United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BEN UDUJE (of Counsel) Messrs Russell Jones & Walker Swinton House 324 Grays Inn Road London WC1X 8DH
For the Respondent	MR RICHARD HARRISON (of Counsel) Royal Mail Post Office Legal Department Inpact House 2 Eldridge Road Croydon Surrey CR9 1PT


 


MR JUSTICE NELSON

1. This is an appeal which arises out of a strike out by an Employment Tribunal of the Originating Application made by the Appellant in this matter, dated 21 January 1999. The history of the matter, briefly is this.
2. The Originating Application of that date having been received by the Tribunal on 22^nd January 1999 and duly dealt with, the Respondent's Notice of Appearance dated 19 February 1999 was received on 23 February 1999. Up to this point no unusual step had been taken and the matter had progressed in the ordinary way. On 13 April 1999 the Employment Tribunal sent out its standard direction letter to both parties accompanied with a letter of the same date, addressed to the Communications Managers Association, CMA House Tyford, Reading who were representing the Applicant. That letter said as follows: -

"A Chairman of the Tribunal has directed to inform you that the Applicant should provide in writing within 7 days (I) under which legislation the applicant claims that he has been the subject of discrimination and (ii) with whom the applicant is comparing himself?"

3. In fact in his application the Applicant had said that the nature of the complaint he made was "Victimisation and Discrimination" without further particularising; he had in the body of his details under paragraph 11 of his Originating Application set out the nature of his employment as Fleet Services Manager with the Post Office and also described the circumstances in which his claim arose and details of those other employees who were employed in similar related positions.
4. The letter of 13 April 1999 was, we are told, but unknown to the Employment Tribunal, not in fact received by Mr Butley of CMA, on behalf of the Applicant. What followed, because there was no reply to that letter on behalf of the Applicant to the Employment Tribunal was a letter of 27 April 1999, sent by the Employment Tribunal, this time to Mr D A Jadeja, the Applicant himself and to Mr Butley stating as follows: -

1. "I refer to the Originating Application and to the papers in this case. A Chairman of the Tribunals has asked me to write to you.

2. It appears to the Chairman that you are not pursuing this claim. For that reason he is considering whether to strike out the Originating Application for want of prosecution. If you wish to give reasons why this should not be done, please send them to me in writing within 14 days of the date of this letter."

5. According to CMA a letter of 5 May 1999 responding to the letter of 27 April 1999, but not to the letter of 13 April 1999, which had not been received, was sent. That letter was not received by the Employment Tribunal as a consequence of which, on 14 May 1999, the Employment Tribunal struck out the Originating Application. It did so on the basis that information had been requested by letter of 13 April 1999, but the Applicant had not responded to that letter. On 27 April 1999, the Applicant was warned that unless written reasons were given within 14 days as to why an Order should not be made, the Chairman would consider striking the Originating Application out for want of prosecution. No reasons having been provided in answer to that letter as to why the claim should not be struck out, he ordered that the Originating Application be struck out for want of prosecution.
6. On 24 May 1999 a letter was written by Mr Butley on the Applicant's behalf to the Employment Tribunal saying that he had received a striking out order and that the reasons why the matter had not been progressed had been set out in the attached correspondence. The attachment is not within the file, but the parties before this Tribunal have assumed, and on the face of it correctly, that that attachment refers, to the letter of 5 May 1999. The request was therefore, that the striking out order should, Mr Butley requested in his letter of 24 May 1999 be urgently reconsidered. The matter was reconsidered by the Chairman alone who in a decision on the application for a review gave extended reasons on 27 May 1999 as follows: -

1. "The Applicant presented an originating application on 22 January 1999 complaining of race discrimination. He applies for review of the order to strike out his claim on the grounds that he put forward reasons why it should not be struck out.

2. The reasons contained in the letter of 5 May 1999, never received by the Tribunal, are;-

a) The matter is still subject to internal appeal; and

b) The union was concentrating on that matter rather than the Tribunal.

1. The application for review is refused. Neither of the reasons put forward, even if they had been known to the Tribunal, would prevent the decision being reached that the Applicant was not pursuing his complaint. I do not therefore consider that it would be in the interests of justice to grant the review."

