United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms C Carr, Solicitor Of- Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street GLASGOW G2 5HS
For the Respondent (1) For the Respondent (2)	Mr A Goodall, Solicitor Of - Director of Legal Services Argyll & Bute Council Kilmory LOCHGILPHEAD PA31 8RT Mrs V Stacey, QC Instructed by – Head of Legal Services East Renfrewshire Council Council Headquarters Eastwood Park Rouken Glen Road GIFFNOCK G46 6UG


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee appellant against the decision of a Chairman of the Employment Tribunal sitting alone, in respect of a hearing for directions on her application alleging racial discrimination which was initiated at the instance of the respondents and had the result of the application being struck out, under and in terms of Rule 13(2)(f) of the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993.
2. That Regulation is in the following terms:-

"A Tribunal may …. subject to paragraph (3), on the application of the respondent, or of its own motion, order an originating application to be struck out for excessive delay in proceeding with it."

3. The appellant's application was initiated by an IT1 in September 1994 and the matter has dragged out until the hearing in respect of which the appeal was taken which was heard on 5 November 1998. Apart from some advice she apparently received from the Commission for Racial Equality, between 1994 and July 1997, the appellant represented herself and there was sundry correspondence passing between her and the Industrial Tribunal office as it then was. Various attempts were made by officials at that office to set up a hearing but the matter was always forestalled by assertions on behalf of the appellant or by her, that she was medically unfit to attend such a hearing. As will become apparent, however, the history reveals that a good number of the letters or communications despatched by the office, were not replied to by the appellant. In July 1997 the appellant obtained representation by the solicitor who represented her before us, Ms Carr, and although at the original hearing the respondents contended that the whole period of time between September 1994 and the date of the hearing should be taken into account, the Tribunal Chairman ruled that there had been no inordinate delay since July 1997 and concentrated purely upon the period between September 1994 and July 1997 as being relevant to the application of the relevant Regulation which we have quoted.
4. The history is recorded at length by the Chairman and we need not rehearse it since he summarises the position in his reasons which he gives as follows:-

"In my opinion the motion of each of the respondents falls to be granted. There has been excessive delay on the part of the applicant in proceeding with her originating application.

I should make it clear that in reaching this decision, I have not been influenced by any consideration that the applicant did or did not co-operate with the Equal Opportunities Commission who were giving her assistance, at least around the time of the presentation of her originating application. That issue was raised in the course of the hearing before me. There has been subsequent correspondence to the Tribunal on that subject. I find it unnecessary to resolve the issue of fact which was raised in regard to that matter of co-operation or otherwise. My decision rests upon other grounds.

I have noted that the language of the English Rule 13(2)(f) is different from the Scottish Rule 13(2)(f). In the latter, as I say, the relevant criterion is that of "excessive delay" in proceeding with the application, while the English rule refers to the relevant ground as being "want of prosecution" in proceeding with it. I proceed on the footing, however, that there is no significant difference in the meaning of the two expressions.

There are certain authorities which give guidance as to how these expressions should be interpreted and applied. Among these authorities are Evans' Executors -v- Metropolitan Police Authority (1992) IRLR 570; Birkett -v- James (1978) AC 297; Samuels -v- Linzi Dresses Ltd (1981) QB 115; Credit Aid Limited -v- Russell Taylor (1983) Times 8 March; and O'Shea -v- Immediate Sound Services Limited (1986) ICR 598. From these authorities I consider it safe to extrapolate the following as being relevant to the resolution of the present issue: there is a good deal of discretion vested in a tribunal Chairman; it is necessary that there is demonstrated to have occurred intentional or disrespectful behaviour on the part of the applicant or the delay must be of such a degree as to be inordinate or inexcusable; and there requires to be demonstrated a serious risk of prejudice to the respondents, or a risk that a fair hearing may not be possible.

Dealing with the period between September 1994 and July 1997 (during which latter month Ms Carr became involved professionally on behalf of the applicant) I have noted that the applicant on one occasion refused to accept a recorded delivery letter from the Tribunal's office (in May 1995); that in circumstances where the applicant's problems were said to have been caused by her health (and some considerable latitude in that regard was accorded to her by the Tribunal's office) the applicant did not keep her promise to "be in touch" or to reply or delayed to reply to correspondence from the Tribunal's office. In this connection reference should be made to the applicant's letter of 28 June 1995 and the letters from the Tribunal's office to her dated 13 and 18 September 1995, 22 February 1996, 28 March 1996, 31 July 1996, 28 August 1996, 29 November 1996 and 4 April 1997.

