United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H GREWAL (of Counsel) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH
For the Respondents	MS R CRASNOW (of Counsel) Dibb Lupton Alsop 125 London Wall London EC2Y 5AE


 


JUDGE PETER CLARK: This is an appeal by the applicant before the London (North) Employment Tribunal, Mr Sanni, against a decision of a full tribunal sitting under the chairmanship of Mrs M H Don on 4th March 1998, promulgated with extended reasons on 23rd March 1998, striking-out his complaint of unlawful direct race discrimination against his former employer, the respondents SmithKline Beecham Limited, under rule 4(7) of the Employment Tribunal Rules of Procedure 1993 ['the Rules'].

The complaint

1. By an Originating Application presented on 19th March 1997 and drafted with the assistance of his then representatives, Hammersmith & Fulham CRE, the appellant indicated in Box 10 that his claim was for unfair dismissal/racial discrimination.
2. Attached to that form IT1 were details of his complaint running to 2½ pages of typescript. In essence he contended that his dismissal by the respondent following some 23 years service as an electrician in the maintenance department on grounds of redundancy was unfair and that he had been subjected to unlawful racial discrimination.
3. In this appeal Ms Grewal has, we think accurately, identified six matters raised in the details of complaint relied on by the appellant as pointing to or constituting alleged racial discrimination. Of particular materiality to the present appeal were these assertions:

(1) that the facility manager, Ms Lisa Becker, had in the past to the knowledge of the appellant and other colleagues, expressed a dislike of black people (Details. Paragraph 3) and

(2) that Ms Becker had not discussed any performance review and development programmes with the appellant, but she had done so with all other members of staff. (He later pleaded that he was the only black in the department). (Details. Paragraph 9).

Procedural history

4. The respondent lodged a Notice of Appearance resisting the claims on 28th April 1997. On 29th August 1997 the respondent's solicitors wrote to the appellant, who was then in person, requesting further and better particulars of his Originating Application. Of relevance to the race discrimination claim and to this appeal they sought the following further information:

(1) of the allegation that it was known by the appellant and other colleagues that Ms Becker had in the past expressed a dislike of black people ("the paragraph 3 allegation")

"Request

1. Please indicate each and every instance at which it is alleged that Ms Becker, has in the past, expressed a dislike of black people, stating on each instance:

(a) the place and forum within which such expression was made;

(b) persons to whom such expression was made;

(c) the gist of the words used by Ms Becker;

(d) whether in relation to any such instance the Applicant, or the person to whom such an expression was made made any formal complaint, and if so, when and to whom."

(2) of the allegation:

"She has responsibility of consulting for and on behalf of the company with all employees performance review and developments programmes. She will not discuss anything whatsoever with me. She spoke to all other members of staff. I approached her and asked her why discrimination in not discussing this with me. Her reply is that I am a trouble maker."

(the paragraph 9 allegation):

"Request

5. Please provide the following details in respect of this alleged conversation:

(a) the date or approximate date on which this conversation took place;

(b) the forum or location in which this conversation took place indicating where possible any other members of staff who were present;

(c) whether any formal complaint was made in respect of the alleged response by Ms Becker, and if so, when and to whom."

No reply having been received to that request the respondent's solicitors applied to the tribunal, by letter of 12th September 1997, for an order. By letter from the tribunal dated 24th September a Chairman ordered the particulars requested in the letter of 29th August 1997 to be given by 8th October 1997.

5. Within the time specified solicitors by then instructed for the appellant provided a partial answer to the relevant requests. As to the paragraph 3 allegation it was said:

"1) Para 3:

a) On more than one occasion she made her feelings known by her attitude in the way she related to me. I was the only black in the department.

b) To a colleague who remains in employment in SmithKline Beecham.

c) Nuisance and Troublemaker during a (PRDP) in May 1996. Chris Morris was present on that occasion."

As to the paragraph 9 allegation:

"3) Para 9:

I was never invited to any staff appraisal sessions until May 1996 at which meeting Ms Becker refused to discuss with me on the ground I was a nuisance and troublemaker."

6. Dissatisfied with those answers the respondent applied for an order striking out the Originating Application in whole or in part by letter of 8th October 1997. That application came before a Chairman, Mrs T J Mason, at a hearing for directions held on 26th November 1997. The directions given on that occasion were put in a letter from the tribunal to the parties dated 3rd December 1997. The complaints of both unfair dismissal and racial discrimination were to be heard on 4th to 6th March 1998. As to the question of further and better particulars of the Originating Application the Chairman considered that the particulars already given were not satisfactory. She made a further order for particulars of paragraphs, 3, 8 and 9 as requested by the respondent on 29th August 1997 to be given on or before 11th December 1997, warning that failure to comply with the order may result in the striking out of the Originating Application.
7. On 10th December 1997 the appellant's solicitors supplied further particulars. As to the identity of the other colleagues to whom Ms Becker had allegedly spoken about her dislike of black people, it was said that the person to whom she had spoken wished to remain anonymous and he was not named. Further, it was said (allowing for an agreed typographical error) that no formal complaint was made by the appellant. An answer to the paragraph 9 allegation took the matter no further. The appellant's case on that aspect was complete
8. The respondent's solicitors were still not satisfied. They made a further application to strike out. In particular, they complained that the appellant had still not named the employee to whom Ms Becker had allegedly expressed her dislike of black people.
9. On 29th January 1998 the tribunal wrote to the appellant's solicitors, directing them to show cause why the complaint of race discrimination should not be struck out in writing by 12th February 1998, in accordance with rule 4(7).
10. On 5th February the appellant's solicitors wrote to the tribunal, giving the name of the previously unidentified employee as Gerry Woolford. A copy of that letter was forwarded to the respondent's solicitors, who responded on 16th February, contending that they had still not been told the form in which the alleged remarks were made, the gist of those remarks and whether or not a formal complaint was raised. The strike out application was maintained.

