United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROY FIELDING (HUSBAND)
For the Respondent	MR NICHOLAS TOMS (Of Counsel) Instructed by Southwark Legal (Contract) Services South House 30-32 Peckham Road London SE5 8UB


 


MR JUSTICE WALL

1. This appeal arises out of proceedings brought by Mrs Fielding, (the Appellant) against her employers Southwark Council Housing Department. (The Respondent) for sexual discrimination and victimisation in the course of her employment as a housing officer. In summary, the first point which we have to decide is whether or not the Employment Tribunal hearing this case on 10 April 2000 erred in law in refusing to strike out the Respondent's Notice of Appearance (thereby effectively debarring the Respondent from defending the case) on the ground that the Respondent was in breach or an interlocutory order made on 21 January 2000 that "no later than 10 days prior to the hearing the Respondent shall supply to the (Appellant) one copy of the consolidated bundle of documents" and other interlocutory orders. In the alternative, we have to decide (if the Notice of Appearance is not to be struck out) whether the Appellant's allegation of late delivery of the bundle by the Respondent should have led the Tribunal to order an adjournment.
2. The relevant order of the chairman at the interlocutory hearing appears at pages 66 and 67 of our bundle of documents. The purpose of the interlocutory hearing was as set out to ensure "an expeditious and fair hearing of the issues" and amongst the orders made were paragraph 3; on or before 6 March 2000; each party shall prepare and exchange lists of all documents which are or have been in their respective possession or power relating to the matters in issue in these proceedings and, paragraph 5; the parties shall liaise to prepare a bundle of documents.
3. Under paragraph 5 of the order the Respondent was to prepare a consolidated bundle of copy documents with copies for the Tribunal hearing. For this purpose no later than 20 days prior to the hearing date the Appellant was to supply to the Respondent 6 clean legible copies of all documents which the Applicant intended to introduce as evidence or otherwise rely upon at the Tribunal hearing together with 1 list of such documents. The Respondent was then to prepare a consolidated bundle of copy documents containing copies of all documents to be used by both parties at the hearing. The bundle had to contain a list of contents of all copy documents (avoiding duplication of any document) with each page numbered. No later than 10 days prior to the hearing the Respondent had to supply to the Applicant 1 copy of the consolidated bundle. The Respondent had to bring 5 five further identified copies of the bundles supplied to the Tribunal hearing. The bundles had be so bound or otherwise held together as to open flat.
4. The Appellant's ET1 is dated 27 August 1999 and was heard by an Employment Tribunal held at London South on 10, 11 and 12 April 2000. It was proceeded by the directions hearing to which I have already referred. What happened on 10 to 12 April is summarised by Mr Recorder Burke QC who presided over the division of the Employment Appeal Tribunal which dealt with the preliminary hearing of this appeal.
5. I start at paragraph 2:

"The Appellant's complaints came before the Employment Tribunal on 10 to 12 April 2000. On the first of those three days the Tribunal dealt with the Respondents' contentions that the complaints were out of time in large measure, having occurred more than three months before the presentation of the proceedings."

Paragraph 3:

"Only one of the specific allegations of discrimination was accepted by the Respondents as falling within the ordinary three-month time limit for sex discrimination claim. Mr Fielding, who represented his wife before the Tribunal and who has represented her before us with conspicuous ability as the Tribunal found argued that the whole history should be looked at."

Paragraph 4:

"The Tribunal in Extended Reasons held that there were three incidents or matters which were either in time or in respect of which it was just and equitable to allow time to be extended. Those three matters are set out in paragraph 9 of the First Tribunal Decision, which Decision sets out its determination of the issues before it on 10 April. We need not recite these at this stage."

Slightly later on the Recorder continues

Paragraph 5:

"The Tribunal went on to rule that day that evidence from Mrs Fielding had previously complained of unlawful discrimination was admissible as part of the background, but that details of her complaints, which were not within time, were unnecessary and should not be admitted."

Paragraph 6:

"The Tribunal then moved on to consider Mr Fielding's application that the Respondents' Notice of Appearance should be struck out on the grounds that the Respondents had acted frivolously or scandalously by failing to deliver a properly numbered bundle in time before the hearing, as previously directed. When we say "a properly numbered bundle" what we are referring to is perhaps, not so much the provision of a bundle as the provision by way of exchange of a list of documents which the Respondents had been ordered to provide by 6 March 2000 at the interlocutory hearing which took place in January 2000."