I have also noted that on two occasions the applicant in letters to the Tribunal's office, claimed that there had not been delivered to her correspondence from the Tribunal's office. She made these claims in a letter undated but received by the Tribunal's office on 20 February 1996 and in her letter dated 27 April 1997. I do not believe these claims, nor do I believe that there was any good reason why the applicant could not have replied, and replied promptly, to correspondence addressed to her from the Tribunal's office. The applicant's failure to reply promptly endured over a period of some two and a half years.

In reaching these conclusions I have taken account of the information concerning the applicant's state of health. While I accept that the applicant has had her difficulties in that regard, I do not believe that her state of health had been so poor that she was unable, from May 1995 until the time of Ms Carr's involvement began to comply with the order for further particulars made upon her. The information supplied to me by the respondents suggested that the applicant's state of health over the relevant period was not such as to disable her from carrying out her duties as a teacher for much of that period.

The events with which this originating application are concerned cover a period between March 1994 and September 1994. At least that is the period when the relevant decisions were made of which the applicant complains as being racially discriminatory. By the time any hearing on the merits of this originating application takes places, (sic) if one were to take place at all, it would mean that witnesses would be asked to recall events in detail occurring five years previously. I heard submissions from the respondents in that regard. It was explained to me that a number of witnesses would be called to give evidence on behalf of the respondents. One material witness was said to have retired and another material witness was said to have developed serious health problems. In general it was submitted to me that the delays which have occurred would be prejudicial to the respondents. In my opinion there is much force in these submissions.

I do not consider that it is a factor in the applicant's favour that a substantial part of the delay in this case was caused by circumstances resulting from the re-organisation of local government. By the time that that event had happened and for some considerable time before, and indeed for some considerable time after, the applicant had in my view been guilty of inexcusable delay. Between the time of the presentation of the originating application and until the involvement of Ms Carr the applicant has – so to speak – moved with leaden feet. The complications which occurred following the re-organisation of local government simply compounded a situation which was of the applicant's own making. The overall impression which I have formed in regard to the applicant's attitude to her case is that in the period from September 1994 until July 1997, there was a lack of interest in the prosecution of her case. The respondents in my view have been prejudiced to a substantial degree. The whole ethos of Industrial Tribunal practice and procedure is one of speedy and informal resolution of employment disputes. There is a serious risk of injustice to the respondents as a result of the applicant's delay.

In the whole circumstances, as I say, there has been excessive delay on the part of the applicant in proceeding with her originating application, and I shall strike it out."

