United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I A SHEIKH (of Counsel) Instructed by: Mohammed & Co Solicitors St John's House Stoncygate Preston Lancashire PR1 3XX
For the Respondent	MR TONY HUGHES (Representative) Instructed by: First Business Support Hurstwood House, Station Court Newhallhey Road Rawtenstall Rossendale BB4 6AJ


 


MR RECORDER LANGSTAFF QC

1. This is an appeal from the decision of an Employment Tribunal at Manchester. Extended Reasons for that decision were given to the parties on 27 March 2001. It will be immediately apparent from that date that the former Rules of Procedure, that is the 1993 Tribunal Rules, applied to the powers of the Tribunal.
2. The Tribunal struck out the claim brought by the Appellant on the basis that his behaviour had been scandalous. They did so in exercise of their powers under Rule 13(2) (e) of the 1993 Rules. Those provide that a Tribunal is entitled, at any stage of the proceedings, to:

"Order to be struck out any Originating Application or Notice of Appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant…has been scandalous, frivolous or vexatious."

3. It is provided by Rule 13(3) that before making such an order a 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. This paragraph shall not be taken to require the Tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

4. What happened was this. Mr Patel had worked for some 11 years in a business which involved the sales and after-sales service of motor vehicles. After a change in ownership of the business he became employed by the Respondent as a Senior Administrator. At that time, in 1998, he shared his workload with one other employee, Katherine Gill. When she left employment on 24 December 1998 he complained that the work would be too much for him to do on his own.
5. After various other events in 1999 he was given a verbal warning. He disputed the justification for that warning and engaged in correspondence with the Respondent's management. Eventually he suffered an illness which he ascribed to the way in which his employers had treated him. He resigned from his employment and claimed in his Originating Application that he had been both constructively and unfairly dismissed.
6. He, no doubt, expected that Katherine Gill would give evidence which might support his case. He met her in passing and she expressed herself in terms which he thought were favourable to him. When, however, his solicitors asked her for a statement she did not provide one and indicated that she did not wish to become involved in the proceedings.
7. The solicitors threatened a witness order. Although the Employment Tribunal appears to have thought that that was both an unusual and an unreasonably threatening step to take we see it as little more than the normal process of litigation where there are reasonable grounds for believing that a witness has useful evidence to give but requires a witness order if they are to come to the Court or Tribunal to give it.
8. Be that as it may, the Appellant became aware that Miss Gill provided a witness statement to the Respondent which supported the Respondent's case and not his. When he saw the statement it was unsigned, although there was space for a signature.
9. He telephoned Miss Gill. The Tribunal found at paragraph 9(10) what was said in the conversation. He told her that he had seen the statement but as it was not signed he thought that it might have been submitted by the Respondent without her knowledge. She told him that it was, indeed, her statement.
10. The Appellant asked if she intended to go to the Tribunal and she said she did, whereupon, in the Tribunal's findings:

"The Appellant then raised his voice and said to her:

"I hope you realise you will be rigorously cross-examined by my solicitor"."

11. The solicitors in turn wrote to Miss Gill, enclosing a copy of the statement, asking for her confirmation that it accurately represented the evidence which she intended to give at the hearing. Although that letter asked for her to contact the solicitors to affirm that that was the case, it also indicated that if she did not contact the solicitors they would assume that to be so.
12. None of this background was raised by or on behalf of either party when the hearing before the Employment Tribunal began on 20 December 2000. The Appellant gave his evidence. At the close of his personal evidence, whilst he had yet a witness to call, Mr Hughes (who appeared for the Respondent as he does before us today) indicated that he wished to make an application to strike out the claim of the Appellant on two grounds. The first was that it was scandalous; the second was that it had no reasonable prospect of success.
13. The Tribunal indicated that they wished to defer hearing that application until the close of the Applicant's case. At the end of that case the application was made. I should add it may have been that it was at that stage, rather than the earlier stage, but it does not matter, that on application to strike out on the basis that there were no reasonable prospects of success, and that there was no case to answer, was made.
14. The Tribunal proceeded to hear the evidence, as to the communication which there had been between the Appellant and his solicitor and Miss Gill. It concluded that it:

10 "was satisfied that the purpose of the conduct [which we have described] was to influence and interfere with the witness."

