United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR N FRIMOND (Solicitor) Prospect House Bethel lane Farnham Surrey GU9 0BQ


 


JUDGE PETER CLARK: The appellants, Mr Bryant and Mr Howden, were two out of some 30 applicants who brought complaints of either unfair constructive dismissal or breach of contract against the respondent, British Bakeries Ltd. These appellants complained of constructive dismissal.

Four test cases came before an Employment Tribunal sitting at London (North) under the chairmanship of Mr PRK Menon on 23rd to 25th April 1997. By a reserved decision with extended reasons promulgated on 17th June 1997 the tribunal dismissed those complaints.

Consequent upon the outcome of the test cases the Chairman ordered a directions hearing in these appellants' cases which took place on 10th December 1997. At that hearing the respondent's solicitor applied for an order striking out these complaints on the grounds that they did not differ from the test cases and thus were frivolous and vexatious within the meaning of Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993. In a letter dated 12th January 1998 the Chairman recorded the outcome of that hearing. He expressed the provisional view that on material then before him, the cases of these two appellants, and one other, that of Mr Norman who is not before us, were indistinguishable from the test cases. However, he gave the appellants an opportunity to provide, within 21 days of that letter, further particulars supported by documents of their submission that their cases were distinguishable from the test cases. In taking that course we think that he had, correctly, in mind the principles in to be found in Ashmore v British Coal Corporation [1990] ICR 485 (CA), as to striking out an Originating Application under Rule 13(2)(e).

The appellants complied with that direction and submitted further particulars and documents within the 21 day period. The respondent responded to those further documents by a letter dated 4th February 1998.

On 3rd March, after the 21 day period had expired, the appellants instructed a new representative, Mr Frimond. On 4th March Mr Frimond made further written representations to the tribunal.

By an order promulgated with extended reasons on 24th April 1998 the Chairman struck out the appellants' Originating Applications both for failure to comply with the order for particulars under Rule 4 of the Rules, and on the grounds that they were frivolous and vexatious within the meaning of Rule 13(2)(e). ["The strike out order"].

It is the appellants' case that they did not receive a copy of the strike out order in the ordinary course of post. We see from an affidavit sworn by Mr Howden in these proceedings on 9th October 1998, pursuant to an order made by a division of this tribunal presided over by Judge Byrt QC on 6th October, that he did not learn of the strike out order until speaking to a tribunal clerk, Mr Sani, on the telephone on 13th May 1998.

The appellants did not then appeal against the strike out order, although they were in time for doing so. Instead they made application to the Chairman for a review of his strike out order by letter dated 13th May 1998.

On 21st May the Chairman promulgated a review decision with extended reasons, dismissing the review application on the grounds that:

(a) it was made outside the 14 day time limit provided for in Rule 11(4); and he had no jurisdiction to consider the application; and

(b) in any event, the application had no reasonable prospect of success.

It is against the review decision only that these appeals, by Notices dated 28th May 1998, subsequently amended pursuant to an order of Judge Byrt's tribunal on 12th October 1998, are brought.

In this appeal Mr Frimond submits that the Chairman was wrong to hold that he had no jurisdiction to entertain the review application because it was out of time. He had power to extend time under Rule 15. Further, the appellants and their representative had not received the strike out order timeously. As soon as they learned of it the application for review was made. That contention required a hearing before the tribunal. It gave rise to a good ground for review under Rule 11(1)(a) (error on the part of the tribunal staff) and/or Rule 11(1)(e) (the interests of justice). Were that the only ground on which the Chairman had dismissed the review application we should have permitted the appeal to proceed to a full appeal hearing at this preliminary hearing stage. However, there is a further ground, that the application had no reasonable prospect of success.

As to that, the appellants' submit that the Chairman erred in not giving the appellants an opportunity to show cause why the Originating Applications should not be struck out under Rule 4(7) and 13(3) of the Rules, and in particular, to consider Mr Frimond's written submissions dated 4th March 1998.

We see the force of the submission in relation to Rule 4, that provides that a failure to comply with an order for particulars or for discovery may result in an Originating Application being struck out; and by Rule 4(7):

"If a requirement under paragraph (1) or (3) is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application ... but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."

This is not an appeal against the strike out order, had there been such an appeal, we can see the argument that the tribunal failed to serve notice after the alleged failure on the part of the appellants to provide particulars and provide documents pursuant to the order made by letter of 12th January 1998. The fact that there is no appeal against the strike out order diminishes that point. However, we go on to consider the strike out order under Rule 13(2)(e).

Rule 13(3) provides:

"Before making an order under subparagraph (d), (e) or (f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made ; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

We see a material distinction between the wording of Rule 13(3) and Rule 4(7).

On the facts of this case, it seems to us that the appellants were given an opportunity to show cause orally why a strike out order should not be made under Rule 13(2)(e) at the directions hearing held on 10th December 1997. Further, that hearing was adjourned in order to give the appellants further opportunity to submit written particulars and documents relied on in support of their contention that their cases were distinguishable from the test cases resolved in 1997.

In these circumstances, we can see no basis for interfering with the Chairman's conclusion, that on the review application there were no reasonable grounds shown for reviewing the decision at any rate to strike out under Rule 13(2)(e).

Mr Frimond has argued that the Chairman ought to have taken into consideration before making the strike out order his fax of 4th March 1998. It is not clear from comments received from the Chairman in a letter dated 23rd December 1998 whether or not he saw that fax before making the strike out order. If he did not, we observe that it was received well outside the 21 day time limit. But in any event, the Chairman having considered the point, comments in that letter that it would make no difference to the strike out order.

In these circumstances, it seems to us that this appeal raises no sufficient arguable points of law which if taken to a full appeal hearing would result in the Chairman's review decision being overturned. Accordingly we shall dismiss the appeal at this stage.