these proceedings, through her husband, was rightly condemned by the Buckley tribunal. It was necessary to bring matters to a head.

Finally, a party is not entitled to Further and Better Particulars of a document (that is the memorandum of 15 March 1996) as opposed to Further and Better Particulars of a pleading.

In all the circumstances we have concluded that no further point of law arises in the first appeal. It is dismissed, save for the single issue in relation to the strike out order which we have identified above.

The Second Appeal

Here, Mr Wood identifies three specific points. First he submits that the Employment Tribunal have not made clear in their reasons why they have accepted the reason for dismissal advanced by the Respondent, that is ill-health retirement, as opposed to the Appellant's case that this was a disguised redundancy.

In our view, the Tribunal were aware of that conflict. The reason for dismissal was identified as an issue in the case, first in the course of Mrs Mason's directions order and secondly in the Buckley tribunal's decision itself. We also note that Chairman refers in his review decision to the Tribunal's understanding that the Appellant does not accept that her dismissal was by reason of ill-health capability. Further, the Tribunal referred to the threat of the Appellant's team being closed down in a policy review (see reasons paragraph 11(d)). From this we infer that the Tribunal was alive to the point, but nevertheless accepted the reason for dismissal advanced by the Respondent. We can see no error of law because the Tribunal did not spell out their rejection of the Appellant's case as to the reason for dismissal in their extended reasons.

Secondly, it is said that the dismissal was unfair because the Respondent did not comply with their own ill-health retirement procedure. In our view that point is permissibly dealt with at paragraph 11(p) of the reasons. Not every breach of procedure automatically renders a dismissal unfair.

Thirdly, he takes a point about a member of the Tribunal staff informing Mr Bari on the 20 April that he would not be able to cross examine Doctor Howlett if he called him at a witness as part of the Appellant's case. If that advice was given, it was correct (see page 4 B-C of the transcript of my judgment given on behalf of this Tribunal on the 11 March 1998).

Finally, the costs order. Mr Booth submits that if the first appeal is permitted to proceed to a full hearing on the strike out order, a successful outcome in that appeal undermines one of the two bases for the costs order made by the Buckley Tribunal. That is, that the Appellant's conduct of the proceedings was unnecessarily protracted.

We reject that submission. First, because revocation of the strike out order, if that is the outcome of the first appeal, and it is by no means certain - we have merely found the point to be arguable - will not detract from the Buckley Tribunal's observation. Secondly, and in any event, it cannot affect the first basis for the costs order, namely that the Appellant knew perfectly well that her dismissal came about as a result of her desire to leave the employment on the best possible terms. Accordingly, we find that there are no grounds for interfering with the costs order.

Dealing with the remainder of the written grounds of appeal in the second appeal, we have looked carefully at the Buckley decision and find it to be a model of clarity in both substance and form. The Tribunal for the reasons stated, preferred the evidence of the Respondent's witnesses to that of the Appellant where a material conflict occurred; they found all the necessary facts; in their assessment they concluded, contrary to the case advanced by the Appellant, that she welcomed ill-health retirement on favourable terms. The dismissal was fair and not wrongful. She received her full notice entitlement, car allowance entitlement and outstanding holiday pay. In our view the remaining grounds of appeal may be fairly be described as an attempt to reargue the facts of the case and old interlocutory battles. They disclose no arguable point of law. Accordingly the second appeal is dismissed in toto.

Directions

For the purpose of the single issue in the first appeal which is to proceed to a full hearing we shall direct that it be listed for 2 hours, Category C. There will be exchange of skeleton arguments between the parties, copies to be lodged at this Tribunal not less than 14 days before the date fixed for the full appeal hearing. Those arguments limited to the single issue.

No further directions are required so far as Chairman's notes or comment are concerned but we do direct that the parties prepare by agreement a small bundle containing those documents which are relevant to the strike out order, some of which we have referred to earlier in this judgment.