United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D SEROTA QC (ELAAS)


 


JUDGE PETER CLARK: We have before us two appeals by Mr Sanni for a restored preliminary hearing. The first (EAT/656/98) is against a decision of an Employment Tribunal chaired by Mrs M H Don sitting at the London (North) Employment Tribunal on 4^th-6^th March 1998, promulgated with extended reasons on 23^rd March 1998 ["the first decision"]. The second (EAT/1017/98) is against the second decision of that same tribunal sitting on 24^th June 1998. The second decision, with extended reasons, was promulgated on 30^th June 1998.

Background

1. The appellant, who is black and of Nigerian national origin, settled in the United Kingdom in 1971. He was by then a trained electrician.
2. He commenced employment with the respondent as an electrician on 9^th July 1973 and remained with them until his employment terminated on 31^st December 1996. He was then graded senior electrician on a salary of some £22,000 p.a.
3. On 19^th March 1997 he presented an Originating Application to the Employment Tribunal. In Box 1 he identified his complaint as one of unfair dismissal, but the particulars of complaint appeared to raise an allegation of unlawful discrimination.

The first decision

4. At the outset of the first hearing before the Employment Tribunal Counsel for the respondent made an application under rule 4(7) of the Employment Tribunal Rules of Procedure for the Originating Application to be struck out on the grounds that the appellant had failed to comply with an order for further and better particulars of that pleading.
5. The tribunal found, for reasons given at paragraphs 2-6 of the first decision that the appellant had failed to comply with an order made by the Regional Chairman on 26^th November 1997; that the particulars ordered related to the possible complaint of racial discrimination; that without proper particulars the respondent did not know what case it had to meet and was thereby prejudiced, and that in the circumstances the racial discrimination claim would be struck out under rule 4(7).
6. The tribunal went on to deal with the complaint of unfair dismissal. They found that the reason for dismissal was redundancy, or if not, it was some other substantial reason, in that there was a reorganisation of the Maintenance Department in which the appellant worked. At all events, a potentially fair reason for dismissal had been made out.
7. As to fairness of that dismissal, under s. 98(4) of the Employment Rights Act 1996, the tribunal found that the respondent had failed to make clear to the appellant that he could have applied for the job of electrician under the new department structure and that although that job carried a considerably lower salary than that enjoyed by the appellant as senior electrician, his then salary level would have been maintained.
8. The tribunal went on to consider remedies for unfair dismissal and at this first stage made the provisional assessment that re-engagement in the post of electrician on the same salary as he enjoyed at the date of termination of employment was practicable. See Port of London Authority v Payne [1994] IRLR 9. They so ordered, directing that re-engagement take place on or before 6^th April 1998.

The second decision

9. The respondent did not comply with the order for re-engagement. This was a stage 2 hearing, at which it was open to the respondent to show, the burden being on it, that it was not practicable to comply with the re-engagement order. Having considered evidence led by the respondent on this issue and in circumstances where, we are told, no evidence was led by or on behalf of the appellant, the tribunal accepted the respondent's case and declined to make a final re-engagement order. Since the appellant had received a termination payment of £40,986, they awarded no further sum by way of compensation for unfair dismissal.

The Appeals

10. In these appeals Mr Daniel Serota QC, who appears on behalf of the appellant under the ELAAS pro bono scheme, takes two points.
11. Mr Serota's first point is that the tribunal, in their first decision, fell into error in striking out the race discrimination complaint on the basis that the appellant had not complied with the Regional Chairman's order for delivery of further and better particulars of his Originating Application.
12. We are somewhat hampered at this preliminary hearing because, although we have the replies to the original request for particulars ordered by the Regional Chairman, we have not seen the requests themselves. Nevertheless, we are persuaded by Mr Serota that this point is arguable and ought to proceed to a full appeal hearing.
13. Mr Serota submits that the test for striking out an Originating Application or part of the Originating Application under rule 4(7) equates with the test for striking out in the civil jurisdiction for failure to comply with an order for particulars. He has drawn our attention to the Court of Appeal decision in Reiss v Woolf [1952] 2QB 557, for the proposition that for a party to be in default of delivery of particulars the test is not made out in circumstances where a document has been served in good faith which can fairly be called particulars. The Court rejected the contention on behalf of the party that failure arose where each demand for particulars has not been substantially met. Having considered, on the limited information available to us, the attempts made by or on behalf of the appellant to provide particulars and, in addition, a letter written by his solicitors on 5^th February 1998 to the Employment Tribunal, which provided the name of an individual who to that point had remained anonymous in the appellant's pleading, suggests to us that this is an arguable point.
14. Mr Serota's second point relates to the second decision of the tribunal in which they, having at the first stage ordered re-engagement, then declined to order re-engagement.
15. The Court of Appeal made clear in Payne that at this second stage it is essentially a question of fact for the Employment Tribunal as to whether or not the respondent has discharged the onus of showing that re-engagement is impracticable.
16. At the second hearing, the tribunal heard further evidence on behalf of the respondent from a Mr Webb, who was then in charge of the Maintenance Department, and the operations manager, Mrs De-Hass. Based on that evidence, which they accepted and as we have indicated, no evidence was led on behalf of the appellant, the tribunal were satisfied that the respondent had discharged the onus on them and declined to make a final re-engagement order.
17. Mr Serota submits that the tribunal fell into error by failing to give any consideration to the appellant's case on re-engagement, and further, in failing to explain why they had made the order at the first stage but declined to make the order at the second stage. He says that there is no real explanation in the second decision for this change of view.
18. As to the first point. It appears that on the second occasion the appellant was represented by his daughter, whom we are told is or was a law student. It is also clear that from paragraph 10 of the second decision reasons, that the tribunal took into account the submissions made on his behalf by Miss Sanni. We do not regard it as an appealable complaint that the tribunal failed to advise the appellant or his daughter that he should give evidence. It was a matter for them to decide.
19. As to the second point. It seems to us that at the second stage of the procedure, it is not for the tribunal to explain why it has come to a different conclusion from the provisional view reached at the first stage. The question is whether there are sufficient reasons to justify their finding that re-engagement was not practicable at the second stage. They set out the nature of the evidence given on behalf of the respondents at that final hearing; they accepted it; there was no evidence to the contrary. It seems to us, bearing in mind the Court of Appeal's dictum in Payne, that this was quintessentially a question of fact for the Employment Tribunal, they reached a permissible finding.
20. In those circumstances, we shall dismiss that part of the appeal.
21. For the purpose for the full appeal hearing on the strike out point only, we shall direct that it be listed for half a day, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this tribunal. We also direct that the parties agree a bundle of pleadings and correspondence and any other documents relevant to the strike out issue.
22. The sole point, which is proceeding to a full appeal hearing, comes under appeal EAT/656/98. It follows, from our judgment, that the second appeal EAT/1017/98 is hereby dismissed.