United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E GRANT Representative Northern Complaint Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH
For the Respondents	MR M RUDD (of Counsel) Instructed by: Messrs Russell & Co Solicitors 32 The Boulevard Crawley West Sussex RH10 1XP


 


JUDGE PETER CLARK

1. This is an appeal by Miss Richards, the Applicant before the Brighton Employment Tribunal against a Decision of a Chairman, Mr M J Davey, sitting alone, promulgated with Extended Reasons on 28 May 2001, striking out her complaints brought against the Respondents, the Sussex Racial Equality Council and three others, members of the Council's Committee.

Background

2. The Applicant was employed by the First Respondent as a Racial Equality Officer. On 8 May 2000 she presented her first complaint of race and sex discrimination and victimisation. On 10 August 2000, she presented a second similar complaint. Both complaints were resisted and combined to be heard together.
3. On 1 December 2000 a Chairman, Mr P Kolanko directed both parties to disclose all relevant documents by way of lists by 15 January 2001. The matter was set down for substantive hearing between 12 - 14 March 2001.
4. On 12 March Mr Davey considered an application by the Respondents to have the complaints struck out for want of prosecution and failure to comply with Mr Kolanko's Order. Although the Applicant had done nothing to advance the case and was in breach of the earlier disclosure Order, her representative, Mr Grant, produced sick notes showing that she had been suffering from stress from 19 February 2000 to date.
5. Mr Davey did not then strike out the complaints, but instead made Unless Orders, requiring the Applicant to serve Further and Better Particulars of her complaints and a list of documents by 2 April 2001, failing which, as he made clear to the Applicant who was present on that occasion, the complaints would be dismissed.
6. The substantive hearing was then relisted for 8 - 11 May. On 3 April, the Respondents issued an application to strike out the complaint for failure to comply with the Unless Order. That application was heard by Mr Davey on 27 April.
7. A factual issue arose as to whether the Applicant had in fact complied with the Unless Order. The Chairman found that she had not. The Further and Better Particulars and list of documents arrived at the Respondents' solicitors officers by post on 3 April, one day out of time.
8. Having considered the parties' contentions Mr Davey made the Strike Out Order, now under appeal.

The Appeal

9. We should first remind ourselves of our powers on appeal. We have jurisdiction to interfere with an Employment Tribunal decision where an error of law is made out. That is true of Orders such as the present. It is not enough simply that it may appear to us harsh to strike out the Applicant's complaints without a hearing on the merits because she was one day late in complying with an Unless Order, see Medallion Holidays -v- Birch [1985] IRLR 406.
10. In Adams & Raynor -v- West Sussex County Council [1990] IRLR 215 Wood J identified three issues arising for consideration in interlocutory appeals.

(1) Was the Order made within the powers given to the Employment Tribunal?

(2) Was the Tribunal's discretion exercised within guiding legal principles?

(3) Was the Tribunal's conclusion one which could properly be attacked under Wednesbury principles?

