United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A HODGE (of Counsel) Instructed By: Tameside Welfare Rights Unit 200 Market Street Hyde Cheshire SK14 1HB


 


JUDGE J ALTMAN:

1. This is an appeal from the decision of an Employment Tribunal held at Manchester on 8 April 2002, when the Chairman, sitting alone, dismissed the application of the Appellant Respondent to strike out the Applicant's claim.
2. The power to strike out a claim is contained in paragraph 15 of Schedule 1 of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2001 and states that:

"15(2) A tribunal may -

...

(d) ... at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious."

3. In this case the Respondents maintained that the Applicant had engaged in very serious misconduct which they would contend related to the way in which she brought her proceedings, or conducted them herself through her advisers. The complaint is that in dismissing their application the Chairman failed to consider recent incidents as set out in the correspondence to the Tribunal and, of course if true, as the Chairman observed, the allegations of misconduct are indeed of the most serious kind. Also, lying at the back of the application is the belief on the part of the Respondents that the Applicant is intent on using these proceedings in order to damage the Respondents further.
4. In the Extended Reasons the learned Chairman said that the essence of the application turns upon a bundle of documents ending, apart from one document, with a letter of 27 June 2000. The other document was one from the Police of 11 February 2002 relating to a burglary of the Respondents' premises at about that date which it is believed by the Respondents involved the Applicant. The learned Chairman dealt with that in a way that cannot be criticised as containing any error of law and came to the view that, as no police proceedings had been concluded, he could not draw any inference from it one way or the other. He then set out the allegations against the Applicant, presumably as the Chairman understood it to be, in relation to the allegations of misconduct being made. First there was the misuse of confidential information, which, we pause to observe, does not seem to have anything to do with the conduct of the proceedings. Secondly, there was behaving in a way designed to result in the Respondents, a voluntary organisation, losing their funding, again which does not appear directly associated with the proceedings and, thirdly, there was the association with the burglary to which I have referred.
5. The learned Chairman then expresses the view that the other matters date back to the year 2000, and the Chairman expresses a view about the allegations and the mischief that it is believed the Applicant had indulged in. The Tribunal said that they had been assured by the Applicant that that had nothing to do with her case and the Chairman reminded her that that was the fact. It does appear that there was seriously threatening correspondence from the Applicant, to which the Chairman refers, to do with the appeal from dismissal, that was again no doubt nothing to do with the actual proceedings before the Tribunal.
6. We would only part company with the Chairman on one matter in paragraph 4, which is not central to the appeal. There may well be circumstances in which the conduct of the Applicant would be relevant to the final hearing of her case, if her behaviour so undermined her credibility as to affect the Tribunal's judgment as to evidence of subsequent events and, of course, if someone has a motive for distorting the evidence that may be a circumstance that is taken into account. We form no view one way or the other of this, as the Chairman did not do either, because like him we have not investigated the evidence.
7. The Chairman then goes on to say that the history of the matter goes back to the year 2000 and is really too old to form a sound foundation of an application for striking out. He said:

"In those circumstances, however reprehensible the applicant's conduct may have been - and I am dismayed that she should have conducted her case in the manner in which I referred to above - I do not feel it amounts to scandalous or disruptive or vexatious conduct and it is not a sound basis for striking out her application, which will proceed now to a hearing."

8. The complaint is that there was correspondence before the Tribunal dealing with other matters as well. We have seen the letter of 20 March written by Mr Hinds for the Applicant questioning the integrity of a witness in relation to his availability. Whether or not that was justified, of course, we know not but that in itself would not be the basis for striking out a claim. There is a letter dated 21 March to the Employment Tribunal enclosing that letter and referring to a number of very serious allegations against the Applicant which led the Respondents to apply for striking out and, indeed, a letter in a similar vein had been written direct to the Applicant's representative.
9. In another letter, dated 21 March, sent by fax as the others were, to the Employment Tribunal, the Respondents draw attention to a number of documents and acts in the year 2000, leading to the document in February 2002 and indicating, it seems to us, that that is the history of the matter and appearing, on the face of it, to be the letter upon which the Chairman of the Tribunal is relying. The following factors therefore appear. It is not obvious on the face of the Tribunal decision that the Chairman had in mind the first letter of 21 March, to which I have referred. Secondly, however, it does not appear, on the face of that letter, that any more recent incidents were in fact being spoken of, although we have been told in the course of argument today that events had taken place over the previous few days. Thirdly, on the face of the letters were allegations that had been untested and in order for a Tribunal to come to a view about the truth of the allegations being made against the Applicant, they would no doubt have had to investigate the evidence and make findings of fact in relation to it, or the Chairman alone would have had to do so and that process was never initiated. It is obviously a draconian step to shut someone out of their application to a Tribunal. Fourthly, whilst the matters alleged are on the face of it serious misconduct, the Rule does require that the misconduct being scandalous unreasonable or vexatious must relate to the manner in which the proceedings have been conducted and it is not obvious on the face of it how all or, at least the majority of the matters complained of relate to the manner in which the proceedings have been conducted. Finally, we have come to the view that, on the material before the Chairman, he was entitled to exercise his discretion and come to the view he did.
10. Mr Hodge has said that had the Chairman adverted to the more recent letter, even though the recent dates are not set out, he may have come to a different conclusion. But on the face of the information before us, we have no reason to believe that the Chairman has not, in fact, seen those letters and assumed that they were not recent. There may have been some misunderstanding, we know not, but Employment Tribunals are given a very wide discretion to regulate their own procedure and on an interlocutory matter such as this, it seems to us first of all that the Chairman was perfectly entitled, on the information before him, to come to the conclusion he did and that, secondly, for the reasons we have outlined, we doubt very much that any other Chairman would have come to a different view bearing in mind the paragraph of the Regulations which had to be applied.
11. It seems to us therefore, that there is no arguable error of law on the face of the decision of the Employment Tribunal and this matter falls to be dismissed therefore at this stage.
12. Before departing from the case, however, we would simply mention from our perspective here, having heard Mr Hodge and without any knowledge of the rights or wrongs of this case, that the Respondents being as we understand it, are an organisation that provides benefit and support in relation to welfare rights, to those who would not otherwise have that support, and depend so it appears, on very modest funding. We would invite the Tribunal to reconsider the extent to which the very detailed administrative directions are really needed in this case and the extent to which a very long hearing of as much as three days need be set aside for it.
13. It may be that if issues can be clarified there could be a saving of costs but we do not know the full story and only draw that to the attention of the Chairman in the event that he wishes to review his directions. The appeal will be dismissed.

There will be a transcript of this judgment prepared for the members and to be sent to the Tribunal.