United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M D ADAMS (The Appellant in Person)
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for Full Hearing pursuant to the earlier order made by a different division of this Appeal Tribunal on the Preliminary Hearing on this appeal on
   9 October 2000, Mr M D Adams seeks to have set aside, as erroneous in law, the decision of an Employment Tribunal Chairman, set out in a decision and extended reasons dated 11 May 1999 and sent to the parties on that date appearing at page 14 of the appeal file before us. That decision was that pursuant to the power vested in the Chairman by the Employment Tribunal Rules of Procedure an originating application brought by Mr Adams against the Respondents, the Leicestershire Youth Training Trust, should be struck out for failure to comply with a direction that had previously been given by the Tribunal on 8 April 1999 that he should pay a deposit in the sum of £100 as a condition of being allowed to pursue his originating application proceedings in front of the Tribunal.
2. It is common ground that Mr Adams had not, in fact, lodged a £100 deposit as directed within the period of 21 days and for that reason his originating application was struck out in the order which is under appeal to us. One of the reasons that Mr Adams had not complied with the direction as to lodging of the deposit was that, in the meantime, he had brought an earlier appeal to this Appeal Tribunal against the direction that he should have to pay the deposit at all. That earlier appeal came before a different division of this Appeal Tribunal on 26 April 1999 under EAT/530/99 when a direction had been given extending the time for Mr Adams to make his deposit until after the determination of the appeal to decide whether he should have to make it at all.
3. That appeal was then eventually heard and determined by the Employment Appeal Tribunal on 10 May 1999 and was dismissed. In the order bearing that date but issued to the parties on 11 May 1999, the order of the EAT with Mr Justice Morison presiding, was that the appeal against the requirement to pay the £100 deposit should be dismissed in accordance with the Judgment of the Appeal Tribunal. The Judgment of the final approved transcript of the Judgment given by Mr Morison at the hearing on 10 May 1999 was not finally promulgated by the Appeal Tribunal until 26 May 1999. It gave careful and comprehensive reasons for not allowing Mr Adams' appeal against the decision of the Employment Tribunal requiring him to pay the £100 deposit.
4. However, because of, apparently, some confusion in the dates on the part of the Employment Tribunal, by the time Mr Adams received that final Judgment of the EAT on his appeal, his proceedings had already been struck out by the Employment Tribunal Chairman in the decision to which we first referred. As is apparent from the Judgment given on the Preliminary Hearing of this appeal on 9 October 2000, that raised clearly arguable points of law as to whether the Employment Tribunal's decision, striking out the proceedings, should be allowed to stand. This Tribunal has received a letter from the Respondent's solicitors dated 20 November 2000 in which they, very rightly and properly, concede that this appeal against the striking out order must be allowed and record that they are instructed that the Respondent does not propose to oppose the Appellant's appeal which is now before us.
5. We have been satisfied that it would not be just for Mr Adams' originating application to remain struck out so that he is no longer able to proceed with it in the circumstances we have outlined. We accordingly allow his appeal and propose to substitute our own short further extension of time to enable him to lodge his deposit as he has previously been directed so that he can then pursue his claim and seek to establish his case against the Respondents on the merits if he so wishes.
6. Mr Adams contended before us that it would be wrong for him, in the circumstances that now appear before us, to be required to make any deposit at all as a condition of pursuing his claim, and he submitted that we should lift that requirement altogether. That is not a point that it is open to him to argue before us, because the basic requirement of his making a deposit of only £100 as a condition of being allowed to pursue his claim has already been considered and determined against him by the Employment Appeal Tribunal in the Judgment of Mr Justice Morison to which we have already referred, now some two years ago.
7. His second submission was that in any case his ability to bring his proceedings had been prejudiced by some two years of delay during that time, which he contended was not his fault, although it does appear to us to have all stemmed from his failure to comply with the Employment Tribunal's original requirement to lodge the £100 in order to safeguard his position. He further took the point, as he told us, that the Respondent had now ceased to carry on business and he felt also that that was a factor which made the course of events prejudicial to his case. Again, those do not appear to us to be matters that we can deal with or take into account on this appeal which is simply on the issue of whether the striking out order against him should stand or not.
8. For the reasons we have already given we have been satisfied that there should be an order made in his favour on that question and that the existing striking order should be altered. The course we intend to take is that we shall allow this appeal to this extent, that we shall substitute our own order giving a final extension of time for him to lodge his deposit, which we will direct should be 7 days from today, that is that he must lodge his deposit of £100 at the Employment Tribunal not later than Monday 18 June 2001 (that is 7 days from today). If he does that, his complaint may proceed before the Employment Tribunal in the normal way. If he does not do that, then we direct that the existing order for striking out of his originating application should stand and should be confirmed so that he has the choice, whether to make his deposit of £100 within the next 7 days in order to be able to pursue his originating application or not. To that extent, this appeal, we unanimously allow.