United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P ROSE (of Counsel) MS O PARVIS Messrs Norton Rose Solicitors Kempson House Camomile Street London EC3A 7AN
For the Respondent	MR I SCOTT (of Counsel) MR P LAMBDEN Messrs Stevens & Bolton Solicitors 1 The Billings Walnut Tree Close Guildford GU1 4YD


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The background facts relevant to this appeal can be stated in this way: The Applicant who is the Respondent to this appeal, Louise Connor, presented a complaint to an Industrial Tribunal alleging that she was entitled to equal pay with named comparators; that she had been dismissed allegedly for a reason which was not the true reason for the dismissal; that she had been unfairly dismissed and that she had been dismissed because she had been away on maternity leave; and that therefore she had a claim under the Sex Discrimination Act.

The IT1 which was received by the Industrial Tribunal on 27 July 1998 set out in considerable detail, which was entirely appropriate, the grounds of her application. Her complaint was brought against her former employer, Ilion Plc, who we will refer to as the Appellants or the employers. The employers presented, in response to this IT1, a Notice of Appearance in which they dealt cursorily only with the complaint presented to the Tribunal. That IT3 was dated 7 September 1998. Not surprisingly, in the light of its terms, requests for Further and Better Particulars of the IT3 was sought by the Applicant, Miss Connor.

In order to fully understand the background to this appeal, it is necessary to say that the first request was in relation to why the Respondents said that there were several material factors of practical importance which differentiated her case from the case of the comparators, and they were invited to identify what each of the several material factors were. The response that was given eventually was that all 3 were appointed from outside the company and regard was had to their existing salaries at the time of appointment. The Applicant was promoted internally without any previous experience of her position. They were asked when the Head of Resources identified her position as redundant and the reply was when requested to look at redundancies. That was evasive in our judgment.

Of the unfair dismissal, the Respondents had said that they would reiterate that the dismissal was for redundancy and that such selection was fair. The question that they were asked then to deal with, was full particulars of the selection process here referred to including who was involved in the pool for selection. The answer was that the pool for selection was based on the job position, there could be no criteria of the sort suggested. In response to the Sex Discrimination Act complaint, which is an integral part of the unfair dismissal claim, the Respondent had said that the Applicant was not permitted under the relevant legislation to claim equal pay or sex discrimination relating to pay. Not surprisingly, the question that was asked was precisely what sections of what legislation was being relied upon; and the reply, which again was evasive in our judgment, was that the relevant legislation is the Sex Discrimination Act 1975 and the Equal Pay Act 1970.

In accordance with modern practice and procedure, the Industrial Tribunal in a case such as this, thought it appropriate to hold a directions hearing. The Further and Better Particulars had been requested promptly after the IT3 in September of 1998, and had not been responded to by the date when the directions hearing took place on 6th November. That directions hearing was attended by the employers' then representatives, Peninsula Business Services Limited, who are familiar with Industrial Tribunal and Employment Appeal Tribunal procedures. On that occasion, on 6 November, the Tribunal made various orders, all of which were designed to enable the case to come on for hearing on 15 March continuing until 19 March, those dates being set for the hearing of the Originating Application. They set aside a further hearing for directions for 12 January 1999 for the Tribunal to consider further the appropriate and most expeditious method of the complaints being heard but it was recognised that such a further directions hearing might not be required. The Orders that were made at that time, were for the Further and Better Particulars which had been requested and for discovery, and various directions for hearing were provided.

In the written order following the pre-hearing discussion on 6 November, the Tribunal indicated that a failure in relation to discovery could lead to a fine which is provided for under the Rules of Procedure, and to the extent that the Order for Further and Better Particulars was not complied with, it might result in the whole or part of the Notice of Appearance being struck out and/or where appropriate a direction made that the Respondent shall be debarred from defending altogether.

