United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A CLARKE QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: In this appeal the parties are a Mr Wroe and the London Borough of Islington. There is a fairly lengthy procedural history. The matter comes before us by way of a preliminary hearing to determine whether there is a reasonably arguable point of law.

The date sequences are as follows. Mr Wroe was dismissed on 23 January 1997. His IT1 is dated 22 April 1997 and an IT3 is dated 20 May 1997. On 25 July 1997 the Tribunal of its own motion directed that Mr Wroe was to be given some further and better particulars as to part of his claim. That order was sent to his Union representative who is referred to in Mr Wroe's IT1. The request was as regards the Application's allegation that the Respondent has breached the Applicant's contract of employment. It is a somewhat truncated request and, as we have said, only related to part of the claim.

There followed a letter chasing, in respect of that order which was also sent to the Union representative, and then the Tribunal made an order striking out the entirety of Mr Wroe's claim and that order is dated 17 December 1997. There then followed a letter from Mr Wroe dated 14 January 1998, showing that he must have discovered the order, by which he sought a review. That letter points out, amongst other things, that he was no longer living at his home address as stated in the IT1. The Tribunal refused that review by a letter dated 12 February 1998 and sent that letter to his address on his IT1 at a stage when they had been told that he was not there.

A further application for a review by a further letter was made on 16 July 1998 by Mr Wroe which gave a post box address and possibly a telephone number, although that may have been cut off subsequently, seeking a further review and the Tribunal made a further order on 10 August 1998 refusing that review. Mr Wroe lodged his appeal to this Tribunal on 10 September 1998 and therefore within 42 days of the last order made by the Tribunal.

The two hearings by way of review were dealt with in the absence of Mr Wroe.

Today Mr Wroe had the benefit of being represented by Mr Andrew Clarke, pursuant to the ELAAS scheme, and he has identified to us two points of law which we accept are reasonably arguable. Whether, at the end of the day Mr Wroe has a good case is not a matter for us today, but he should not take anything from this hearing as an indication that, at the end of the day, we feel he has a good or strong case.

The first point identified is that, it is arguable that to strike out the whole of a claim by reason of a failure to give particulars as to a part of it, and particularly when that part relates to the contractual element, was a draconian step and not a proper exercise of judicial discretion.

The second point, which was not urged so strongly on behalf of Mr Wroe by Mr Clarke, is that having regard to paragraphs T1119 to T1121 of Harvey is that there is an arguable point that Mr Wroe should have been heard by the Tribunal on the review hearings, or alternatively that the Tribunal should have made greater efforts to ensure that he did, or was given the opportunity to, attend so that an assessment of the credibility of his assertions that he had not received information could be gone into.

A procedural problem is that no appeal was made against the original striking out order and therefore any appeal against that is now well out of time. In our judgment it would not be sensible for this Tribunal to be procedurally restricted to dealing only with the review, because if they were to find that the matter should be reviewed either (a) because Mr Wroe was not given a proper opportunity to attend, or (b) because the ambit of the review covers the other point of law, namely that the strike out order was too draconian, and this was not properly considered on the review then this Tribunal may wish to go on and deal with the whole matter and thus the substantive point as to whether or not the case should proceed.

Accordingly, to avoid procedural difficulties we propose to grant leave to Mr Wroe to appeal against the original striking out order out of time, provided that he lodges a Notice of Appeal against that order within the next 14 days. In doing that we make it clear that that order is made in the absence of the Respondents and they are at liberty to apply to discharge it either by making a separate application or at the substantive hearing.

That leaves the issue as to what, if any, directions we should make and before deciding that we will hear again from Mr Clarke.

Directions

Within 28 days Mr Wroe do put in a statement identifying all facts and matters he relies on to show why he did not receive notification from the Tribunal of the initial order and the subsequent correspondence and explaining precisely why he did not take steps to pursue his proceedings in accordance with the orders made and the relevant time limits set by the rules.

We shall also direct that this Tribunal, through its officers, write to the Industrial Tribunal inviting them to inform us, and Mr Wroe, of any records they have of communications between themselves, Mr Wroe and his Union representative, through the course of these proceedings. That information is also to be served on the Respondents and we give the Respondents liberty to put in a statement within 28 days of service upon them of Mr Wroe's statement, dealing with such matters as they wish to raise as to why the court should not exercise discretions as to extension of time in this case.

Finally we add that it would probably be sensible for the appeal that we have before us (which we have taken to be against the review) to be amended to add the paragraph that has been indicated to us by Mr Clarke and which sets out the first point of law which we have accepted earlier as being reasonably arguable (ie as to the draconian effect of the order) and we give leave for that amendment to be made on the same basis as to applications to set aside by the Respondents as apply to the leave we have given to Mr Wroe to appeal out of time against the original striking out order (and that notice of appeal should include the same paragraph).