United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JONATHAN SWIFT (of Counsel)
For the Respondent	MR A R DOLBY (the Respondent in Person)


 


MR RECORDER BOWERS QC

1. Mr Dolby was a Prison Officer employed at Her Majesty's Prison Exeter between 22 June 1992 and 31 July 2001, when he resigned from that employment. By an Originating Application presented on 24 October 2001 he presented complaints of "discrimination, bullying, harassment, constructive dismissal."
2. The Notice of Appearance included the assertion that Mr Dolby had been suspended from work with effect from 16 May 2001 because evidence had come to light which indicated that he had, without the necessary permission, engaged in secondary employment. At the time of his suspension he and his trade union representative were shown video and photographic evidence which showed Mr Dolby undertaking cleaning work at a public house. The Prison Service made the point that he had resigned his employment before the disciplinary hearing, in order effectively to avoid that hearing.
3. By letter dated 19 November 2001 the Prison Service requested the Tribunal to hold a pre-hearing review under Rule 7 of the Employment Tribunal Rules 2001. By a further letter dated 18 January 2002 the Prison Service requested the Tribunal to strike out the Originating Application under Rule 15 of the 2001 Rules.
4. Both applications were heard together by the same Tribunal on 29 January 2002. At that hearing the Tribunal struck out Mr Dolby's claim under the Disability Discrimination Act 1995 and there is no appeal from that finding. On the application for a pre-hearing review of the unfair dismissal claim the Tribunal ordered that Mr Dolby pay a deposit of £100 as a condition of continuing that claim; again, there is no appeal from that finding. The Tribunal declined to strike out the unfair dismissal claim.
5. In fact the Tribunal gave three decisions to which we need to refer. The first (dated 13 February 2002) is on the pre-hearing review and is in a short form and we read it all:

1 "The primary difficulty facing the Applicant is to identify the behaviour on the part of the Respondent which amounts to a sufficient breach of contract and is sufficiently close in time to the date of resignation to link it to the resignation itself. Whilst the Applicant has a number of complaints which may well have substance, they are not sufficiently close to the resignation.

2 There is another factor: that is to establish the real reason why the Applicant left the employment. There were impending disciplinary proceedings and they appear on the face of it to be the main reason why he resigned.

3 We consider that there is no reasonable prospect of success in respect of the unfair dismissal claim. Having heard something of the Applicant's financial position we order a deposit of £100."

They thus decided, in effect, that the application was misconceived because it had no reasonable prospect of success.

6. In the second decision the Tribunal (on 26 February 2002) simply made an order that

"the application by the Respondent to strike out the claim for unfair dismissal (constructive dismissal) is dismissed."

7. The third decision is dated 19 March 2002 and came subsequently to the Notice of Appeal being lodged. The decision is headed "Extended Reasons (At the Request of the Respondent)." It begins by setting out the relevant rules. The important passages are as follows:

6 "The purpose [of a pre-hearing review] is to form a view without hearing evidence and therefore without finding necessary facts as to the prospect of success. It is essentially an opinion without hearing the merits of the case. If in the light of the expression of that opinion an Applicant decides to continue with the proceedings a deposit may be ordered, and usually is.

7 It appears to us that the purpose of Rule 15 is to allow the Tribunal to strike out a case which cannot succeed because, for example, there is no jurisdiction or it is clearly brought against a person who cannot possibly be liable. To reach a conclusion under Rule 15, in our judgment, the Tribunal must conclude as a fact and not simply as a view that the proceedings are misconceived and have no reasonable prospect of success. On that interpretation the procedure set out in Rule 7 relating to a pre-hearing review is not inconsistent with the powers afforded to a Tribunal under Rule 15.

8 There is also significance in the fact that Rule 15 (2) contains a proviso for discretion. The Tribunal "may strike out". That discretion, in our judgment, ought to be exercised in the context of the purpose of holding a pre-hearing review, which is to take a snapshot view of the prospect of success, rather than reach a decision on established facts…

10 Those are the reasons why we concluded that the application for unfair dismissal was not misconceived because there was sufficient information to support the possibility of a claim. We also pointed out that whether it was successful or not would depend on the facts found by the Tribunal only after a full hearing. In the pre-hearing review proceedings we were applying a different test."

(Our underlining)

It is crucial to the appeal for the Appellant to demonstrate that in fact the tests are not different.

