United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M D ADAMS (In person)
For the Respondents	MR T LIDDAR (Representative)


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to consider Mr Adams' appeal against a decision of an Employment Tribunal which was taken pursuant to Rule 7 of the Tribunals Rules of Procedure. Rule 7 provides for a pre-hearing review when a party has applied for it (which does not apply in this case) or of its own motion (which does apply) and the purpose of that pre-hearing review is to entitle the Tribunal to consider the contents of the Originating Application and Notice of Appearance, any written or oral representations which are advanced by either party, and for the Tribunal then to determine whether in its view, on a brief consideration of the case, the Applicant has any reasonable prospect of success. If he does not , then the Tribunal may make an Order against that person, requiring him to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.

When an Order is made under that Rule then the Tribunal's reasons for considering that the contentions in question have no reasonable prospect of success shall be recorded in summary form in a document signed by the Chairman. A copy of the document containing that Order is to be sent to each of the parties accompanied by a note explaining that if the party against whom the Order is made persists in participating in proceedings relating to the matter to which the order relates "he may have an award of costs made against him and could lose his deposit".

In this case, following the application of that procedure, Mr Adams' complaint was judged not to have any reasonable prospect of success, and the reason why was because he could put forward no positive reason to show discrimination, other than the fact that he did not get the job. The application from Mr Adams was that he was unfairly and unlawfully discriminated against by reason of not being selected for a post with the Leicestershire Youth Training Trust, the Respondents.

He was ordered to pay £100 as a condition of being permitted to continue to take part in the proceedings and it is an appeal against that order that we are considering. The first point that Mr Adams made in support of the appeal is that it appears that the Employment Tribunal lost a document which was attached to a letter which he wrote to the Employment Tribunal dated 11 February 1999. The document that was lost was the log which showed that the document had been sent. He says that the decision to hold a pre-hearing review under Rule 7 was taken in the absence of such a document. Indeed he goes further and says that a member of staff must have deliberately removed the document so that it was not seen by the Chairman before the decision was taken. We have had the advantage of looking at the document in question, namely the letter of 11 February, and can think of no reason at all (and none could be suggested by Mr Adams) as to why anybody would seek to remove it from the file.

It seems to us somewhat improbable that there should have been a deliberate removal with a sinister motive attached to it, as Mr Adams is suggesting. Even if it had originally been removed, it was then considered by the Employment Tribunal to see whether in the light of it the pre-hearing review should take place, and the decision was taken that it should. The parties were notified of the date in due course. We are satisfied that that point does not give any grounds for suggesting that the decision of the Employment Tribunal to hold a pre-hearing review was other than one which lay within their power.

Secondly he says that he has applied for extended reasons for the Tribunal's Order but has not been given any. The reason which was advanced was that apart from the non-selection for the post, there was no other evidence advanced in support of the claim of discrimination. It seems to us that the complaint which is made under this head stems from the fact that the Appellant was given by the Employment Tribunal a form which was more apt for a decision of a Tribunal under Rule 10. As we read Rule 7, all that a Tribunal is required to do, and all that it reasonably could be expected to do after a pre-hearing review, would be to give a mere summary of the reason why it had concluded that the application stood no reasonable prospect of success, as was done in this case. The fact therefore that the Tribunal have not provided extended reasons does not in our judgment give any grounds for complaint in this Court.

The third point that he made is that as a result of the Tribunal threatening to exercise its powers if the deposit was not paid within the 21 day time period, he was forced to react more quickly than he otherwise would have been in appealing to this Court. The Employment Tribunal had indicated that as the deposit had not been made, it was minded to consider exercising its power to dismiss the application.. He appealed to this Court and it became necessary, as a matter of urgency, for this Court to exercise the powers which it has to extend the time so as to enable the appeal to be heard and determined.

Whilst we do not approve of the fact that the Employment Tribunal was considering exercising its powers in default of payment despite the fact an appeal had been made to this Court, the point that is made under this head does not give any grounds for complaint in the appeal against the making of the Order.

The next point that is made is that he says that his time for compliance with the Order and time for appealing from the Order should date from a date stamp on the document in question. As we see it the document containing the Order is properly dated 8 April 1999, that is the date which governs the date when the document was sent and from which time is calculated. Whatever the position is, whether there was an administrative error in not having a date stamp stamped on this document which we have not investigated, it seems to us no prejudice has been caused by any alleged failure and this is not a good ground of appeal.

The next point that he makes is that the letter of 24 February contained information which should have been available to the Employment Tribunal in any event. The Tribunal wrote on 25 February, in response, saying that it and its contents would be referred to the Chairman who conducts the pre-hearing review. We can see no grounds for complaint. The information was being channelled towards the Chairman who was to hear the review and we can see no objection to what the Tribunal did.

The next complaint that is made is that the Respondents' answer to the application (their IT3) contains in paragraph 7.6 an assertion that the Applicant was not the best candidate. The most suitable candidates for the position were two named women, who, it was asserted in the document, both appeared to have the skills and ability successfully to carry out the vacant position.

"Mrs Hazelwood and Mr Liddar (the selection panel) both agreed that the Applicant should not be chosen as the most suitable candidate for the position. It was their assessment that the Applicant's skills, and in particular his performance in the role play exercise, was less satisfactory than the skills of other candidates".

What Mr Adams says is that there is significance to be attached to the fact that he has discovered that the post was not in fact filled. In other words, the two preferred candidates were not taken on, for whatever reason, and accordingly, he says, because he was the next best candidate, he should have been appointed. That contention is to support his claim that he has been rejected on the grounds of his disability. It does not follow that because a candidate is not the preferred choice, and the preferred choices fall out of the picture, that that candidate should necessarily be given the position. It can be said that this is a change of position from the date when the Tribunal considered the pre-hearing review but we for our part do not think that there is enough in this point to justify us in saying that there has been such a change of circumstances as to render the original decision to be erroneous in law.

The next series of points was to a different effect, namely that there is correspondence passing between the parties which appears to conceal the fact that the principal witness for the Leicestershire Youth Training Trust sadly died on 11 December. What Mr Adams says is that after 11 December 1998, letters were written which would not have been written if he was going to be told the truth about her sad demise. Whether that is a good point or not, it may be something which the Tribunal will wish to consider in due course when it gets to the hearing.

As we explained to Mr Adams at the outset of this appeal, the effect of the Order made by the Employment Tribunal in this case is not to prevent him from continuing his case. The Tribunal which hears his case substantively will not be aware when it does so that such an Order has been made unless and until it rejects his complaint substantively. The point of the pre-hearing review was to require the Applicant to make a token or small payment as an earnest of his intention to continue with the proceedings, having regard to the fact that their prospects of success did not on the face of them appear to merit the case going ahead.

It seems to us that before we could interfere with a decision or order made by an Employment Tribunal under Rule 7, there would have to be compelling grounds to show that an error of law had been made. We think that this was a matter of discretion for the Employment Tribunal. They have exercised their discretion in a way which cannot be faulted and it seems to us that this appeal should therefore be dismissed.