The Industrial Tribunal Rules of Procedure provide for the making of an Order for Further and Better Particulars as also a right in the Tribunal to strike out in the event that that Order is not complied with. It should be pointed out that Industrial Tribunals are in a different position from the ordinary courts, in the sense that costs do not follow the event. There is a limited power in the Industrial Tribunal to grant Orders for costs and in order to ensure that their Orders are complied with, it is the practise of the Industrial Tribunals to make it plain to parties that a failure to comply with one of their Orders may lead to their case being struck out, whereas under the present system which will shortly be replaced on 26 April, in the Courts it is customary, or has been, for the Courts to make a number of Orders before finally making an Unless Order.

Nothing happened in relation to that Order within the time limit provided, but on 30 November, out of time, Peninsula Business Services Limited had served on the employers' behalf the unsatisfactory Further and Better Particulars to which I have referred. Those Particulars were obviously non-compliant with the Orders which had been made, and, prompted by the Applicant's solicitors, the Chairman was invited to make an Order striking the case out. What he did was to make an Order on 8 December as follows: He considered that the Particulars supplied were received out of time; he considered that the Particulars were insufficient to the extent that there must be doubt that there has been compliance with the Tribunal's Order; and it was said as follows:

"Accordingly the Chairman is considering one of the whole or any part of the Notice of Appearance should be struck out for the failure of the Respondent to comply in time or at all with paragraph 2 of the Tribunal's Order of 11 November. If you wish to make any submissions as to why such an Order should not be made, these submissions should be in writing and received at this office within 10 days of the date of this letter. The Chairman will consider any such submissions and any full Particulars you wish to supply within the same timescale. In the meantime, the provisions of paragraph 4 of the Order are suspended and the Chairman will decide whether to retain the date of 12 January 1999 for an interlocutory hearing once the Respondent's submissions have been received."

The Respondents did not make any submissions or provide any Particulars to the Industrial Tribunal within the 10 day period. There was no communication from them. The Tribunal very sensibly allowed the Christmas period to expire before taking any further steps. On 6 January, in exercise of the powers conferred by Rule 47, the Chairman ordered that the Notice of Appearance be struck out and the Respondents be debarred from defending because of their failure to comply with the Order for Further and Better Particulars as required by their Order dated 11 November 1998.

There was no appeal against that Order and no application for a review of it, but instead the parties came before the Industrial Tribunal on 12 January for further directions to be given which modified the previous hearing length estimate in the light of the fact that the Respondents had been debarred from defending. The Respondents appeared on that occasion through their representatives, Pensinsula Business Services Limited. It was not represented to the Industrial Tribunal at the time of that hearing that there was to be an appeal against the Order striking the case out, nor was it indicated that an application for a review was being made and no suggestion was made to the Tribunal at that time that the case should not have been struck out.

That hearing took place on 12 January and led to various directions which were confirmed in writing. Immediately after the date of that hearing, Messrs Norton Rose, who are eminent solicitors who practise in the employment field, amongst other things, took over representation of the Respondents' interests. It appears that there was difficulty in obtaining information from Peninsula. I am told and accept that until 9 February 1999, Norton Rose had not been provided with a copy of the Order which had been made following the 6 November hearing, nor had they been informed that the case had been struck out and therefore they had not been provided with the Order of 6 January nor with the amended directions given on 12 January. However, they say that those documents all came into their possession on 9 February and was seen by a Partner dealing with the matter on 11 February.

On 25 February, a Notice of Appeal was filed with this Court. The Tribunal was asked by Messrs Norton Rose in February 1999, to review the decision which had been made striking the case out. The Tribunal rejected that application for a review by letters dated 23 February 1999 and 26 February 1999 which are to be found at pages 16, 17 and 48 of the file respectively. Essentially the Tribunal set out the history of what had occurred and noted that the time limit for applying for a review of the striking out order expired on 21 January 1999, that the case was now set for hearing in less than 3 week's time and that there had been no compliance by the Respondent with the Tribunal's Order of 11 November 1998, and that the Tribunal Chairman was not prepared to extend time for making an application for review of the striking out Order as any such extension of time would almost inevitably lead to a postponement of the hearing due to commence on 15 March, a date fixed for some 4 months in advance with consequent prejudice to the Appellant.

