United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JAIN SWANN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. This is an appeal by Mr Ayovuare against the order of an Employment Tribunal sitting at London Central under the chairmanship of Mr M S Rabin on 11 April 2001 refusing his application that the Respondent's Notice of Appearance be struck out and the Respondent be debarred from defending his claim of unlawful racial discrimination for non compliance with a direction given by a chairman, Mr P R K Menon on 20 February 2001.
2. The Employment Tribunal having refused to make a strike out order then went on to dismiss the substantive complaint by a decision with extended reasons promulgated on 25 April 2001.
3. The background to the strike out application was as follows. The Appellant, a quantity surveyor, is of black African racial origin. In September 2000 he answered an advertisement placed in the Building Magazine by the Respondent for a Quantity Surveyor. His application was unsuccessful. He then presented a complaint of unlawful racial discrimination to the Employment Tribunal on 7 October 2000. The claim was resisted, the Respondent entering a notice of appearance on 31 October 2000.
4. On 20 February 2001 the case came before Mr Menon for directions. That chairman ordered:

(1) that the Respondent serve particulars of their case on the Applicant within 14 Days, that is by 6 March

(2) that the Respondent should prepare an agreed bundle and send a copy to the Applicant 14 days before the hearing date

(3) that witness statements should be exchanged 7 days prior to the hearing.

5. The letter confirming those directions was apparently not sent out to the parties until 8 March and the Appellant complained that he had not received notice of the directions hearing, hence he had not attended that hearing. A representative of the Respondent did appear before Mr Menon at the directions hearing.
6. Since the Respondent was in breach of the order to give particulars the Appellant applied for an order, presumably under rule 4(7) of the then 1993 Rules of Procedure, striking our the notice of appearance and debarring the Respondent from defending the claim on the basis of their non-compliance with the order for particulars made under rule 4(1)(a).
7. On or after 28 March solicitors now acting for the Respondent attempted to deliver particulars to the Appellant by courier on 2 occasions, but he did not accept service. The solicitors then contacted the Appellant to arrange an exchange of witness statements but he took the position that since he had not received the particulars ordered he was not prepared to finalise his witness statement and provide a copy to the Respondent.
8. On 5 April the solicitors sent the documentation to the Appellant by post, the Employment Tribunal finding that presumably it arrived the next day. At the hearing held before Mr Rabin's Employment Tribunal on 11 April the Appellant renewed his strike out application. The Employment Tribunal took the view that the Respondent was in serious default of Mr Menon's order. They found it entirely unacceptable that the Respondent and their solicitors had treated the Appellant and the Employment Tribunal with disdain and delivered a severe reprimand to both of them for their defaults in complying with the Employment Tribunal's directions.
9. However, they also found that the Appellant was less than co-operative and had seized on the Respondent's default to improve his position rather than to put the case before the Employment Tribunal.
10. Weighing these factors the Employment Tribunal concluded that it would be too draconian a step to debar the Respondent from defending and dismissed the strike out application. They then proceeded to hear the case on its merits.
11. In support of this ground of appeal Miss Swann has referred us to a summary of an unreported decision of the Employment Appeal Tribunal, Charles J presiding, Olocogo -v- Hackney London Borough Council (EAT, 3 November 2000). In that case it appears that the Applicant Mr Olucogo failed to comply with an order to provide further information to the Respondent, took no steps to seek a stay of the order to provide further information, then failed to comply with other directions made by the Employment Tribunal and finally neither he nor his advisers attended the hearing fixed for the substantive disposal of his complaint. In these circumstances an Employment Tribunal struck out his claim for non compliance. On appeal the Employment Appeal Tribunal held that the strike out order, although harsh, was a justifiable one.
12. It seems to us that the circumstances of that case are far removed from the present case. Here the Employment Tribunal found that there were faults on both sides. A position which did not apply in the Olocogo case. Secondly in Olocogo there was a history of non compliance culminating in the Applicant not turning up for the hearing of his case. Thirdly, the question on appeal is not what order the Employment Appeal Tribunal would make but whether the order made below is one that falls within the wide discretion given to Employment Tribunals. In Olocogo the Employment Appeal Tribunal found that the strike out order fell within that wide discretion. In the present case we are satisfied that the Employment Tribunal's refusal to take the draconian step of striking out the notice of appearance and debarring the Respondent from defending also fell within the wide discretion granted to it.
13. That disposes of the single ground of appeal in the notice of appeal and further particulars lodged by Mr Ayovuare. However, Miss Swann on his behalf applied to us for permission to amend the notice of appeal to add a further ground not foreshadowed in the original notice of appeal or particulars which is directed to the substantive decision of the Employment Tribunal dismissing his complaint of racial discrimination. She formulates the proposed amendment in this way. The Employment Tribunal committed an error of law in its reference at paragraph 10 of the reasons and at paragraph 19 to the Appellant's grammatical errors in that the Respondent's reliance on grammatical errors in refusing to interview the Appellant was indirect race discrimination.
14. We, in considering whether or not to grant permission, raised with Miss Swann the question as to whether indirect as opposed to direct discrimination was ever argued by the Appellant below. Such a claim does not appear from the Originating Application nor does it appear from the Employment Tribunal's reasons that such a claim was considered. We are quite satisfied that a claim of indirect racial discrimination was not raised whether formally or informally before the Employment Tribunal.
15. On appeal the Court of Appeal has made clear – see, for example Mensa v East Hertfordshire NHS Trust [1998] IRLR 531 that a point not taken below will not be permitted to be taken for the first time on appeal save in exceptional circumstances. We can see no exceptional circumstances in this case.
16. The reason for that rule of practice is apparent from the circumstances of this case. Unless the Respondent to the application has an opportunity to deal with a cause of action it will not be in a position to lead the necessary evidence and present appropriate arguments. So in this case it would have been necessary for the Employment Tribunal to consider argument and evidence on both sides to determine first whether a requirement with which the Appellant could not comply was imposed on him. Secondly, if so, whether there was disproportionate impact and thirdly, if it arose, whether or not the Respondent could make out a defence of justification. None of these matters were ventilated below and in these circumstances we refuse the application for permission to amend. It follows that this appeal must be dismissed.