The 2001 Rule Changes

8. The meaning of "misconceived" for the purpose of Rule 15 is defined in Rule 2 of the Employment Tribunal Rules as including having no prospect of success. Nothing turns in this appeal on the use of the word "includes". The amendment to incorporate "misconceived" into Rule 15 to go alongside "vexatious" and to replace "frivolous" was intended by Parliament to liberalise the powers of the Employment Tribunals to strike out cases, following a series of cases in which it was unclear whether Tribunals did indeed have the power to strike out cases which have no reasonable prospect of success.
9. These five features of the revised regime should be noted. Firstly, we agree with Mr Swift that there is no basis for giving the words "no reasonable prospect of success", incorporated within the word "misconceived" in Rule 15, any different meaning from "no reasonable prospect of success" under Rule 7. This cannot have been the intention of Parliament, nor is it a proper exercise of statutory interpretation.
10. Secondly, the Tribunal's suggestion that for the purposes of an application under Rule 7 all that is required is that a "view" be taken, whereas under Rule 15 the Tribunal must find matters as facts, is, with respect, an error. We do, however, accept that the focus of Rule 7 is slightly different to Rule 15 on two bases. Firstly, under Rule 7 there is a specific provision as to what aspects must be taken into account before a pre-hearing review can determine that a deposit is given; namely, the contents of the Originating Application and Notice of Appearance, any representations in writing and any oral argument. There is no such provision in relation to Rule 15 and it may be that Tribunals will look at a different range of materials in that regard; in particular concentrating on the "pleadings". Secondly, there is a slightly different focus in relation to the time at which an application may be made. Under Rule 7 such an application may only be made "at any time before the hearing of an Originating Application", whereas under Rule 15 it may be made "at any stage of the proceedings"; and, as Mr Swift rightly stated, that could mean during the course of a hearing itself. That said, however, we do not think it at all helpful to see one as a view and one as a finding of fact as the Tribunal did in this case. The Tribunal, in either case, must conclude that on the material before it the case has no reasonable prospect of success, whether the case is that of the Applicant or the Respondent. That phrase cannot have a different meaning in exercising discretion under the two rules.
11. Thirdly, the Tribunal now has similar powers to the civil courts to strike out (see Civil Procedure Rules 1998 3.4 and 24.2).
12. Fourthly, we do not think that the strike out provision is limited to cases where there is no jurisdiction in the Employment Tribunal or it is clearly brought against a person who cannot possibly be liable as this Tribunal thought. We accept that the Tribunal were only giving examples when they said this, but we do think that it reflects their disinclination to give a wide meaning to the new powers. We do not consider that Tribunals should take so narrow a view.
13. Fifthly, we agree with Mr Swift that Rule 15 (as amended) does require Tribunals to make a robust judgment on the merits of the application; but one must bear in mind that this is a judgment at a stage well before facts are found and before any process of disclosure and request for further information can take place. This may put a different complexion on a case.

The Options for the Employment Tribunal

14. We thus think that the position is that the Employment Tribunal has a range of options after the Rule amendments made in 2001 where a case is regarded as one which has no reasonable prospect of success. Essentially there are four. The first and most draconian is to strike the application out under Rule 15 (described by Mr Swift as "the red card"); but Tribunals need to be convinced that that is the proper remedy in the particular case. Secondly, the Tribunal may order an amendment to be made to the pleadings under Rule 15. Thirdly, they may order a deposit to be made under Rule 7 (as Mr Swift put it, "the yellow card"). Fourthly, they may decide at the end of the case that the application was misconceived and that the Applicant should pay costs.
15. Clearly the approach to be taken in a particular case depends on the stage at which the matter is raised and the proper material to take into account. We think that the Tribunal must adopt a two-stage approach; firstly, to decide whether the application is misconceived and, secondly, if the answer to that question is yes, to decide whether as a matter of discretion to order the application be struck out, amended or, if there is an application for one, that a pre-hearing deposit be given. The Tribunal must give reasons for the decision in each case, although of course they only need go as far as to say why one side won and one side lost on this point.