At the time that decision was made, there was in the post or at the Industrial Tribunal a document which had been faxed to them by Messrs Norton Rose and it was that, I deduce, which led to the letter dated 26 February from the Tribunal:

"Clearly the Respondent has an issue with its former representatives. The striking out Order must cause prejudice to the Respondent. By the same token, there would be prejudice to the Applicant if the hearing is adjourned, the Chairman has balanced the prejudice and is of the view that an extension of time for a review should not be granted."

It follows therefore that the Notice of Appeal which was received by the Employment Appeal Tribunal was within the 42 day time period of the Tribunal's decision not to review the Order to strike out, but was out of time in relation to the Unless Order that was made in December 1998 and out of time in relation to the Order striking the case out on 6 January 1999.

The explanation for the delay that is advanced in this case is the ignorance of the Respondent and of Messrs Norton Rose until at least 11 February of those matters, and therefore time should be extended. That was a good reason for the delay, and the interest of justice required it because otherwise the employers would sustain overwhelming prejudice as a result of them being prevented from defending what is a substantial claim against them.

In relation to the submissions which were made, it is said by Mr Rose, on behalf of the Appellants, that there are essentially 4 (he put it as 4, I think there are 3 points) points which he wished to raise: The first is that the Order to strike out was made on 6 January was a mechanistic reaction and there was no clear indication as to how the Tribunal, in particular had sought to weigh or balance the prejudice to the parties if the Order was made or not made. He says that in fact there was no suggestion that the Tribunal has properly weighed prejudice.

Secondly, the Order to strike out was premised upon an Unless Order which should not have been made in the first place. An Unless Order he says, is the last straw in the Court's armoury or alternatively to be described as the atomic weapon which the Courts only use where the last straw has broken the camel's back. In this case, there had not been a history of delay or history of non-compliance with Court Orders and reference was made to Hytec Information Systems Limited v Coventry City Council reported 1997 Industrial Cases Reports, Page 1666 and in particular, two passages in Lord Justice Ward's judgment setting out the philosophy of the Court's approach to cases such as this. He also made reference to a decision of the Employment Appeal Tribunal which was dealing with the failure of a Respondent to put in a Notice of Appearance in the case of Kwik Save reported at 1997 ICR, Page 49 and in particular the passage at Page 55.

The third submission that was made was that the Tribunal ought not to have struck out all of the claim. There was a perfectly good case in relation to the Sex Discrimination complaint. There had been no real failure to comply with the Order for Further and Better Particulars, or even if it had, it was only in relation to a question of law and not a matter which required to be pleaded. He said that it was not appropriate to ask the Respondents to identify which section of the Acts they relied on in support of their contention that the Applicant was excluded by the Statutes from making her equal pay case or complaining of discrimination.

On behalf of the Respondents, that is the employee, it is submitted that Peninsula held themselves out as providing the leading consultancy services to people who are involved in employment related disputes in Tribunals. There could be no division drawn between the employers in this case and their legal advisers. What their legal advisers knew, they knew. As to the Further and Better Particulars, it was submitted that they are manifestly inadequate and evasive, that the Respondents themselves, that is the employers, knew of the Order that had been made because the written document which followed the hearing on 6 November simply confirmed what was said at the oral hearing which was attended by the employers themselves. Therefore at the time when Norton Rose were first instructed, their clients would have known perfectly well that there was a hearing fixed for the 15 March, for a period of 4/5 days.

It was submitted to us that there is no rule which requires there to be a history of delay or breaches in dealing with Tribunal Orders before an Unless Order is made. No such statement appears in their rules and it would be a gloss on the rules to add such a requirement, and that such was not intended by the Court of Appeal in the Hytec case. Counsel also referred to a decision which is reported in the Times Law Reports Lowndes v Babcock Power Limited reported at 1998, Times Law Reports, February 18.