Paragraph 7:

"The Employment Tribunal declined to make such an order and also declined to allow an adjournment to Mr Fielding. It was critical of the Respondents but decided that Mr Fielding had the majority of the documents and that the case should, if possible, proceed on the merits and that it could do so without an adjournment. That decision was, by some bizarre error on the part of the Employment Tribunal, not entered into the register and promulgated until 19 June 2000. Mr Fielding's appeal against that decision is in fact dated 25 May; we do not know whether there is any resulting procedural defect; but if there is, it is not one which cannot be rectified or which should prevent us from considering on their merits the arguments that he puts forward as to whether or not there are arguable grounds of appeal against the Tribunal's decisions."

Paragraph 8:

"The Tribunal, having made the decisions that it did on 10 April, then went on the following two days, the Tuesday and Wednesday of the week (so far as the Wednesday is concerned only part of that day was taken up) to hear in substance the three remaining complaints. It decided that those complaints should be dismissed."

Slightly later on and (We shall come back to the hearing before the Tribunal in more detail later). Mr Recorder Burke said this in paragraph 12:

"The first ground to which we should refer is the ground which seeks to criticise the Tribunal's rejection of Mr Fielding's application that the Respondents' Notice of Appearance should be struck out. Mr Fielding tells us that he is not sure whether in express terms, as an alternative to a striking out order, he asked for an adjournment; but it is quite clear to us that the Tribunal considered an adjournment as an alternative because Mr Fielding asserts (and at least at this provisional stage it appears to us likely to be right) that he was complaining to the Tribunal that, as a result of the Respondents' conduct in relation to the documentation which I shall describe in a moment, he and his wife were prejudiced in their handling of the case and were not ready to proceed on the next day, the Tuesday of the relevant week."

Paragraph 13:

"We have already recited the nature of the interlocutory order in relation to documents. What at this provisional stage appears to have taken place thereafter is this. Mr Fielding or his wife (it does not matter which) complied with the order, so far as they were concerned, by sending either a list of the relevant documents that they had or copies of those documents or both in good time but the Respondents, for their part, failed to do so."

Paragraph 14:

"On 20 March Mr Fielding, because of this non-compliance, sent a letter to the Tribunal setting out what had happened and asking the Tribunal to take action; and there was communication from either Mr Fielding or the Tribunal or both with the Respondents."

Paragraph 15:

"On 31 March the Respondents sent out two letters, one to Mr Fielding asking for copies of documents which, according to him, had already been sent to them and one to the Tribunal; but they still did not produce, for their part, their list of documents or a bundle of their documents."

Paragraph 16:

"On 3 April Mr Fielding says that he sent out another list to the Respondents. On 7 April, that is to say the Friday before the hearing was due to start on the 10^th, the Monday, Mr Fielding faxed a letter to the Respondents complaining of their failure to abide by the Chairman's order in relation to documents and advising them that he had applied to the Tribunal to debar the employers from defending. He wrote to the Chairman of the Tribunal on the same day, whether by fax or not at this stage is not clear, setting out what had happened, namely that at 9:10 pm on the Friday evening he had received a bundle of documents. He said that he does not work at weekends and has family commitments and had not been given a reasonable amount of time to read the bundle. He pointed out that Mrs Fielding had complied with the order and the Respondents had not and that Mrs Fielding had thereby been disadvantaged and asked that the Respondents be debarred from defending."

Paragraph 17:

"At the outset of the hearing on 10 April, according to Mr Fielding, (and we make clear, of course, that at this stage we can only express provisional views and have only heard one side of this matter) the Tribunal suggested that Mr and Mrs Fielding should go into a room, look at the bundle which had been produced by the employers and work out what documents were there that they had not seen before. At page 8 of our bundle is a manuscript piece of paper which Mr Fielding tells us is a list which he and/or his wife compiled while undertaking that exercise. That list purports to demonstrate that a smallish number of documents which had been sent by Mrs Fielding or Mr Fielding to the employers had not found their way into the trial bundle and that a large number of additional documents which had not been seen before by Mr and Mrs Fielding had been added to it by the Respondents. If this document at page 8 is right, then it would appear that well over 100 pages out of a total of 246 pages had been added."

