United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K DOBE (of Counsel) Messrs Shah Solicitors 168 Greenford Road Sudbury Hill Middlesex HA1 3QZ


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for a preliminary hearing Mr Kantilal Gandhi seeks to pursue an appeal against the decision of the London North Employment Tribunal contained in extended reasons at pages 7-9 of the appeal file before us, sent to the parties on 20 September 1999 after a hearing on 26 August 1999. The proceedings before the Tribunal were brought by originating application by Mr Gandhi, who at that time had the assistance of a Trade Union, alleging disability discrimination and in addition a claim for breach of his employment contract which was subsequently not pursued. The background to his complaint was that he had been working for some 7½ years as a Postman for the Royal Mail, in a position as a full time postman which he now happily still occupies. He had had an accident at work and had been assessed as having a 20% disability, which temporally prevented him working normally. Happily he has since recovered from his accident and has been able to return to full-time working, even though he has now passed his 60^th birthday, and is continuing in full time employment as a postman. Until he was 60 he had retained his full-time pay and status despite his disability. There was however a period of some 6 months, between his attainment of the normal retiring age of 60 and when he was able to resume full time working, when he was transferred to part time employment. As a result he was only paid in that period for the actual hours he was able to work, which resulted in a reduction of his remuneration from the level he had been receiving before he was 60. The resolution of his disability problems appears to have been a relatively simple matter as his recovery proceeded, and in the end following discussions with the Post Office in which his Trade Union was involved, he was provided with a special chair to assist him in his work (which we were told consisted mainly of sorting mail), so that he did not have to stand up all the time and this appears to have alleviated the problems.
2. When the matter came before the Tribunal on 26 August 1999 it appeared that the applicant had recently lost the services of the Trade Union which had been representing his interests and also of a solicitor, whom he had consulted. That had happened only a few days before the date fixed for the Tribunal hearing of his complaint. It is also material that some two months before the Tribunal hearing, the matter of his status as a full time postman had been effectively resolved. Following negotiations between his trade union representative and the post office management it had been acknowledged that he was to be reinstated with the full status of a full-time postman, which as he informed the Tribunal was what he had been primarily concerned about in bringing the proceedings in the first place.
3. The proceedings alleged that he had been discriminated against by reason of the disability he had suffered, but the only potential adverse effect on him, in the light of the acknowledgement by the Post Office of his resumption of full time status, would have been in the intervening period when he was classified only as a part time employee and had been paid accordingly. At the opening of the proceedings, the applicant made it clear to the Tribunal that he was not happy to continue with the hearing unrepresented, and wished to take further legal or other professional advice. What then transpired is recorded in the Tribunal's extended reasons for the decision sent on 20 September 1999 at paragraphs 4 on pages 8-9 of our appeal file, which it is convenient simply to read in full:

4. "The Applicant, on the morning of the hearing on 26 August 1999, sought a postponement of the hearing as he wished to discuss with legal representatives a proposed settlement put forward by the Respondent. This settlement had been proposed in mid-August and advice was given by his then solicitors. The solicitors and his trade union were on 26 August no longer working for the Applicant. The Applicant, in response to a specific enquiry by the Tribunal, indicated that he had no interest in seeking any compensation as a result of this claim. He wished to have respect and to be a full-time postman.

5. "The Tribunal refused the Applicant's request for a postponement.

6. "The Tribunal allowed the Applicant time to discuss with the representatives from the Post Office whether the case could be resolved amicably between them. On hearing that matters had not progressed, the Tribunal then invited the Applicant to say why the case should not be struck out on the basis that it was vexatious and frivolous to continue, given that there was nothing that the case could achieve for the Applicant which had not already been achieved by negotiation between the Applicant's trade union and The Post Office management. The Applicant, in seeking the adjournment, had put before the Tribunal a letter dated 12 July 1999 in which The Post Office wrote to advise the Applicant that as from 28 June 1999 his position would be Full-time postman. He was invited to sign the variation in his contract of employment."

