United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J LULE (of Counsel) Instructed By: Messrs Geoffrey Lucas Solicitors 4 Daryhulme Circle Daryhulme Manchester M41 0SS


 


JUDGE D PUGSLEY:

1. We are profoundly aware that we have one advantage which the Employment Tribunal at Manchester did not have. We have had the advantage of hearing this case advanced with clarity, care, conscientiousness and with a considerable degree of persuasiveness.
2. We have considered the judgment of the Tribunal very carefully and we have every sympathy with the Chairman and Members with the difficulties which we are sure beset them. Since then the Applicant received legal representation. It is not done on a pro bono basis; we suspect there is an element of pro bono motivation in those representing him. What the skeleton argument suggests is that the Appellant is suffering from clinical depression and, we understand from Counsel, who appears for him, that he is receiving regular therapy from a trained mental health counsellor. Put simply, what has being urged on us today is that it may be that the Appellant did not receive a copy of the correspondence informing him that there was going to be a strike out and was unprepared for that. We are pointed to Rule 13(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 which states that before any order to strike out is made 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.
3. We do not know whether or not there is such a letter. Attempts to find out today have been abortive. Skirting around the issue with great tact but sense Counsel recognises that her client's recollection, because of the difficulty we have already dealt with, may not be accurate. It may be that it may prove totally abortive but we think the Appellant should at least have the opportunity to investigate that aspect of the matter.
4. The other grounds of appeal which have been put before us now we consider are arguable, namely, from (b):

(b) The Tribunal failed to ask whether a fair trial of the issues were still possible, notwithstanding any failures to comply with directions by the Appellant, as required, De Keyser Ltd v Wilson [2001] IRLR 324 EAT.

(c) The Tribunal erred in law, when exercising their discretion in that they did not take account of relevant considerations such as, the Appellant's mental state, evidence of which was before them, his application for an extension of time to comply with directions which was refused, his application to strike out the Respondents' claim, his efforts to comply with directions, the strength of his claim together with the Respondents' failure to comply with directions.

(d) The Tribunal's decision was unreasonable in that it failed to consider other methods of ensuring compliance with directions besides strike out bearing in mind that the date for full hearing in relation to the first Respondent was not scheduled to take place until January 2001 with the second Respondent date of hearing in March 2001.

(e) The Tribunal failed to have regard to the general principle that discrimination cases should not be struck out except in the very clearest circumstances, Anyanwu v South Bank Students Union [2001] IRLR 305, HL."

5. We consider those grounds are arguable. Lurking behind those grounds is a fundamental issue of principle. Assuming, which may not be the case on full investigation, but assuming the Appellant's conduct of these proceedings was influenced to some extent by the fact that (a) English is not his first language; (b) by the fact, which may be the case, that he did not understand the procedure of the Tribunal and (c) his mental condition made him argue this matter and place material before the Tribunal in what would otherwise be considered a bizarre form. Should those conditions be ignored when considering whether the case should be struck out on the basis of either its vexatiousness or its scandalous nature, or any other area within the rules? In other words should conduct be stigmatised in that way, when it may be there is no intention to be vexatious but that is a consequence of someone's mental condition, possibly their failure of understanding and possibly linguistic difficulty?
6. We consider that there are grounds here that are arguable. We wish to make two things clear. The first is to finish where we started. We can see this case in a very different light because this Appellant has been represented in a very skilled way. Secondly, the test at this stage is whether there are arguable points of law. It is no more than that. We believe that threshold has been crossed, but we do not wish to raise any false hopes that that necessarily will be an argument that will carry the day at the full hearing. We make the normal rules as to skeleton arguments, Category C and a time estimate of half a day.
7. We ought just to say that we have allowed an amendment to the grounds of appeal. It is quite clear that Miss Lule has not sought to justify the original grounds of appeal. We say for the record that we would not stigmatise, in any shape or form, the deliberations or procedure or the method of hearing adopted by this Tribunal as being biased.
8. We say, and we say quite openly, that we have had an advantage that that Tribunal did not have. We have no reason at all to believe that they did any other than what they believed to be right in the circumstances of the case. It is a very different order to sit in this Tribunal where you are guided through with a firm but discreet way to relevant documentation. It is very different from the task that confronted this Tribunal and they must have seen this case through the shadow of a mass of verbiage.