7. It is against both decisions to strike out and the refusal to review that this appeal is brought. It should be noted that the letter of 13 April 1999 requesting information as to under which legislation the Applicant complained that he had been the subject of discrimination and with whom the Applicant was comparing himself, appears clearly, on the face of it, to be a request for further particulars under Rule 4 of the Employment Tribunal Constitution Regulations 1993, Schedule 1(3). This rule states that the Tribunal may on the application of a party made by notice to the Secretary, or of its own motion require a party, in writing, to furnish to the Tribunal, a written answer to any question if it considers that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings and be likely to assist the progress of the proceedings for that answer to be available to the Tribunal before the hearing. It is conceded by the parties that that must have been the Rule under which the letter of 13 April 1999 was written.
8. There is in fact provision under Rule 4, Sub Rule 7 for the Tribunal to strike out the whole or part of the Origination Application should there be a failure to comply with a requirement to give further answers or particulars under a notice sent out pursuant to Rule 4 (3). The Tribunal did not however, choose to go down that particular route, as will be appreciated from the letter of 27 April 1999 made no reference to the earlier request for particulars in any way at all, but simply said that consideration was being given at to whether to strike out the Originating Application for want of prosecution. Reasons why this should not be done should be sent in writing within 14 days of the letter. It appears, on the face of it that that letter was sent not pursuant to Rule 4 (7), but under Rule 13 of the same rules, entitled Miscellaneous Powers which provide that a Tribunal may, subject to paragraph 3, on the application of the Respondent or of its own motion order an Originating Application to be struck out for want of prosecution.
9. Rule 13 (3) requires that before making an order under sub paragraph 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. This paragraph should 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.
10. The appeal is based as it is presented to this Tribunal on two essential grounds in relation to the strike out which I shall deal with first. Firstly, it is said that having embarked upon a procedure under Rule 4, the Tribunal should have continued to follow that procedure and in failing to do so it was acting in error. Secondly, even if it was right for it to have a changed tack and moved to pursuing the matter under Rule 13, it failed in the letter of the 27 April 1999 to set out the nature of the default which amounted to want of prosecution which was being relied upon. Such a failure is contrary to the proper interpretation of Rule 13 (3) because if a party is required to show cause as to why his application should be struck out, it is elementary in natural justice that he should be given the terms and details of the case made against him to which he has to respond. Those are the two essential points which are made on behalf of the Appellant to this Tribunal today under the appeal insofar as it relates to the strike out. In response to what on the face of it appear to be powerful submissions, it is submitted to us that no error has been made by the Tribunal in changing from its pursuit under Rule 4 to Rule 13, as rule 13 is a free standing power of the court and it is appropriate where there has been, on the face of it, such conduct as can be said to be want to be prosecution for the Tribunal to use that route.
11. The Appellant replying to the Respondents submission in that respect says that the power under Rule 13 for want of prosecution is not free standing and that can be demonstrated by the fact that under the rules, the Tribunal has many other powers such as fixing dates of hearings ordering documents, discovery and matters of that kind, which indicate that the ordinary rules as to want of prosecution do not apply. We are, on that sub issue, quite satisfied that the Rule 13 Miscellaneous Powers and in particular that part of the rule with which we are dealing today, namely Rule 13 2(f) want of prosecution, is indeed a free standing power given to the court in order to be able to exercise its jurisdiction fairly and properly to all parties before it and to the court itself.
12. The matter does not however, end there because even though the matter now dealt with under Rule 4 initially, it is said that it is perfectly proper for it to be changed to a procedure under Rule 13. We for our part, are not satisfied that this is so where it was clearly stated under Rule 4, even though there is a free standing power which enables a Tribunal to take that step. It is inappropriate for it simply to change to acting under Rule 13 especially without giving the necessary notice to do so. We consider that having embarked upon the request for particulars under Rule 4, the Tribunal was in error in failing to continue that by giving appropriate notice to the party under Rule 4 (7), requiring that party to indicate why it had failed to respond to the letter requesting information.