7. "It appeared to the Tribunal that the Applicant's main concern was that he had, for a period of approximately six months, been known as an Associate Postman because he had been working and been paid as part-time but that matter had now been remedied and there was no declaration that the Tribunal could make matters any different or better for the Applicant. There therefore appeared to the Tribunal to be no purpose in the case proceeding, and for the Applicant to seek to take the matter further would fall within the meaning of rule 13 (2) (d) and mean that he was conducting the proceedings in a way that was vexatious or frivolous.

8. "The Tribunal allowed the Applicant the opportunity to put forward any argument or any documents he wished to in support of a claim that the matter should proceed, but the Applicant was clear that he wished to take legal advice although he did not seek to recover any compensation.

9. "In the light of the Applicant's argument the Tribunal considered that, to allow the case to proceed further, would be an abuse of process and therefore struck out the claim under rule 13 (2) (d)."

4. The Applicant then sought to have that decision reviewed on grounds put forward on his behalf by another firm of solicitors in a letter dated 4 October 1999. That application was also refused by a further Tribunal consisting of the same Chairman as had conducted the previous proceedings, but on this occasion apparently sitting alone, as recorded in extended reasons dated and sent to the parties on 13 October 1999 at pages 13-15 of the appeal file before us. Again it is necessary to refer to the reasons as they are given by the Tribunal to understand the issues arising before us on this appeal. I should make clear that the grounds put forward in the solicitor's letter had sought a review on the ground that it had been unreasonable to exercise the power under rule 13 (2) (d) to strike out the proceedings, in particular as the Applicant had been unrepresented before the Tribunal on 26 August 1999 and had himself not been conversant with the Tribunal's proceedings rules. The suggestion was also made that the Applicant had been confused at the hearing in what he told the Tribunal as a result of language difficulties, and the disadvantages it was claimed he was suffering as a result of no longer having any legal or other expert representation. In the extended reasons for declining to review the decision striking out the proceedings, the Chairman recorded that on 26 August 1999 the Applicant had appeared in person to pursue a complaint of disability discrimination, and the Respondents, the Post Office, had been represented by counsel. In the words of the Chairman:

2. "The Applicant, who arrived late, had prior to the date of hearing sought a postponement on the grounds that his solicitors had ceased to represent him shortly before the hearing and he wished to have representation and prepare his case. The adjournment was refused. The Applicant on the day of hearing handed in a letter again seeking a postponement of the hearing. This application was opposed by the Respondents, who whilst they had sympathy for the Applicant, considered that the assistance to be provided by the Tribunal would enable the Applicant to put forward his case appropriately."

3. "The Tribunal refused the application to postpone the hearing.

4. "In order to understand the case the Applicant wished to put forward, the Chairman invited the Applicant to say what he hoped would be the outcome of the proceedings. He said very specifically that he was not looking for compensation – he was looking for respect and to be named a postman.

5. "The Tribunal, for the reasons set out in the decision of the hearing on 26 August 1999, now corrected as regards a typographical error, set out why they decided that the case should be struck out. An application for a review of that decision was received on 4 October 1999. The application for review is refused. The reasons for the refusal are: -….

(c) "It is asserted in paragraph 1. (v) of the request for review that the Applicant did not indicate he was not interested in seeking any compensation. He was specifically asked that. He was asked in very bald and simple terms and he quite clearly stated for the benefit of all present that he was interested only in his status.

(d) "The proceedings were conducted in clear, simple English, with no person seeking to use any legalistic terms as it would have been wholly inappropriate to do so given that the Applicant was unrepresented, that English was almost certainly not his first language, and that the Applicant was clearly anxious about the proceedings.