Paragraph 18:

"Mr Fielding tells us that he returned to the Tribunal, pointed out that this was the case and continued with his application that the Respondents should be struck out and with his argument that Mrs Fielding was seriously prejudiced by this very late disclosure of documents from the bundle. We are not going to say anything separately about the documents that were taken out of the bundle because they were few. No doubt Mr and Mrs Fielding were familiar with them and they could easily have been added back in."

Paragraph 19:

"It is clear that the Tribunal then decided that it would not strike out the Notice of Appearance and would not grant an adjournment."

Paragraph 20:

"Normally, an Appellant who comes to the Employment Appeal Tribunal complaining that the Employment Tribunal have failed to strike-out or to grant an adjournment in circumstances such as these, has a heavy duty to discharge in showing that there has been any error of law on the part of the Tribunal who, of course, have a very broad discretion in such matters. However, unusually in this case, having heard the history and having seen that the history given to us by Mr Fielding appears to be supported by the contemporary documentation in the way which we have described, we have come to the conclusion that there is an arguable ground of appeal here and that Mr and Mrs Fielding should arguably, in the circumstances, not have been required to go ahead with the hearing on the following day, the Tuesday, when they had for the first time on the Friday night seen over 100 documents, some at least of which were relevant, so Mr Fielding tells us, to the complaints which were still in issue after the Tribunal had decided which complaints were out of time and which complaints were going to be allowed to proceed."

6. Mr Burke goes on to deal with a point which is accepted by Mr Toms who today appears on behalf of the Respondent and to which I will refer in a moment. The Tribunal, having said that the appeal was arguable in relation to the adjournment point, then directed that it should go through to be argued on that point.
7. Whilst dealing with the judgment by Mr Recorder Burke it is I think important to notice that the Employment Appeal Tribunal at the preliminary hearing went on to consider the exercise by the Tribunal of its discretion to limit the issues which it should consider by reference to past history, admissibility and relevance. The Tribunal then decided, having done that and before they embarked on the merits hearing, that the Appellant should be permitted to consider bringing before the Tribunal three particular areas of complaint which they identified.
8. Those were considered by the Employment Appeal Tribunal at the preliminary hearing and the Tribunal decided as a matter of law that there no arguable point in relation to those three issues. We have had some debate this morning as to whether or not if we allow this appeal in relation to the documentation it must necessarily follow that we must allow it in relation to the merits hearing and thereby let in all the allegations which the Appellant wished to make. However, we are of the view that if we allow this appeal there remains no arguable ground of law to interfere with the exercise of the Tribunal's discretion in identifying issues which it should hear.
9. As was pointed out to us by Mr Toms this morning those relate either to issues which are out of time for complaint or which have already been adjudicated upon. Unlike Mr Recorder Burke and his colleagues we see no basis upon which to reopen the whole case as opposed to the case of the three issues.
10. I say that at this stage because it will mean that we need not go back further to look at the reasoning of Mr Recorder Burke and his colleagues on this point which we accept. I return therefore to the issue which we have to resolve. The relevant passage in the reasons of the Chair is page 21 of our bundle and it reads as follows:

"At the commencement of these proceedings, Mr Fielding on behalf of the Applicant made an application that the Notice of Appearance be struck out on the grounds that the Respondents by failing to deliver to him a properly numbered bundle ten days before the hearing had acted frivolously or scandalously and therefore their Notice of Appearance should be struck out under Rule 13 of Schedule 1 of the Employment Tribunals Rules 1993. We have refused that. Quite apart from the fact we could not grant it without giving the Respondents time under Rule 13(3) to show cause why it should not be done, we have come to the conclusion on looking at the papers that very largely Mr Fielding had had the majority of the papers anyway. What he did not have was a numbered bundle. The Council cannot escape criticism. They have told us that because of the wide ranging in nature of the allegations they had to go back a long way to trace things but that could have been put to the Chairman who made the original order. But we have so far as we can try cases on the basis of merits of the case not dismiss them on procedural points. If it were necessary we would have adjourned and the Respondents would have had to pay the costs of any such adjournment. But that we find is not necessary. Therefore although not excusing the Council from criticism on this matter we do not strike out the Notice of Appearance."