15. It is continued as follows:

"The Tribunal considered that this struck at the administration of justice and was serious conduct and amounted to an abuse of the process in the circumstances. Further, the Tribunal could find no basis on which to found any allegation of impropriety on the part of the Respondent in preparing the case which was the clear implication with regard to the challenge of Miss Gill's written statement. The Tribunal would have expected a solicitor acting on behalf of his client to have put the allegations fairly before the Respondent's representative or, at the very least, to have notified them as to their client's proposed conduct on 20 October and to have sent a copy of the letter of 30 October to those representatives as well. The Tribunal was satisfied that the Respondent's representatives were deliberately excluded from these matters until they emerged subsequently.

11 The Tribunal concluded on a balance of probabilities that since this was serious misconduct that amounted to an abuse of the process in the circumstances it amounted to scandalous conduct by the Applicant and his solicitors. Accordingly, the Tribunal struck out the Originating Application pursuant to the provisions of Rule 13(2) (e) [which we have quoted]…the Tribunal accepted that it was an unusual course to deny a party the opportunity of having their case heard to conclusion before a Tribunal. However, the Tribunal regarded this conduct as so serious that it struck at the administration of justice. The Tribunal concluded that it was only appropriate to consider this having heard the Applicant's case in its entirety as to the merits before hearing the application on the strike-out process within those proceedings."

16. The result was (thus) this. The Tribunal heard the evidence called by the Appellant and his witness. It did not hear any evidence called on behalf of the Respondent, although the evidence was there to be called. There was no suggestion that that evidence was, or would be in any way, affected by the events which we have described, which they had found to be scandalous conduct. In particular, it was noted that the evidence of Miss Gill was not such as to be intimidated by the Applicant's behaviour, whatever the intention of the Applicant might have been.
17. Secondly, it appears that the Tribunal reached no express conclusion upon the application which had been made to them that there was no case to answer. There was, in short, no determination on the merits, although there was no suggestion that any of the evidence had been affected or that the progress and process of the trial had been rendered in any way unfair to either party in consequence of that which had happened previously.
18. The decision to strike out, under Rule 13 as it was, is a decision which must be reached judicially. Not only have authorities repeatedly emphasised that it is a draconian step to take but, in addition, Article 6 of the European Convention on Fundamental Human Rights has emphasised that same point.
19. In general, a party is entitled to have his or her case determined. The determination involves not just the hearing of the evidence but a reasoned decision based upon that evidence. The latter was denied to the Appellant by the actions of this Tribunal.
20. However, the decision taken by the Employment Tribunal was one in the exercise of a discretion. We cannot interfere with the exercise of a discretion unless the Employment Tribunal, when exercising it, has left out of account material which should have been taken into account or has taken into account matter which should have been left out.
21. If the discretion can be shown to have been improperly exercised in that way then we are entitled to set aside the exercise of the discretion as being an error of law. If we do so we may either remit the matter for fresh or further consideration by an Employment Tribunal or, if the case is plain enough we can ourselves exercise the discretion which would otherwise have fallen for exercise by the Tribunal below.
22. In the recent authority before this Tribunal of De Keyser Limited v Wilson [2000] IRLR 324 this Tribunal found that one of the matters, to which a Tribunal exercising such a discretion must have regard, was the question whether or not a fair trial of the issues was still possible.
23. That decision does not say that it is the only, nor that it is a conclusive criterion but it does emphasise, rightly in our view, the central importance which is to be given amongst other factors to the question of whether or not a fair trial is still possible.
24. In particular, at paragraph 24 of the judgment given by the President, there are extensive citations from the judgments delivered by the members of the Court of Appeal in the case of Arrow Nominees Inc v Blackledge [2000] 2BCLC 167. In that case it is of particular importance to note that one party had deliberately forged documents with the purpose of misleading the Court. Nonetheless, it was a case in which the discretion was exercised so as to permit the trial to continue.
25. As Millett J said in the case of Logic-Rose v Southend United Football Club Ltd [1988] The Times, 5 March 1998:

"I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct, however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice."

