United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr W Kane, Representative 29 Douglas Gardens Uddingston GLASGOW G71 7HB
For the Respondents	Mr D Sandison, Solicitor Of- Messrs Lawford Kidd Solicitors 12 Hill Street EDINBURGH EH2 3LB


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against a determination by the Employment Tribunal (Chairman sitting alone), in each of two applications currently pending before the Tribunal to order a deposit of £500 payable by the employee as a condition of being permitted to continue to take part in these proceedings. These orders proceed under Rule 7(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and are based upon the determination by the Chairman in each case that the claims made, respectively in terms of the Disability Discrimination Act 1995 and the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) against the respondents, have no reasonable prospects of success. The Chairman gives his reasons respectively in a decision dated 14 May 2002 and a subsequent decision dated 12 June 2002, both of which were emanated from a single hearing on 25 February 2002. There appears to have been some discussion as to whether or not the applications should be conjoined but no conjunction has in fact taken place in terms of the Rules and therefore they remain separate applications which require to be dealt with separately as the Chairman has done.
2. The case has a long and complicated history accompanied by voluminous documents emanating from Mr Kane, who is a lay adviser, representing the appellant.
3. In February 2000 it appears the appellant herself first submitted an application to the Tribunal alleging discrimination under the Disability Discrimination Act 1995 against the respondent. Subsequent sundry procedures involved various requests by the respondents for a preliminary hearing review which were interspersed with numerous attempts to amend the original application made by Mr Kane on behalf of Mrs MacDonald.
4. On 4 May 2001 a Hearing for Directions took place as a result of which the Chairman issued a Note restricting the alleged claim in respect of discrimination into three specific items. However, as Mr Sandison pointed out to us, representing the respondents, the issue of disability was never yet connected to the complaints being made by Mrs MacDonald against the Union. He therefore sought a preliminary hearing review which eventually took place on 25 February 2000 as we have indicated.
5. In the meantime, on 1 August 2001, a further application, which formed the second application before us, was made by the appellant, this time alleging victimisation by the union under TULRCA. This was also, as we have indicated, sent to preliminary hearing review to be heard the same day as the first case.
6. In his decision, the Chairman, as far as the discrimination case was concerned, held that there was no substance or reasonable prospects of success in any claim based on disability, the real complaint being apparently the refusal of the union to provide adequate legal assistance, at least to the mind of the appellant. He therefore made the order in question.
7. As regards the second application, he maintained it added nothing to the first and, in any event, was an attempt to circumvent a previous decision whereby the appellant sought to involve individual members of the union executive as part of the claim. He therefore determined and held that this claim had equally no prospects of success and made a similar order.
8. We should say at once that we consider the way the Chairman handled the matter, despite many criticisms made of him, to be impeccable. He has sought, in a very difficult case, to determine the issues, has made a very successful attempt in identifying them and then has dealt with them as a matter of discretionary decision well within his competence. There is no grounds therefore for any attack upon the substance of either decision.
9. The issue before us was limited by reference to a decision by myself in November 2002 that only two grounds of appeal could be argued, namely, the fact that an order had been made in each case.
10. If the cases had been conjoined there might have been some substance in this point, but since they have not, it was entirely appropriate for and, indeed, necessary for the Chairman to make an order in each case and those orders will stand.
11. There is one further complication. It appears that in September 2002 the Chairman, without reconstituting any hearing, proceeded to issue a further order on 10 September 2002, which decision can be found on page 56 of the bundle, ordering that both originating applications be struck out because the money in question had not been paid. It is apparent to us that the Chairman must have made these orders without realising that an appeal had been marked to this Tribunal prior to that order being made in each case. We therefore are forced to the view that at the time he sought to make the order, the Chairman had no jurisdiction so to do because of the case before this Tribunal. That particular order will be quashed and the matter remitted to the Employment Tribunal to reconsider whether both originating applications should be struck out under Rule 7(7) of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001.
12. In these circumstances the decision of the Tribunal dated respectively 14 May and 12 June will accordingly stand. The appeal is therefore refused.
13. Mr Sandison made an application for costs incurred by his clients before this Tribunal having regard to the manner in which the matter had been handled by Mr Kane on behalf of Mrs MacDonald. While we have considerable sympathy with that application we are prepared to take a broad view of the matter in the interests of Mrs MacDonald personally. Accordingly we will make no order for costs.