11. The point to which we referred a moment ago which is now accepted on behalf of the Respondent is that the reference to the necessity of allowing the Respondents to show cause is inappropriate. The Respondents were present at the Tribunal with their lawyers, and had the point arisen or had the Tribunal entertained it, it would have been in our judgment perfectly proper to have invited an oral submission from Mr Toms or from the Respondent. Therefore the reference to giving an opportunity to show cause by adjournment is certainly inappropriate.
12. Like the Employment Appeal Tribunal presided over by Mr Burke therefore we are unimpressed with the argument about showing cause. However, it is not material. Mr Fielding repeated before us the argument which he put before the Tribunal that the final trial bundle had numerous additional and missing papers. He also took us through the chronology which I have touched on when citing from the reasons given by Mr Recorder Burke.
13. Mr. Fielding says and it is supported by the documentation that on 3 March he sent the substantial bundle of documents to the Respondents with a list to the Tribunal. He says that he had no reply. That caused him to write to the Tribunal on 20 March complaining about the Respondents' responsibility to produce the documentation and it was only on 31 March, quite a short period before the hearing that a letter emerged from the Respondents enclosing a draft trial bundle and enquiring about other documentation which the Respondents said they needed.
14. The case for the Respondents remains that there was a very limited amount of fresh material in the bundle. However, we are quite unable to resolve any discrepancy that and between what we were told by Mr Fielding namely that there were some other 143 pages which certainly had not come from him and many of which if not all of which he says he had not seen. The Respondents say that there were 8 or 9 documents, including the grievance procedure.
15. In one sense in our judgment the resolution of that particular issue, the number of pages/documents, is not critical to the outcome of the case because we must remember that although Mr Fielding is an experienced trade union official his wife is nonetheless a litigant in person and neither is a lawyer. Had this argument been taking place between lawyers Mr Toms agreed that we would probably not be here. But in our judgment if a litigant in person is faced on the first morning of a hearing with a substantial bundle of documents for the first time - even if a number of documents are familiar to him - he is at a disadvantage. The order in this case was plainly designed to ensure that the documentation should be prepared well in advance so that everybody would have had the opportunity to study and absorb it. Mr Fielding tells us that this did not happen: on the first morning of the hearing he felt at a substantial disadvantage at being presented with a bundle which he says was very largely unfamiliar to him.
16. We are left irrespective of the precise nature of the number of documents involved with a profound sense of unease that the Appellant was indeed placed at a disadvantage by the Tribunal and that the Tribunal was wrong not to grant her an adjournment to deal with the issues - in particular, the new documents. The Appellant is a litigant in person not a lawyer and although Mr Toms tells us the Tribunal dealing with the matter did itself go through the documents in order to decide what was relevant or not, we are nonetheless left with a profound sense of unease about what happened below and with a sense that justice has not been seen to be done particularly given the gross and very serious breach of the discovery order by the Respondents.
17. We do of course recognise (as Mr Toms argues in his skeleton argument with the authority of Adams Rayner -v- West Sussex County Council) that the test of interfering with the exercise of a Tribunal's discretion in this sort of case is a very high one. It goes as high as Wednesbury unreasonable. But in our judgment, looking at the matter as we do, we do think that there is here a distinct aura of unfairness towards Mr and Mrs Fielding and a feeling that with the dismissal of the Appellant's claim by the Tribunal that justice has been seen to be done. In these circumstances although the test is a high one we think we should set aside the Tribunal's orders and direct that the three issues which the Tribunal identified as appropriate for hearing should be heard by a fresh and differently constituted Tribunal.
18. We do not think there is any illogicality in setting aside the Tribunal's refusal to grant an adjournment (with the consequences which flow from it) whilst accepting their analysis of the factors which led them to decide there were three issues only which could go to a hearing.
19. As Mr Recorder Burke indicated, we agree as a matter of law we that there is no reasonable basis from which we can say that the other points can be argued or that the three points identified as arguable were wrongly so identified by the Tribunal. In those circumstances we do not propose to disturb that part of the Tribunal's findings but inevitably the merits decision which they made must be set aside and as we indicated a moment ago the matter will return to a differently constituted Tribunal in order to deal with the three issues which the Tribunal identified as arguable to on their merits.