26. That was adopted as a general principal in the Arrow Nominees case which emphasised, again, that even if the conduct of a party amounted to contempt for or defiance of a court he should not be deprived of his right to a proper trial as a penalty for that conduct, at least where there were other means of remedying that conduct without the prospect of a fair trial being prejudiced.
27. For the Respondent, Mr Hughes strove manfully before us to argue that those principles were principles of particular application to the De Keyser case. He argued that they did not apply to a case such as the present. Essentially, the points which he made before us were, first, that the head note to the report of the judgment in De Keyser appeared to restrict the question of whether a fair trial could still be held to cases where there had been a deliberate disobedience of or failure to perform an order of the Court.
28. The conduct of the Appellant and his solicitor, in interfering, or attempting to interfere, with Miss Gill was, he submitted, tantamount to deliberate disobedience or failure to perform an order to the Court. Accordingly, one did not need to ask the question whether a fair trial was still possible.
29. Secondly, he argued that the principle in De Keyser was not so narrow as might appear upon the citation at paragraph 24 as to make the question whether a fair trial was possible a determinative question.
30. As to those submissions we find, first, that the reference to deliberate disobedience or failure to perform an order of the Court echoes the approach adopted in Birkett v James to separate cases of mere delay (which should proceed) from cases where that delay would have the result that a case should be struck out.
31. The latter would occur where there had been deliberate disobedience or contumelious default of a Court Order. That situation does not apply in the present case. There was no disobedience of any Order, nor failure to perform any Order which had been made by the Tribunal.
32. The parallel with De Keyser is that that case relies upon the Arrow Nominees decision in which there had been an attempt to 'nobble' the Court (put colloquially) by using false documents. If the principle, for which Mr Hughes contended, was right then the Arrow Nominees decision would have been reached on a very different basis.
33. As to his second ground for distinguishing De Keyser, we think that he has some justification but his argument misses the point. The criticism of the decision of the Tribunal is not that it failed to give a determinative importance to the question whether a fair trial remained possible. It is, rather, that it failed to give any importance at all; it failed even to consider the matter. It was one of those matters which should have been taken into account; it was not.
34. Of all the matters which have to be taken into account, particularly in these days where Article 6 of the ECHR applies, the prospect of a fair trial must be the most important. To ignore it was to exercise the discretion upon a basis which omitted the most important consideration of all. This inevitably means that the decision cannot stand.
35. We should add, however, for completeness, that it is not always helpful in determining whether a case should or should not be struck out to describe conduct which is reprehensible as being "so serious that it strikes at the administration of justice". That is a fine phrase.
36. It is unclear to us, however, what it means unless the consequences of the conduct, in terms of the administration of justice, are clearly identified and spelled out. In this case they were not. The phrase remains unexplored, undefined and uncertain.
37. We should add that we have very grave reservations, in any event, as to whether this Tribunal could legitimately have come to the conclusion which it expressed in the first sentence of its concluding paragraph: that the purpose of the conduct was to influence and interfere with a witness.
38. There is, inevitably, a fine line between that and, on the other hand, seeking the assistance of a witness without knowing whether the witness or will not provide it. What must be avoided is being so persistent, insistent or aggressive in tone as to suggest adverse consequences if (hostile) evidence should be given.
39. We are far from clear that on the basis of the material which is recorded by this Tribunal, we would or could have come to the same conclusion as it did. However, for the reasons that we have given we have not had to explore those issues nor come to any conclusion upon them and so we do not do so.
40. The question then remains what this Tribunal should, in exercise of its powers, do? In the De Keyser case the President addressed the question by asking whether matters were plain enough on the material before him so that this Tribunal could substitute its own exercise of the discretion.
41. There is here no suggestion that it is to any extent impossible or impracticable to hear and determine the issues caused or raised by this application on the merits. We therefore put a primacy on the fact that it appears that a fair resolution of those issues is possible.
42. Accordingly we exercise our discretion by determining the strike-out application. We do so by rejecting it. The consequence is that the claim will have to be reheard by an Employment Tribunal. We remit it to a fresh Employment Tribunal for hearing upon the merits.
43. The question of costs is raised by paragraph 12 of the Tribunal decision. We have not, as yet, invited submissions as to what, consequent upon the judgment which we have just delivered, should be the approach of this Tribunal to the result of that application and it is only right and appropriate that before giving judgment on that part of the case we should hear any further submissions that there may be from either party. We should add that we have not thought it necessary to call upon Mr Sheikh on behalf of the Appellant upon the main appeal.
44. Having heard Mr Hughes, for whose realism and responsibility we are grateful, we have concluded that the right Order to make in respect of the Costs Award is to overturn it so that the entire hearing may begin afresh. If any further circumstances arise, plainly, in which it is appropriate for either party to seek any award of costs pursuant to the current Tribunal Rules, then that is a matter which they may consider, which of course is not precluded by this part of our decision which relates only to that reached and recorded in paragraph 12 of the decision of 27 March 2001.