United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Mr R.K. Patney in the matter Patney against Newport County Borough Council.

1. Mr Patney has been required to pay £150 deposit under the provisions of Rule 7 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 and he appeals against that. It is necessary to give something of the background.
2. On 18 January 1999 the County Borough wrote to Mr Patney saying, in their second paragraph, this:

"As you are aware, the Council's Occupational Health Adviser recommended your retirement on ill health grounds at the end of last year and your employment with the Council was subsequently ended on 11 December, 1998. I know you have been anxiously awaiting this decision and hope that now it has finally been taken, much of the uncertainty and anxiety you have experienced in recent months has been removed."

So that was speaking of a decision on 11 December 1998.

3. On 12 February 1999 Mr Patney lodged an IT1 claiming unfair dismissal, premature termination of service and complaining of the Council's refusal to provide alternative employment. The claimed date of dismissal in box 4 of the IT1 was 11 December 1998, in other words the very same as had been alleged in the letter of the Council.
4. Mr Patney had begun service with the Council in 1974 and in July 1996 he had become an Engineering Assistant, but he fell ill with depression in July 1997 and he supplied letters from his GP and from a psychiatrist in support of retirement on ill-health grounds. He claimed, in effect, that he had been caused unnecessary stress in his job which had culminated in his premature retirement. That was the way his case seemed to be put in his IT1.
5. On 8 March 1999 the Council put in its IT3 and it made, amongst other allegations, these allegations:

"The Occupational Health Adviser and the Applicant's own Doctor and Psychiatrist all agreed that he should be retired on grounds of permanent ill-health, which was precisely what the Applicant wanted.

Accordingly, the Applicant's contract of employment was duly terminated on grounds of capability with effect from 11 December 1998 and he was paid twelve weeks' pay in lieu of notice."

And, another allegation:

"He was granted ill-health retirement at his own request and largely on the basis of his own medical evidence."

6. On 9 March 1999 the Newport Council asked that there should be a pre-hearing review. On 29 March 1999 Mr Patney wrote to the Tribunal refuting several of the Council's allegations. He said, amongst other things:

"I therefore believe there were obviously explicit and compelling reasons for me, on medical advice from my GP and the Psychiatrist, to seek early retirement on ill-health [grounds] and prevent the situation getting beyond control, in so far my as health was concerned, thereby concluding this protracted matter.

Notwithstanding the above I reiterate that the illness was caused as a direct consequence of stress and disturbing events in work due to the intimidating, harsh and uncooperative attitude of Mrs Grant and Mr Whittaker. I was a victim of prejudice, malice, ill-treatment and negligence by Mrs Grant and Mr Whittaker."

A little later he said:

"In view of this unjustified action I submit my claim for the perpetual loss of earnings till the normal retirement age of 65 years."

7. The Council's request for a pre-hearing review was granted and there was a hearing on 21 April 1999. The decision was sent to the parties on 27 April 1999 and it was this:

"The decision of the tribunal is that the applicant is ordered to pay a deposit of £150 as a condition of proceeding. He is warned that should he proceed and be unsuccessful he may be subject to an order for costs."

Under the heading "Reasons" the Chairman, Dr Rachel Davies, sitting alone, said:

"Having considered the details on the originating application (IT1), and the respondent's notice, and having heard the applicant's submissions, we are of the opinion that his case has no reasonable prospect of success."

A little later, in paragraph 3:

"In our view the probability is that the tribunal would find that he was not dismissed and that the medical retirement constituted an agreed termination."

And a little later again, in paragraph 4, after speaking about the Tribunal having no jurisdiction to hear a complaint, so far as it referred to personal injuries:

"Nor would it have jurisdiction to hear the complaint as one of constructive dismissal, in that all alleged intolerable conduct occurred many months and even years before the start of the three month period leading up to the presentation of the IT1."

So there was the decision.

8. On 14 May 1999 Mr Patney wrote a letter of complaint to the Employment Tribunal in relation to that decision.
9. On 19 May 1999 a letter was written to him that said this:

"Your letter has been referred to the Regional Chairman who has asked me to advise you that unless you pay the deposit of £150 your claim will be dismissed. You have misunderstood the nature and purpose of a pre-hearing review, and seem not to appreciate the obvious legal difficulties which you face. However you are free to proceed provided that you pay the deposit of £150."

10. On 24 May Mr Patney said that he would ask for a review of the decision.
11. On 8 June the Tribunal said that there was no power to review a decision of this character. The letter of 8 June 1999 says, inter alia:

"The tribunal has no power to review an order requiring a deposit; and in any event your letter disclosed nothing which was not already known to the panel which dealt with your case. Your originating application will now be dismissed under Rule 7(7)."

12. On 31 August 1999 Mr Patney swore a short affidavit of a page and a quarter that said that the hearing "constituted an impropriety, favouritism and bias towards the Respondent and the hearing did not comply with the statutory legislation." That is a theme which has been repeated today. It is very much Mr Patney's case, especially by reference to a booklet put forward on behalf of the Employment Tribunal, that the provisions described in the booklet have not been complied with.
13. As is the usual practice when an affidavit has been sworn the matter is put to the Chairman and the Chairman, Dr Davies, gave an answer on 24 September, denying impropriety, favouritism and bias towards the Respondent and she claims that the Tribunal was equally courteous to both sides and exercised particular care and patience when listening to Mr Patney's arguments because of his agitation and his frequent references to his psychological state. The allegation that the hearing did not comply with the statutory legislation was also denied.
14. It is necessary to remind ourselves of the relevant Rules which led to the decision. The pre-hearing review was convened under Rule 7, as we mentioned earlier, and sub-rule (1) says:

"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of -

(a) the contents of the originating application and notice of appearance;

(b) any representations in writing; and

(c) any oral argument advanced by or on behalf of a party."