5. Before taking the matter any further, it is noteworthy that the second respondent who is an individual, and who was represented by Counsel before us, was cited in the original application as a respondent, but no suggestion has ever been made that as the alleged discriminator, she was not acting in the course of the employment of her then employer, Strathclyde Regional Council. We do not therefore understand why she was cited as a respondent in the first place and we would offer the view that this should not happen where it is accepted, or albeit at least averred, that in a discrimination case the employer was the employer of the alleged discriminator in the sense that he or she was acting in the course of his or her employment when the alleged discrimination took place.
6. Ms Carr, in her submissions, adhered to her grounds of appeal which concentrated firstly on allegations of perversity by the Chairman in his reasons. She first complained that the Chairman was not entitled to query the content and nature of the alleged illness of the appellant as being relevant to the matter, particularly as there had been no evidence given. She complained that the Chairman did not specify in his decision, the nature of the delay which was said to be excessive, given that it was for the Tribunal office to fix the date for hearings and not the applicant. She further submitted that it was perverse on the part of the Chairman not having heard evidence at the hearing, to form conclusions as to the credibility of and indeed the intentions of the appellant. He should, it was submitted, determine only whether or not either the default on the part of the appellant, if there was any, was intentional and if not whether there had been an inordinate and excusable delay on her part so as to prejudice a fair trial of issues in respect of both parties. Given the nature of the reasons for the delay, namely, medical problems, it was, she submitted, perverse to conclude that the delay was inexcusable. She complained that the Chairman did not give sufficient reasons for why the respondents would be prejudiced by the delay and in any event submitted that they had both waived the right to seek to strike the claim out by continuing to resist it until they finally made the application or in any event were personally barred from doing so.
7. Before taking the matter any further, with regard to the questions of waiver and personal bar which were raised for the first time before us, we do not consider either of those concepts are relevant to the issue to be determined under the relevant regulation which is purely a question of whether or not there had been excessive delay and involves an exercise of a discretion by the lower Tribunal.
8. Mrs Stacey, who appeared for the second respondent, but opened for the respondents, submitted that the Tribunal had reached a conclusion it was more than entitled to reach upon the evidence, particularly having regard to the history that was set out at great length and that the reasons that were given by the Tribunal more than justified their position. Delay, she submitted, was excessive substantially in temporal terms and prejudice could be inferred simply from the passage of time given that witnesses' recollections would obviously become less satisfactory. She pointed out to us that the statements of law contained in the Chairman's decision on page 8 letter G, were either incorrect in the sense of a misdirection or, at least, were typographically incorrect. Having looked at the cases, with that proposition we would agree, since it is clear that as part of the criteria to be considered there is a question of whether the delay is demonstrated to have been intentional or disrespectful but that is an alternative to the issue of whether or not it is in any event to be categorised as inordinate or inexcusable. She submitted that in real terms the Tribunal had considered the latter issue, albeit having some doubts about the intentions of the appellant, and that he was entitled to do.
9. Mr Goodall followed on behalf of the first respondent and adopted Mrs Stacey's submissions. He amplified the position by pointing again to the nature and reason for the delay, the inevitable consequences of it in respect of the respondent's position and endorsed the view that in no way could the decision of the lower Tribunal be categorised as perverse.
10. We confirm that it is our view that the question to be determined in terms of Regulation 13(2)(f) is a discretionary one for the lower Tribunal and only to be attacked successfully before this Tribunal if it can be shown to be perverse in the sense that that discretion was wrongly exercised in law, whether by taking into account factors that should have been left out of account, leaving out of account factors that should have been taken into account or at the end of the day its decision could be categorised as plainly wrong, (The County Council of Hereford and Worcester v Neale [1986] IRLR 168.)
11. In these circumstances the question for us is not whether we would decide the issue differently but rather whether the Tribunal below has fallen into a material error in the exercise of its discretion so as to vitiate its decision on the grounds of perversity.
12. One of our number, Ms Robertson, is firmly of the view, that the conduct of the Tribunal office as revealed in the various letters and communications was such throughout the whole relevant period as to entitle the appellant to assume that she was going to be granted a hearing in due course when she was fit and that her claim was therefore being entertained. This, it was felt, was a factor which should have been taken into account by the Tribunal Chairman and by not doing so, it was at least arguable that his decision was perverse. The majority of us sympathise with that view but did not agree with it inasmuch that we consider that the Tribunal was entitled to proceed upon the basis that it did, with particular reference to the number of unanswered letters which it refers to at the end of the first paragraph on page 9 at letter B. We also are constrained to note that throughout the period of time that the appellant was seeking adjournments or postponements because of her ill health, the Tribunal Chairman was informed or at least was aware that she had been at work, at least at certain times and bearing in mind the issue was whether or not she was capable of attending a hearing, an issue of credibility obviously arose which had reflected the attitude of the Chairman and we consider this was a reasonable position for him to adopt (see 9 letter E). We consider that the Chairman was entitled to take the view that prejudice was now likely to arise through the respondent's position given the passage of time. In the final analysis Ms Robertson did not formally dissent from this position.
13. The question of whether delay can be categorised as excessive on the basis of being either inordinate or inexcusable must be a question of fact generally for the Tribunal of first instance. Here the Tribunal has considered the matter and reached its conclusion giving reasons which can be understood and supported for it. We are therefore of the view that we cannot interfere with this decision which is capable of withstanding the attack based on perversity. That is a very high test and we do not consider that it is met in this case, albeit the Chairman does not appear to be particularly influenced by the conduct of the Tribunal office, nor formed a view of what should be made of it as part of the contribution to the delay process.
14. In these circumstances we consider the Chairman came to a conclusion he was entitled to reach and this appeal will therefore be refused.