United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


JUDGE A WILKIE QC

1. This is an appeal by Mr Rashid against an Order of the London South Tribunal made on 22 April of this year that his Originating Application in its entirety, where he brought claims against the London Borough of Southwark on various grounds, should be struck out on the ground that they are frivolous and or vexatious. It is our judgment that Mr Rashid's appeal does disclose an arguable case, and in this judgment we will attempt, as best we can, to identify the focus of that case.
2. On 9 October 1998 he issued an Originating Application claiming unfair dismissal, racial discrimination and breach of contract against the Respondent. He gave the dates of his employment as 6 September 1993 to 13 July 1998. On 26 October 1998 the Respondent entered a Notice of Appearance. In that Notice they stated that he had not been dismissed but asserted that he was still employed. Also on that date the Respondent requested further and better particulars of the Originating Application to be supplied within 14 days.
3. On 28 October Mr Rashid wrote to the Tribunal requesting an extension of time for supplying answers to that request. On 13 November Mr Rashid wrote to the Tribunal noting that the IT3 had confirmed that he was still employed. In that letter, he requested the Employment Tribunal to put his claim on hold. That request was not acceded to and on 24 November an Interlocutory Order was made to the effect that on or before 9 December he should send to the Respondent further particulars of his claim which had been requested by them in the letter of 26 October. He was notified that a failure to comply with that Order may result in his application being struck out, either in whole or in part.
4. On 7 December, some two days before the deadline, Mr Rashid wrote to the Tribunal, he referred to his letter of 13 November which had requested them to put his IT1 on hold. He noted that in their Order of 24 November, they did not explicitly deal with his request but implicitly dealt with it by assuming that the matter continued.
5. In those circumstances his letter of 7 December requested the Tribunal to put his application and anything related to it on hold, including the Interlocutory Order of 24 November, and in the event that they were not minded to agree to that, he requested an extension of the time limit of the Interlocutory Order from 9 December to some time in the new year. On 9 December a Chairman of the Tribunal made a number of Orders, having considered his letter of 7 December, the fact that he was still in employment and the Order dated 24 November. The Order of the Tribunal refused his application to stay the Interlocutory Order which had been made on 24 November; refused his application to extend time for compliance with that Order to an unspecified date in the new year, and gave him notice to show cause why that part of his Originating Application which claimed that he had been unfairly dismissed, should not be struck out on the grounds that it was frivolous. That was on the basis that it did not have any reasonable prospect of success, since he had not been dismissed.
6. On 15 January, he was written to further. This was on the basis that the Order dated 9 December had not given him a deadline by which he was to show cause why his claim relating to unfair dismissal should not be struck out. That letter rectified that omission by formally warning him that, unless he showed cause on or before 22 January, then that part, of his Originating Application (i.e. his unfair dismissal), would be struck out.
7. On 22 January, he wrote a letter to the Tribunal indicating in a series of 11 numbered paragraphs why it was that he considered that he had been effectively dismissed, and therefore why his application for unfair dismissal should not be struck out. He concluded by requesting, once again, that, given these complex circumstances, the Tribunal should put his entire IT1 on hold pending the outcome of an internal grievance procedure; he then asked the Tribunal for certain advice.
8. On 29 January the Tribunal wrote again to Mr Rashid, dealing with his letter of 22 January. The letter stated that he needed to seek advice, either from his trade union or from some other adviser, and gave him an extended deadline to 9 February for him to show cause why his claim for unfair dismissal should not be struck out.
9. Mr Rashid wrote to the Tribunal again on 8 February, apparently with an explanation of the delay. This is not a document of which we have a copy. Following upon receipt of that letter, on 11 February the Tribunal wrote to Mr Rashid to say that his letter of 8 February was accepted as showing cause why his application should not be struck out, and notified him that a copy of this letter had been sent to the Respondents for their comments within 7 days.
10. On 14 February, Mr Rashid wrote again to the Tribunal. He expressed his gratification at the indication that he had shown cause as why his application should not be struck out, however he sought clarification. In particular, he reminded the Tribunal that the substantive argument why it should not be struck out, had been set out in his letter of 22 January, and that his letter of 8 February had simply asked for a further extension of time. He therefore indicated that he believed, or would have like to have thought, that the Tribunal had accepted the reasons stated in his letter of 22 January. He also indicated his understanding that the application referred to in the Tribunal's letter of 11 February was limited to his unfair dismissal claim only;

the Tribunal's letter of 11 February having referred to his application at large, without limiting it to the unfair dismissal application.