(e) "All the matters set out in request for review paragraph 1. (vii) apart from the matter of compensation was fully put before the Tribunal. The Applicant had the opportunity, and took that opportunity, to put forward his views. He had the opportunity and took the opportunity to put forward documents in support of what he wished to say. The assertion within the application for review that the Applicant did not suggest he was not interested in compensation is factually incorrect. Had the Applicant given any indication that there was a financial aspect to his claim, there would have been some purpose in allowing the claim to proceed. In the absence of there being any such financial implication, there clearly was no purpose for the Tribunal to hear the claim as he achieved what he had set out to do, namely have the respect of being a permanent full-time postman.

(f) "In all the circumstances, the Tribunal gave the Applicant every opportunity to present his case about why it should proceed and not be struck out. The arguments he put forward on the day are not those that he now seeks to put forward through solicitors in an application for review.

(g) "I do not therefore consider that the request for review has any merit as it appears to be based on completely different arguments from those which the Applicant himself wished to put forward. At the hearing he was given every opportunity to say what he wished for as long as he wished."

5. On that footing the application was held by the Chairman not to fall within the provision in the Tribunal rules for review and reconsideration of previous decisions and the application for a review was therefore dismissed. By a Notice of Appeal submitted on his behalf by the same solicitors, dated 1 November 1999, the Applicant sought to have the original striking out decision set aside, on the ground principally that there had been a breach of natural justice in the Tribunal having proceeded with the case on 26 August 1999 and having struck it out as on the ground that it would have been frivolous to pursue it in the circumstances as they appeared to the Tribunal on that date. Mr Dobe who appears before us on behalf of the Appellant developed that main submission on various grounds which he put before us, but all of them really come back to the principal submission that the Tribunal has erred in not granting the Appellant an adjournment of the proceedings to enable him to take further legal or other expert advice; and had been responsible, albeit unwittingly, for a breach of natural justice in proceeding with and striking out the application at the hearing on 26 October 1999. In particular it was submitted to us that there had been an error on the part of the Tribunal in proceeding at all, when the Appellant was unrepresented and in proceeding on the basis of his apparent indication that he was not pursuing any claim for compensation, when as Mr Dobe submitted to us, it ought to have been apparent to any reasonable tribunal that there was confusion on the part of the appellant. Thus it was wrong for the Tribunal to have proceeded on the basis of what they were told by the Appellant himself when the point was put to him at the hearing.
6. The Appellant's case has been extremely well and clearly argued on his behalf by Mr Dobe before us and we have been considerably exercised as to whether there really is any arguable point of law in this case to warrant us directing that it should go forward for a further full hearing before the Employment Appeal Tribunal. In the end, despite having considered all the arguments, we have concluded that it has not been shown that there is any arguable point of law here, to warrant the Employment Appeal Tribunal interfering with decisions which are essentially matters of discretion for the Employment Tribunal dealing with the hearing of a case of this nature to determine. In the first place, we were referred to the question of fact, on whether the appellant had given a sufficiently clear indication that he was not pursuing any claim for compensation before the Tribunal to warrant the Tribunal relying on that as an abandonment of his claim for any financial compensation. The Tribunal's extended reasons on both of the occasions when this matter was considered have very clearly and specifically set out the Tribunal's understanding and from that it is quite clear that the Tribunal were given to understand in unequivocal terms by the Applicant that he was not seeking to pursue any question of compensation in the proceedings before the Tribunal, whatever other discussions there might have been behind the scenes. The terms on which this was put to him and the nature of his response are made clear beyond any doubt by the paragraphs in the two sets of extended reasons, which we have already quoted. This Tribunal has been referred to a letter dated 23 August 1999 from Mr Gandhi to his own solicitor which does contain some reference to compensation, but we have been shown no evidence that this was put before the Tribunal when the question of what issues were still live on the application itself was put to Mr Gandhi at the hearing on 26 August 1999, and we have concluded therefore that the contents of that letter are not a matter which we should take into account in judging the Tribunal's exercise of their discretion as to how to deal with the proceedings on the material as it was presented to them on that date.
