United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant
For the Respondent	Written submissions


 


HIS HONOUR JUDGE J McMULLEN QC

1. This is an application made by the Applicant under Rule 3 (10) of the Employment Appeal Tribunal Rules 2001. It follows a decision by the Registrar dated 5 June 2003 in respect of his appeal.
2. The EAT has written on a number of occasions to the Applicant seeking to know what he would be doing today and received no reply; but the office was told yesterday that Mr Bond called to indicate that he was attending. Papers were sent out to ELAAS which indicates that he has at some stage sought to have ELAAS assist him. Mr Declan O'Dempsey of Counsel is here today in that role. The case should have started one hour ago. I note that the Applicant is coming down from Southport and I know that there have been problems on the tube at Camden Town; but I have not got any indication of any transport difficulties that would affect Mr Bond's arrival here on the Embankment at this time. So I will deal with the case. Very properly Mr O'Dempsey is not in a position to assist me or Mr Bond in the absence of formal instructions given to him.
3. The procedure in this Tribunal, as is clear from the Practice Direction, is that a judge has considered the papers, has made a recommendation to the Registrar that she consider exercising her power under Rule 3 (7) to hold that there is no jurisdiction for the EAT to hear this case. She has so formed the view that there is no jurisdiction under section 21 of the Employment Tribunals Act 1996 and the Applicant has exercised his right to have this matter put before a judge and in accordance with the practice now this is an oral hearing.

The Facts

4. The Applicant made an application for employment as a Planner to the Respondent following an open advertisement. He was interviewed and was required to carry out a written test. As a result of all the Respondent learned about the Applicant, it decided not to offer him the position. He was born in 1976, has a degree or equivalent in town planning and has some planning experience. The Respondent indicated that there was stiff competition for the post and in due course gave him feedback on his interview. That material is in front of me.
5. The Applicant complained that he had not been given the job. The grounds are set out in manuscript in capital letters in his Originating Application. It is fair to say that they do not include any complaint under any statute justiciable in the Employment Tribunal.
6. Thus it was that the Employment Tribunal promulgated an Order with Summary Reasons on 14 January 2003, Chairman Ms E Donnelly:

2 "The applicant claimed unlawful behaviour on the part of the respondent in that it had failed to appoint him to the position of assistant area planning officer. The applicant did not allege unlawful discrimination or victimisation on grounds of sex, marital status, racial grounds or disability, the only areas in which the Tribunal has jurisdiction in matters of appointment.

3 A letter was therefore sent to the applicant on 24 December 2003, warning the applicant that a Chairman was considering striking out his originating application on the ground that it was misconceived, because the Tribunal had no jurisdiction to hear his claim and the applicant therefore had no reasonable prospect of success. The applicant was offered the chance to make representations if he did not want this to happen.

4 The applicant has not replied and in accordance with the power conferred on me by Rule 15 (2) (c) of the Employment Tribunal Rules of Procedure 2001 I hereby strike out the originating application, because it is misconceived in that the Tribunal has no jurisdiction to hear the applicant's claim and therefore the claim has no reasonable prospect of success."

7. The Chairman struck out the Originating Application. The Applicant was dissatisfied and lodged a Notice of Appeal and also sought a review. She decided that she would not review the decision.
8. The Applicant asked for Extended Reasons and the Chairman decided Extended Reasons would not be given since that application was out of time; and on 25 February 2003 recorded that in writing to him. It also included the following:

"…this claim is totally misconceived."

9. The basis of the Applicant's complaint has not been set out in a Skeleton Argument or in any further grounds put before me except a general complaint that the Respondent is an equal opportunity employer and treated him unfairly. Even in the Notice of Appeal there is no indication of a breach of any statutory provision for which jurisdiction lies in the Employment Tribunal.
10. The Respondent has made written submissions which are amended to include paragraphs numbers of the page numbers in the bundle, for which I am grateful. Summary of the facts, so far as they can be made on the tentative basis which is applicable to a strike-out application, are summarised in the written submissions of the Respondent and I accept those submissions set out in paragraphs 5, 6 and 7 as the Respondent argues them.
11. In my judgment the Notice of Appeal against the substantive decision to strike out and against the failure to review and to give Extended Reasons is correctly described as 'misconceived' and I will uphold the Registrar's decision. The Originating Application does not allege a breach of any relevant statute.
12. Thus I will dismiss the application under Rule 3 (10). I will restore the Registrar's decision that no further action be taken and thus dismiss the Notice of Appeal.