Disposal of this Appeal

16. We do think that, in the light of what we see as the proper approach to the law, this Employment Tribunal misdirected itself and reached in fact inconsistent findings and they did not actually exercise their discretion in relation to Rule 15 at all. In those circumstances we could remit the matter to a Tribunal for further consideration of this matter but we do think that that would not be in the interests of either party to do so.
17. Mr Swift invited us to carry out that exercise ourselves, pursuant to section 35 of the Employment Tribunals Act 1996, primarily because of the time that has elapsed since the Tribunal hearing and the fact that since it was made on documentary evidence and oral submissions we were in as good a position as the Tribunal to so assess. With some reluctance we do embark on that exercise.
18. We record that Mr Swift's primary submissions on this part of the case was that it could not be said that Mr Dolby had resigned in response to a serious breach of contract which is essential for constructive dismissal. The sequence of events was one from which it could only be inferred he said that he resigned because he did not want to face the music in his disciplinary matter. He said it was fanciful to suggest that the Prison Service was not entitled to suspend him and that we should bear in mind that Mr Dolby's own trade union representative advised him not to contest the disciplinary hearing. He said that on those grounds it was quite clear that the claim had no reasonable prospect of success and that we should strike it out.
19. We approach this matter in the light of the fact that the Employment Tribunal itself has in the first decision found that there were serious gaps in the Applicant's case, as we have already recorded; but we do think that it is important to bear these features in mind. Firstly, the claim is one of constructive dismissal. That means that the onus of proof lies on the Applicant; but by the same token there may be a whole series of acts over a long period which lead to a resignation, of which the last is the final straw and as we understand it that is effectively the way in which Mr Dolby today puts his case.
20. Secondly, Mr Dolby's complaints do, at this stage, have to be accepted as being true. As Mr Swift accepted in the course of argument, we are not in a position to adjudicate on any factual disputes in what is, we think, in some respects, a fact sensitive case.
21. Thirdly, as Mr Swift contended, the issue before the Tribunal will not be whether Mr Dolby was or was not engaged in secondary employment whilst on leave, but whether the resignation was in response to a fundamental breach of contract.
22. Fourthly, we cannot consider any matters taking place after the resignation, as Mr Dolby sought to have us do in his documents.
23. The primary features of Mr Dolby's case (and this is not intended to be a comprehensive account) arise from an incident on 8 May 2000 and Mr Dolby accepted that nothing which went before that date was part of his reason for resigning. He says that he then intervened on two inmates who were fighting in a cell. Both inmates were restrained and placed in a segregation unit. He intervened in an assault on the segregation officer. An inmate was bleeding and a large amount of blood went over him. He complains that he was not told about the hepatitis state of the inmate until some time later. In consequence he had to go on sick leave and he makes a series of complaints about his treatment whilst on sick leave, including bullying letters and harassing telephone call from his employer. We repeat that we cannot find any facts today – we are not purporting to do so – and those claims may be wholly unsubstantiated. He also says that he was not allowed to move shift patterns as another diabetic was and that he was refused a job in the control room.
24. In relation to the disciplinary hearing which was about to take place when he resigned, he says that at the last moment before it a principal officer in whom he had confidence was taken off the case and he thought that he was in effect being "stitched up" by having another officer being brought in. He complains that he was suspended on the day that he came back to work and that he was humiliated in front of his fellow officers.
25. We envisage that many of Mr Dolby's allegations will be difficult for him to substantiate and indeed difficult to relate in a causative sense to the resignation, but we do not think that they merit a striking out. We do, in so deciding, fully have regard to the fact that the case will be expensive to defend. It appears unlikely that if costs were awarded they would be recoverable from Mr Dolby and it could use up Tribunal resources for a considerable period.

Case Management

26. We do think that it is appropriate for us, again exercising our powers under section 35 of the Employment Tribunals Act 1996, to make certain directions for the future progress of this case in order to avoid further delay and to seek to keep it within reasonable bounds, because we are conscious of the fact that such cases can be needlessly protracted if the issues are not set out at a stage before the Tribunal begins.
27. We therefore order as follows: that Mr Dolby sets out the precise nature of his case within the next 14 days. It may be that he will simply seek to rely on the contents of his Originating Application, as supplemented by his Skeleton Argument; but if he is intending to refer to anything else at the hearing he must so state within 14 days and he must not thereafter expect any leeway before the Employment Tribunal if he seeks to introduce new issues.
28. Secondly, the Prison Service will then have 21 days thereafter to indicate whether there are any agreed facts and, on the basis of the pleadings and any further statement from Mr Dolby, to produce a list of issues which hopefully can be agreed in advance of the hearing. In the event of disagreement the parties have leave to refer the matter back to the Employment Tribunal to decide the issues, including what we have in mind is that once the issues are defined it may be possible to limit the length of the hearing and the nature of the evidence.
29. We think that this approach is in keeping with the overriding objectives set out in the Employment Tribunal Rules.