7. The second ground of criticism is that the Tribunal placed the Applicant at an unfair disadvantage by using terms such as frivolous and vexatious which are legalistic terms with which he might well be unfamiliar, and that it was wrong for them to proceed in the way they did with an unrepresented applicant in view of what was suggested to us was a 'lack of sufficient understanding of the English Language on his part.' We have not been satisfied that that gives rise to any arguable ground for saying that the Tribunal erred in law or dealt with the proceedings unfairly. It is of course the case that Mr Gandhi is an experienced clerical worker in the Post Office, having held his position for some 7 or 8 years by the time of the Tribunal proceedings. The question of whether he wished to pursue a claim for compensation or not is not a question involving refined legal concepts, but a straightforward question of fact which any person with the intelligence and knowledge of the English Language needed for a permanent job in the Post Office must, in our view, be capable of understanding without difficulty. The Chairman's record of both sets of proceedings makes it clear that the question was put to him in simple and non-legalistic terms and in view of the way the matter is recorded in the Tribunal's extended reasons on both occasions, we think there is no ground for any inference that the Chairman who saw and heard the Applicant at the proceedings must be taken to have wrongly accepted the clear answer he gave without being satisfied that he understood the substance of what was being said and the implications of it.
8. The third submission Mr Dobe made was that the Tribunal had erred as a matter in law in reversing the burden of proof and requiring the applicant to satisfy them that the proceedings should not be struck out, rather than having considered whether affirmatively it was a case requiring that drastic procedural action. He referred us to authority for the well-established principle that to strike out proceedings is a step that should only be taken cautiously and in plain and obvious cases, which as a general principle is of course correct. However we are not satisfied that the Tribunal in this case did other than proceed on the basis that the application should only be struck out if they were affirmatively satisfied that there was a plain and obvious case for doing so. The view the Tribunal appear to us to have clearly taken was that this was a plain and obvious case, where it had been confirmed to them that the one potential claim that might have been worth pursuing was not in fact being pursued by the Applicant at all. In the circumstances as they were before this Tribunal, we are not satisfied that it is arguable that they fell into error of law in putting that to the Applicant and inviting him to explain to them what purpose there would be in the proceedings being allowed to continue, as distinct from what Mr Dobe suggested which was that they should only have considered the question of striking out the proceedings on a specific submission made to them by or on behalf of the Respondents. We are not satisfied that there is any error of law in a Tribunal considering such a question of its own motion, in a case where it appears obvious that there is little point in the proceedings going ahead unless some ground can be shown to make that worthwhile.
9. Fourthly, it was submitted that it was unreasonable in the circumstances for the Tribunal to have declined Mr Gandhi's request for an adjournment, in particular as he had recently lost the representation he had previously had (apparently coinciding with the successful conclusion of negotiations between his trade union and the Post Office about the question of his status, which he had made clear was, at any rate, his primary concern). Whether to allow an adjournment for legal representation in such circumstances, as the Applicant had asked, is in all cases, a matter of discretion for the Tribunal; and such matters of discretion are we consider issues on which this appeal Tribunal should be slow to interfere, unless a clear error on the part of the Employment Tribunal has been shown. The Extended Reasons to which we have referred show clearly that the relevant questions that a Tribunal should address on an application for such an adjournment were indeed considered. We accept that the Tribunal in these circumstances, should only proceed to consider striking out the proceedings in plain and obvious cases but as matters stood before this Tribunal on 26 August 1999, we have not been satisfied that there is an arguable ground for saying that it was improper for them so to proceed. In particular, they understood there to have been a clear statement by the Applicant himself that he was not pursuing any question of compensation, and they were given no clear indication of any relevant issue on which he was seeking to take the "legal advice" to which they referred specifically in paragraph 8 of their extended reasons on page 9.
10. In those circumstances, although as we say we have been exercised by the very well argued submissions that Mr Dobe made to us on behalf of the Appellant, we have concluded that there is no arguable ground in law to warrant us directing that this case should go forward for a full hearing before the Employment Appeal Tribunal, and we accordingly now unanimously dismiss this appeal.