And we do not see that the Tribunal strayed beyond that description.

15. In Rule 7(4), (5) (6) and (7), one finds this:

"(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.

(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.

(6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit.

(7) If a party against whom an order has been made does not pay the amount specified in the order to the Secretary either -

(a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or

(b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates."

And then there is a provision which we ought to draw to Mr Patney's attention because, I think, he has been confused in his view that the decision of the Tribunal on this Rule 7 issue somehow determined, or represented the determination of, his main case:

"(9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application.

16. It is thus carefully provided that anyone who hears the deposit application shall not go on and hear the main hearing, for obvious reasons. The requirement that a deposit be paid is in no sense a final determination on the merits. It really has a dual function. First of all, it gives a warning to the Applicant that he may be wasting his time in running a case that has no real prospect of success and may be walking towards a substantial order against him in costs. It provides a useful function that it warns that if he chooses to proceed he may be standing in to danger. Of course, if he does go on and he does not have an order made against him in costs - if, for example, his case succeeds after all - then he gets his deposit back, but it is a timely warning that he may be wasting his own time and maybe running the danger of a far more substantial award in costs against him. That is one of the functions.
17. The other function of the Rule is to protect a Respondent from having to incur expense defending a hopeless case.
18. Only two things have given us especial pause for thought in the case of Mr Patney's application before us. It will be remembered that Rule 7(5) said that "No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit". There is nothing in Dr Davies's decision that deals with that point at all.
19. However, it does transpire that Mr Patney was questioned at some length on a number of issues and we have put questions to him this morning which have established to our satisfaction that the topics of whether he was able to pay, what his means were, what his outgoings and his commitments were did arise at the hearing. It would have been prudent for Dr Davies to have dealt with the subject expressly but, as it seems to us, the absence of an express reference to the subject does not nullify the decision so long as the subject was indeed explored and taken into account. We have no reason to believe that the answers to the questions on the subject were not taken into account and to that extent we find no error of law in the sense that sub-rule (5) was ignored. We cannot hold that it was.
20. The second matter that gave us some concern was the letter that said there was no power to review a decision as to the payment of a deposit. The power to review is conferred by Rule 11, which begins "Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that" - and then it provides the various grounds. There is a time limit under Rule 11(4), but there is power to extend that time under Rule 15.
21. There may be a technical argument (none has come from Mr Patney and it does not appear from Dr Davies's decision) that for some reason a deposit ruling is not a "decision" within the meaning of Rule 11. There is a similar argument in some parts of the Rules, but, looking simply at the ordinary meaning of the words "to review any decision", it seems to us that a decision as to a deposit is capable of review.
22. However, the letter that we spoke of went on to say "In any event your letter disclosed nothing which was not already known to the panel which dealt with your case". It is quite plain from that, that, even if there had been power to review, the decision would have been that there should be no review. It is hard to see that Mr Patney has suffered any particular extra prejudice by reason of the decision that the ruling under Rule 7 was incapable of review as the Chairman would plainly have declined a review even if she had believed she was enabled to review the particular "decision" in question.
23. We have several times invited Mr Patney to identify an error of law in the decision of the Tribunal with which we are concerned and time and again he has strayed from that question into concern about the overall merits of his case. It is difficult – indeed, so far, we have found it impossible - to find an error of law in the matter and, of course, it is only errors of law with which we are concerned. As for the allegations of bias, misconduct and so on, the EAT has a Practice Direction which deals with this subject and that is in paragraph 9 of the Employment Appeal Tribunal Practice Direction 1996 and it says this:

"9

(1) A party who intends to complain about the conduct of the Employment Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint.

(2) In any such case the Registrar may inquire of the party making the complaint whether it is intended to proceed with it. If so, the Registrar will give appropriate directions for the hearing.

(3) Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on.

(4) When the direction has been complied with the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he has and, if appropriate, the lay members of the Employment Tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties.

(5) A copy of any affidavit or of directions for further particulars will be supplied to the other side.

(6) The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

We have not got every letter in the matter but Mr Patney has sworn his affidavit to which we made reference earlier. It is his only affidavit; it specifies no particulars of bias, prejudice or other improper conduct.

24. The whole point of the affidavit of such a kind as the Practice Direction requires is so that it can be given to the Chairman who can then deal with the particular complaints that are raised. Alleging in general terms bias or misconduct does not assist. It will be remembered that we quoted earlier that the affidavit said "The above hearing constituted an impropriety, favouritism and bias", but that is so general an allegation that it cannot usefully be responded to other than simply by way of a denial, which is what it got.
25. Given that there was no adequate specification of bias, prejudice or other improper conduct, we are unable to attach any weight to unparticularised claims of that kind and accordingly, having now, we think, dealt with every possibility of error of law in the Chairman's decision and having found none, we must dismiss Mr Patney's claim even at this preliminary stage.