In this short summary of Counsel's submissions, we probably have not done justice to the full extent of their arguments, but they will understand in the context of this urgent appeal that may be an inevitable consequence of the speed with which these proceedings have been concluded. Our unanimous decision is clear. It is that the way the Industrial Tribunal has dealt with the matters in this case cannot be faltered and that there is no error of law which we have been able to detect. Dealing first with the Order that was made in December of 1998, that is, I think, 8 December 1998, it seems to us that the Tribunal were very sensibly giving the employers a further period of time to comply with the Order which they had not complied with so far. They purported to comply with it out of time, without any explanation, and now they were being asked to give full compliance with that order otherwise the case was going to be struck out. That seems to us to be the proper interpretation of the Order that was made on that occasion. As Counsel quite rightly put it on behalf of the employers, this was effectively the making of an Unless Order.

It seems to us quite incomprehensible that the employers' representative did not have any communication with the Industrial Tribunal before 6 January of the following year. We do not know and we should not enquire why it was that Peninsula Business Services did not have any such contacts, why there was no attempt to put in a further document dealing with Further and Better Particulars or even a request to the Tribunal to give them some more time if that was a problem in providing the answer to the Particulars, which had been on the table as long ago as 10 September 1998. In those circumstances, it seems to us manifestly clear that the Industrial Tribunal on 6 January 1999, was entitled to consider exercising its powers to strike the case out having made the Unless Order.

The case of Hytec Limited v Coventry City Council is, if we might respectfully say so, a very good example of the importance which the Courts attach, and rightly attach, to what may be described as the public interest element in a weighing process which must be carried out in relation to such an application. The interest of justice requires that justice should be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs, is how it is put in the Court of Appeal decision. The public interest in the administration of justice, also weighs very heavily. Any injustice to the defaulting parties, though never to be ignored, comes a long way behind the other two.

As at 6 January, the position before the Industrial Tribunal was that it had made an order which contained a note pointing out the consequences of a failure to comply with it. There had been effectively non-compliance. Peninsula did not make any sensible attempt to provide the Particulars which had properly been requested and ordered within time. They were given a further 10 days to come out with the Particulars which were required, which no doubt would have persuaded the Tribunal not to strike the case out at that time. They did not respond or ask for an extension of time. There was nothing for an extended period until 6 January 1999.

It seems to us, the Tribunal were entitled to take a very strict view of the procedural requirements. Was the explanation, as it was put in the Hytec case, a sufficient exoneration which will most inevitably require that the person satisfies the Court that something beyond his control has caused his failure to comply with the Order. No such explanation can or has been put forward to us and in order to meet that problem, Counsel has suggested that the Unless Order should not have been made in the first place. That seems to us not to be a correct approach. The Order was made. There was no appeal within time against that Order. We are looking at the non-compliance with that Order and no proper or satisfactory explanation has been given for non-compliance when the automic weapon has been released.

Accordingly, that was a major factor which the Tribunal were entitled to take into account and predominates over the relative injustices to the parties. However, it seems to us quite unfair to suggest that the Industrial Tribunal has not taken into account, as it almost inevitably will have done in reciting the history of what had happened, the prejudice which will flow from its decision. It knows perfectly well that if it makes a decision of this sort, then the party concerned will have not had a trial of their defence. On the other hand, by not striking out the inevitable consequence would be, as I think it is accepted now, that the hearing date which had been fixed months ago would have had to be vacated. The truth is that the Further and Better Particulars which Norton Rose have now prepared, show a very different explanation for the equal pay point, that is the difference between the comparators case and the Applicant's case, from that which previously had been pleaded, and would have meant without doubt, a further and lengthy investigation of the facts.

Thus it seems to us that applying the approach in Hytech Limited v Coventry City Council, which is an exemplar of the public policy consideration, the Tribunal were well entitled to arrive at the decision they did to strike this case out. They will have weighed the prejudice and it seems to us, that we are asking too much from a Tribunal if we require them to say so in arriving at their conclusion. It is not to be assumed because they have not said so they have not weighed the relative injustices. The third factor which might be taken into account is what is described as the merits factor in the Kwik Save case. I think in a case such as this, as of 6 January 1999, the Industrial Tribunal had no information on which they could have formed a view as to whether the Respondent's employers had any merits in their responses or not.