The Employment Tribunal decision

11. That strike out application in respect of the race discrimination claim was dealt with at the commencement of the merits hearing on 4th March 1998. It succeeded. The tribunal then went on to hear and determine the unfair dismissal complaint. The appellant was found to have been unfairly dismissed, but was ultimately unsuccessful in his claim for re-employment or compensation.
12. The tribunal's reasons for the strike out order are contained in paragraph 6 of the extended reasons as follows:

"6 We considered whether the Order [of 3rd December 1997] has been complied with. We considered the letters of 10 December 1997 and 5 February 1998. We do not find, as a fact, that these letters constitute further particulars of paragraph 11 sub paragraphs 3, 8, 9 and 11 of the Originating Application. We do not find that the Order for Particulars has been complied with and pursuant to Rule 4(7) of the Regulations, we strike out that part of the Originating Application which refers to the allegation that Mr Sanni has been racially discriminated against. The allegations are couched in unclear and vague terms. A Respondent is entitled to know on the day of the hearing the case that has to be met and in this particular case the Respondent does not know fully the case that has to be met. As we have struck out that part of the Originating Application pursuant to Rule 4(7) of the Regulations, it is not necessary for us to consider whether the Originating Application should be struck out pursuant to Rule 13(2)(e) of the Regulations as being scandalous, frivolous or vexatious. It must be emphasised that our decision relates to the Order contained in the letter, dated 3 December 1997. We note that there was a prior Order for Particulars, dated 24 September 1997 and that this had not been considered to have been complied with and that was the reason for the further Order contained in the letter dated 3 December 1997."

The Appeal

13. In support of the appeal Ms Grewal contends that the tribunal fell into error as a matter of law in two respects:

(1) an Employment Tribunal must exercise their discretion to strike out under rule 4(7) in accordance with the principles followed by the High Court and County Courts. National Grid Co plc v Virdee [1992] IRLR 555. We are not here concerned with the new Civil Procedure Rules. Provided further and better particulars are given bona fide within the time provided for in the relevant order, even if imperfect in the sense that not every question is answered in full, that is sufficient compliance to prevent a strike out order being made. Reiss v Woolf [1952] 2 QB 557. Ms Grewal submits that the particulars given in this case passed that test; and

(2) that it is only in the most serious cases that punishment shall be considered. The power to strike out should only be used in cases where any judgment ultimately obtained could not be considered to be fair between the parties. Virdee.

14. Accordingly she puts the appellant's case under the second category of grounds for allowing an interlocutory appeal to the EAT identified by Wood J in Adams & Raynor v West Sussex County Council [1990] IRLR 215, namely whether the tribunal's discretion had been exercised within "guiding legal principles".
15. Neither Reiss nor Virdee was cited to or referred to by the tribunal, we are told by Ms Crasnow, who appeared below.
16. Dealing with the first point, Ms Crasnow referred to the procedural history of the matter which we have earlier set out. She submits that despite being given every opportunity the appellant and/or his advisers still had not given proper particulars by the 4th March hearing. In these circumstances the tribunal was, as a matter of discretion, entitled to make the strike out order.
17. We disagree. Although the appellant had still not answered each and every question the test for striking out is not whether each demand for particulars has been substantially met but whether the appellant had served, in this case two documents, coupled with his solicitor's letter dated 5th February 1998, which could fairly be entitled 'particulars', made in good faith. Per Somervell LJ, approving the judgment of Devlin J below, in Reiss. 59-60. In our judgment the appellant passed that test. The strike out order ought not to have been made.
18. However, even if we were wrong about that, we have considered Ms Grewal's second submission. As to this, Ms Crasnow was driven to submit that there could not be a fair trial of the race complaint so far as the respondent was concerned because they had not been told the precise words allegedly used by Ms Becker to Mr Woolford (or Walford, as he is referred to in the respondent's solicitors' letter of 16th February 1998) about the appellant and the place and time when those remarks were made, and whether the appellant made a formal complaint.
19. Again, we simply cannot accept that submission. The nature of the appellant's case was that Ms Becker had told Mr Woolford she did not like black people. There was no suggestion below, or before us, that Mr Woolford had left the respondent's employment. Surprisingly, Ms Crasnow was unable to tell us whether the respondent's solicitors had taken a statement from Mr Woolford. Bearing in mind that this was one of a number of allegations of race discrimination made by the appellant against Ms Becker it does not seem to us that a fair trial of that issue was impossible. The respondent knew the nature of the case on race discrimination they had to meet. Whether there is merit in the appellant's complaint is a matter which could and should have been determined at the full hearing, along with the unfair dismissal claim.
20. In these circumstances we shall allow this appeal, set aside the strike out order and direct that the appellant's race discrimination complaint be remitted to a fresh Employment Tribunal for a hearing on its merits.