United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J P HORAN (of Counsel) Instructed by: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW
For the Respondents	No appearance or representation by or on behalf of the Respondents


 


THE HONOURABLE LORD JOHNSTON

1. This is an appeal which was originally taken with a considerable number of grounds in relation to the Decision of the Employment Tribunal, which was in fact initially a hearing on directions taking place in October 1999, and a subsequent review which took place at the beginning of 2001.
2. At a preliminary hearing, Judge Clark allowed the matter to go forward only on one issue, namely the competence of the striking-out by the Tribunal at the hearing for directions, confirmed at the hearing for review, in relation to the claim for racial discrimination which should not otherwise have been estopped by their initial Decision. There are no challenges taken at this stage against the Decision in relation to estoppel, but Mr Horan, appearing for the Appellant, submitted that the striking-out under Rule 93 was incompetent on the simple basis that such a rule only applied when there had been ordered at least a hearing on the merits, and that the parties were therefore on notice that a full hearing and a full disposal was likely to happen.
3. The Respondents' position before us, in writing, is that the word "hearing" means any hearing and therefore what was done by the Tribunal both at the initial Decision and subsequently at the review, was perfectly competent.
4. Suffice it to say that we do not agree with that. There has been a procedural failure inasmuch that the Rule 9(3) could not be exercised, in our opinion, save in the context, as Mr Horan put it, of a full hearing on the merits and that was not what was taking place at the hearing for directions.
5. Beyond that, we offer no view upon the merits of the matter. We are satisfied that there has been a procedural mistake which renders the two relevant Decisions, that is to say in October and the subsequent review decision a nullity. We will simply quash those two Decisions and remit the matter back to the same Tribunal to proceed as accords. The appeal is therefore allowed.