11. We turn then to the way in which the appeal is put by Mr Grant on behalf of the Applicant. His primary submission is that the Tribunal Chairman, although expressly referred to the judgment of Wood J in National Grid Co PLC -v- Virdee [1992] IRLR 555, failed to answer the critical question, was a fair trial between the parties possible? Unless that question can be answered in the negative a Strike Out Order is inappropriate, submits Mr Grant, relying in particular on paragraph 26 of the former President's judgment in Virdee.
12. Mr Grant relies upon the Chairman's express finding at paragraph 22 of his Reasons that the one day delay in complying with the Unless Order would have made no material difference to the preparation of the case. Thus, submits Mr Grant, a fair trial could have taken place on 8 - 11 May 2001, the dates fixed for the hearing by Mr Davey on 12 March.
13. Mr Rudd does not accept that the Chairman failed to apply the principles in Virdee. At paragraph 8 the point as to fairness between the parties is expressly referred to by the Chairman. The Chairman took into account the background, notably that the March date had to be vacated due to the Applicant's failure to comply with the earlier directions. Although the one day delay made no material difference to the Respondents' preparation, as the Chairman pointed out, the strike out application made by the Respondents on 3 April, after the Applicant failed to comply with the Unless Order, led to delay in exchanging witness statements and might in turn lead to an adjournment of the May hearing. It was unreasonable that the Respondents, having prepared themselves for the March hearing should now suffer further delay and prejudice. In particular, at paragraph 24 of his Reasons, the Chairman took into account the fact that the individual Respondents, committee members of the Council, were personally financially at risk, the Chairman having been told that there was a possibility that funding for the Council might be withdrawn. All of these are factors, submits Mr Rudd, which the Chairman was entitled to take into account and properly took into account in the exercise of his discretion, bearing in mind the guidance in Virdee.
14. Did the Chairman follow the guiding legal principles in Virdee? It should be borne in mind that that Virdee involved a Strike-Out Order after the Respondent failed to provide full disclosure despite an Order having earlier been made. That was not, however, an Unless Order.
15. As the Court of Appeal made clear in Samuels -v- Linzi Dresses Ltd [1981] QB 115, dealing specifically with Unless Orders, although the Court has power to extend time it will not do so automatically; the power to extend time should be exercised cautiously. Orders as to time are made not to be ignored but complied with.
16. However we return to the question of the possibility of a fair trial between the parties. That principle is not confined to the case of Virdee. It has since been invoked by Morison J in DPP -v- Marshall [1998] ICR 518, 528B in the context of whether it is just and equitable to extend time for bringing a complaint of sex discrimination under section 76(5) of the Sex Discrimination Act 1975 and by Lindsay J in De Keyser Ltd -v- Wilson [2001] IRLR 324. There, the EAT held that an order striking out the Respondent's Notice of Appearance on the grounds that their conduct of the proceedings had been scandalous in that a letter of instruction to a medical expert asked to examine the applicant contained irrelevant and abusive material was inappropriate, particularly where the Tribunal had failed to ask themselves whether a fair trial was still possible.
17. In De Keyser, as in Virdee, a reference was made to the judgment of Millett J in Logicrose -v- Southend United Football Club Ltd [1988] The Times 5 March 1988, subsequently approved by the Court of Appeal in Landauer Ltd -v- Commins & Co (a firm) The Times 7 August 1991 and Arrow Nominees Inc -v- Blackledge [2000] 2BCLC 167. In Logicrose, Millett J observed that it would not 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 the conduct would render the further conduct of proceedings unsatisfactory.
18. In De Keyser Lindsay J stressed that there was, in that case, no disobedience or failure to perform an Order of the Court. Does it make a material difference that in the present case the Applicant was in breach of an Unless Order?
19. As we have indicated, Mr Grant initially took the position that it could never be appropriate to strike out an application unless it could be said that no fair trial could take place. However, he allowed of the less extreme position, later adopted by Mr Rudd, that the question of a fair trial was a relevant, albeit not a determinative factor for the Tribunal to taken into account when considering a strike-out application where an Unless Order had been breached. In our judgment that is the correct principle to be applied in this case.
20. Reverting now to the present appeal our conclusions are as follows. First, that the Chairman did take into account the question as to whether a fair trial would be possible. Although a fair trial would have been possible on 8 - 11 May a sequence of events had been put in train by the Applicant's failure to comply with the Unless Order. An application had been made to strike out the claims; the Respondents had understood from the Tribunal that such an Order had in fact been made. As a result their preparations for trial had stalled, although the Applicant's had not. There was thus a risk that the May date would be lost; if so, that would or might prejudice the Respondents, particularly if funding for the Council was withdrawn. In that sense there was a risk that the Respondents would be prejudiced and would not have a fair trial.
21. It therefore seems to us that the Chairman took into account all relevant factors and did not take into account any irrelevant factor. He followed guiding legal principles. He had power under the Rules to make the Order that he did. Looked at as a whole can the Chairman's Decision be regarded as perverse, as Mr Grant submits in the alternative, that is to say, is it a conclusion which no reasonable Chairman, properly directing himself as to the law, could reach? We are not persuaded that this high hurdle has been crossed in this case. It was, as Mr Rudd accepts, a harsh decision to strike-out the applications in this case; however, the question for us on appeal is whether it was a permissible option open to the Chairman, see Medallion Holidays -v- Birch.
22. Given the history of this case we have concluded that it was; accordingly, this appeal must be dismissed.