13. In relation to the second point on strike out that has been pursued today on behalf of the Appellant, namely that the notice given in the letter of 27 April 1999 was inadequate in that it did not explain the nature of the default for want of prosecution being complained of, it is said by the Respondent that that is unnecessary because there is no such express requirement under Rule 13 (3) we accept that no express words stating that detailed particulars must be provided are set out in that rule. We are equally satisfied that the rule implicitly requires that notice of the detail of default which is being put forward have to be set out in the letter so as to enable the party to whom the letter is sent to know what it is that he has to answer. Without such information we do not regard it as a letter which gives the receiver the opportunity to show cause, as he does not know the nature of the complaint made against him. It is likely that this happened here, though we do not decide the facts. In this particular case, the Applicant or Mr Butley on his behalf in responding to the letter, did not in fact know the nature of the matter being alleged against him and to which he had to show cause. There was therefore an error by the Tribunal. Where a document is sent under the rules by the Tribunal, the consequence of which is that, the whole application is struck out, it only appropriate, even if there had been earlier correspondence which had referred to it, that in that letter stating that if no proper reply is received within 14 days, consideration will be given to striking out, full information as to the nature of the default being alleged should be stated.
14. We are satisfied that that is the proper interpretation of Rule 13 (3) because without that the party to whom the letter is being sent is not in a position to know how he can properly show cause, and is hence not given the appropriate opportunity to do so.
15. In those circumstances we are satisfied that the order of the strike out made on 14 May 1999 was made in error. For that reason and upon those grounds we are satisfied, the appeal should be allowed.
16. As to the question of review, it has in fact been conceded by the Respondent that the review could not under Rule 11 (5) have been carried out by the Chairman alone as opposed to by the full Tribunal. The rules do not permit the Chairman alone to deal with the factual dispute namely, whether the reasons put forward could prevent the decision to strike out being reached. Here, what happened was that the Chairman said that neither of the reasons put forward, that is of the letter 5 May 1999, even if they had been known to the Tribunal, would have prevented the decision being reached that the Applicant was not pursuing his complaint.
17. In those circumstances, what is said is that the power only resided in the full Tribunal rather than the Chairman himself. In view of the decision that this Tribunal has made in relation to the appeal, in relation to the strike out, it is unnecessary to consider further the consequences of the failure to review, save to state that the parties have rightly conceded, in the view of this Tribunal, that there was a failure under Rule 11 (5) in that the Chairman should not have determined the factual dispute by himself, because it could only have been dealt with by the full body.
18. In relation to the review itself, it is to be noted that the first sentence of the Extended Reasons in reason 1, states that the Applicant presented an Originating Application on 22 January 1999 complaining of race discrimination. This suggests that the Tribunal was answering the first enquiry it had made in the letter of the 13 April 1999 itself and might be said in these circumstances that it had had no need to ask. We understand in view of the ambiguity of the application itself referring only to victimisation and discrimination as to why the Tribunal should have asked for formal clarification of that matter, but it does appear that the request was truly formal as the Tribunal already had appreciated that the complaint was one of race discrimination.
19. We in the circumstances consider that the appropriate order that should be made here is that the appeal should be allowed and that the Applicant be ordered to provide the particulars requested in the letter of 13 April 1999 within 7 days. It is unnecessary for the Tribunal to deal with the other matters that had been raised, in particular the nature and extent of the power of the court under Rule 13 2 (f), to strike out for want of prosecution, save to say that on the facts of this particular case it has not been said by the Respondent, nor could it have been said, that there was any inordinate or inexcusable delay. We, for our part are satisfied that when the Tribunal acted as it did in sending the letter of 27 April 1999, it must taken to be dealing with it on the basis of a default in the sense of failing to provide proper particulars. It cannot be on the grounds of delay because plainly on the facts of this case, as I have outlined, no delay, which could be in any sense described as inordinate or inexcusable had occurred.
20. It is unnecessary for the Tribunal to deal further in view of its findings with the other submissions made to the court. As a consequence the order is that the appeal be allowed, as the strike out was made in error for the two reasons set out earlier in this judgment and that the Applicant be ordered to answer the request for information made in the letter of 13 April 1999 within 7 days.