11. On 4 March the Tribunal wrote again to both parties. In that letter, it acknowledges that the letter of 11 February did contain an error in that it should have referred both to his letter of 22 January and 8 February which, together, were accepted as showing cause why the application should not be struck out on the basis "of correspondence". That letter then goes on to say that the Chairman who had made the Order dated 9 December, (namely the Order requiring that he show cause), had reviewed the file and considered that there should be a preliminary hearing to consider the following:-

"Whether the whole of the Originating Application …….or any part of it should be struck out under Rule 13(2)(d) of the Employment Tribunal Rules of Procedure 1993 on the ground that it is frivolous and /or vexatious"

It is right to say that this letter does not indicate to Mr Rashid what the basis of such consideration would be, that is to say whether it would constitute a re-opening of the issue limited to the unfair dismissal claim, whether it would relate to his continuing failure to respond to the request for further and better particulars, or for any other reason. It appears from the extended reasons for the Tribunal's ultimate decision that the Tribunal had received a letter from the Respondent on 15 February, which had requested that the Originating Application be struck out in its entirety because the Applicant was in breach of the Order for particulars made on 24 November, as well as on the basis that the Applicant was, on his own admission, still employed by the Respondents.

12. There is no evidence before us that Mr Rashid ever received that letter of 15 February or had any notice that this was the basis upon which the Chairman had decided to re-list the case: on the contrary the letter of 4 March rather indicates that this was a step taken by the Chairman of his own motion, having reviewed the file. At any rate, on 16 March a hearing notice was issued for a hearing to take place on 22 April. That notice indicated that the hearing

"will be limited to considering the following preliminary issues, as referred to in our letter of 4 March".

Thus Mr Rashid still had not been told that, in essence, the issue for consideration on 22 April was his continuing failure to comply with the request for further and better particulars.

13. On 18 March, Mr Rashid wrote to the Tribunal indicating that he had received a Notice of Hearing. He wished to draw their attention to two points, both relating to the question of whether his employment was continuing or whether it had come to an end. He says that under these circumstances, if they considered that a hearing of a preliminary point is still necessary:

"I should be glad to attend it",

however he did ask for the hearing to be postponed in order to accommodate his being

on pilgrimage between 19 March and 5 April. This, it seems to us, is a letter of some significance, as it reveals that Mr Rashid was still focusing exclusively on the question whether he was still in employment or not, as the case may be, and that he was not focusing at all on the question of the continuing failure to supply the further and better particulars.

14. On 31 March the Tribunal wrote to Mr Rashid in response to his letter, indicating that the Chairman had asked him to be informed that the application to postpone the case was refused, on the footing that there was more than sufficient time to prepare for the hearing. There is nothing in that letter to put Mr Rashid on notice that matters beyond the question of unfair dismissal would be considered at the hearing on 22 April.
15. The extended reasons for the decision to strike out the whole of his claim was on two bases: in paragraph 12 they say this:

"The tribunal hearing the preliminary hearing have concluded that the unfair dismissal claim should be struck out on the basis that the Applicant agreed that he was not dismissed until 7 March 1999."

That, it is arguable in our judgment, contains an error in that he had already had that matter considered and had had it decided in his favour.

16. Secondly, and even more importantly, they concluded that the remainder of his claim as particularised in box 1 of his Originating Application should be struck out on the ground that he failed to comply with the Tribunal's Order dated 24 November to provide further and better particulars of his claim, and did so on the basis that the manner in which the proceedings had been conducted has been frivolous or vexatious.
17. That was an issue which had not been referred to specifically in the correspondence leading up to this preliminary hearing, and the apparent misconception of Mr Rashid as to the scope of the argument to be considered on 22 April, had not been corrected, nor, it appears, was he in receipt of the letter of 15 February, in which the Respondents had indicated that they would wish to argue on the basis of failure to provide further and better particulars.
18. We informed Mr Rashid this morning that it is not for us at this stage to determine this appeal finally, but it is our judgment for the reasons set out above that his appeal is certainly arguable and therefore should proceed to a full hearing at which the London Borough of Southwark will be able to be present, and put forward their arguments in support of the decision of the Employment Tribunal. We have considered how long this case will take in the EAT, and in our estimation half a day should be set aside for it to be heard, this is a category C case and there is no question of any notes of evidence being relevant.