Then it comes to the question of the review. It seems to us that the Tribunal is entitled to say that the application for a review should have been made within time - a period of 14 days, but that even if the time was to be extended, that the application for a review was without any merit. This has been a very bad case of disruption to the Tribunal's attempts to prepare this case in an orderly way for a hearing. In our judgment, the Tribunal are to be congratulated on their attempt to have interlocutory hearings so as to get this case into a shape where the trial may take place fairly between the parties, and their endeavours have been obstructed by the representative of the employers in this case. They are entitled, as it seems to us, when they are attempting to case manage in a proper way to the support of the Employment Appeal Tribunal when they are exercising their discretion. The reason why they turned down the review was because in their view it had no merit and when it is suggested that they have failed to weigh the respective prejudices to the parties, it seems to us with great respect that that submission is simply not open to the employers having regard to the letters of 23 February and 26 February in which they deal with the application for a review.

It follows therefore that even if the appeal had been within time in relation to the original decision to strike out, or had been in time in relation to the Unless Order when it was made, we would not have allowed the appeal on those two matters for the reasons I have indicated, but it does not seem to me that time should be extended for the appeal in this case. The fault in getting an appeal before the Court in relation to the Orders of 6 January and 8 December lies entirely with the Respondents and their legal advisers. In those circumstances, it seems to me applying the principles in United Arab Emirates v Abdelghafar that I have not been provided with a satisfactory explanation which excuses the delay in presenting an appeal within time. It is true that in this case the effect of the Tribunal's Orders will be that there will not be a trial, which is a factor that I take into account in the exercise of our discretion as to whether time should be extended. I take into account also that this is an appeal against an interlocutory order, which I think is the same point made in a slightly different way and I take that into account as well.

In the exercise of our discretion, we would not be prepared to extend time for the appeal against the Order of 6 January or, if it is made, in relation to the Order of 8 December, but that factor plays no significant role because we have looked at the arguments on the appeal and regard them as empty in any event. Accordingly this appeal will be dismissed.

We have been asked for leave to appeal on two points: First it is suggested that the judgment which we have given identifies a difference in practice between the High Courts and the Industrial Tribunals and that in some way or another, the principles set out by Lord Justice Ward have not been applied in this case. Secondly, it is submitted that the question of law arises as to whether the Order of 8 December, which should not have been made so it is argued, vitiates the Order striking the case out which was made on 6 January. It seems to us that neither point is arguable. The point about Hytech is not that it is laying down guidelines in tablets of stone, it is indicating how the public policy element of the discretion should be approached and that is something with which we agree. We do not regard Lord Justice Ward's statement that there must be a history of delay before an Unless Order is made as being intended to mean that there must be at least two Orders before one could say that there had been a history. That does not seem to us to be what he was intending to say, nor what would be appropriate for an Industrial Tribunal.

As to the second argument, it seems to us that that is unsustainable. An Order of a Court or Tribunal which has been made, if made wrongly will not vitiate the other Orders unless it is appealed against or is put right in some other way. It seems to us that there can be no question of what happened on 6 January being vitiated by something which allegedly should not have been done on 8 December. Neither point, it seems to us to be arguable. This is a pure matter of practice and procedure in Industrial Tribunals and their good sense in the management of cases which are often difficult decisions to be taken, as Lord Justice Mummery said in the Kwik Save case. It seems to us that we should accord due respect to the way they have exercised their discretion. It is not for us to substitute our discretion for theirs. Accordingly, this being a matter of discretion, it seems to us not an appropriate matter for the Court of Appeal. In any event, it seems to me utterly desirable that this claim should be heard and determined on 15 March, as it has been scheduled to be since November of 1998, and there should be no further delay in relation to it.