United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL SIMON (of Counsel) Instructed by: Messrs Duncan Lewis & Co Solicitors 1 Kingsland High Street Dalston London E8 2JS
For the Respondents	MR JAMES TAYLER (of Counsel) Instructed by: London Borough of Hackney Legal Services Hackney Town Hall 3rd Floor, 298 Mare Street London E8 1EA


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal by Mr Indro Sen against a decision of an employment tribunal sitting at Stratford on 23 May 2003 under the chairmanship of Mr J. Scannell. The tribunal's extended reasons were sent to the parties on 10 June 2003. By its order, the tribunal struck out two originating applications that Mr Sen had presented. It did so on the ground that his conduct of those applications had been unreasonable. The issue before this appeal tribunal is whether the tribunal misdirected itself in so holding.
2. Mr Sen was formerly a maths teacher at Kingsland School. Between December 2000 and November 2002, he presented four originating applications to the employment tribunal: 3200096/2001 (presented on about 28 December 2000), 3201211/2001 (20 March 2001), 3201564/2002 (1 November 2001) and 3203774/2002 (6 November 2002). The first application joined the London Borough of Hackney ("Hackney") as sole respondent and made allegations of race discrimination. The second joined Hackney as first respondent, the Governing Body of Kingsland School as second respondent and five individuals as third to seventh respondents and made allegations of race discrimination and victimisation. The third application joined Hackney as sole respondent and also made allegations of race discrimination and victimisation. The fourth application joined Hackney and others as respondents, and raised allegations that Mr Sen had been unfairly dismissed or else was unfairly dismissed by reason of taking part in the activities of a trade union. Mr Sen, who is not a lawyer, drafted the first three applications and a solicitor drafted the fourth. The respondents served IT3s in answer to each.
3. At some point the cases were combined with a view to being heard together. On 4 March 2003, there was an interim hearing before the employment tribunal, chaired by Mr Scannell. The purpose of the hearing was to consider whether any of Mr Sen's complaints were out of time and whether any of the respondents should be dismissed from the proceedings. Mr Sen appeared in person and Mr James Tayler, counsel, appeared for all respondents. By the time of that hearing the Court of Appeal had delivered its decision in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, which Mr Tayler admitted affected the points he would otherwise have made on the question of time. However, instead of directing itself straight to the scheduled issues, the tribunal devoted the bulk of the two-day hearing to an exercise directed at distilling from the twelve pages of particulars of Mr Sen's first originating application precisely what allegations he was and was not making. This was perceived to be essential because Mr Sen is not a skilled pleader, and the tribunal's view was that the case he wanted to make should be spelt out with clarity sufficient to enable the respondents to understand the issues they had to meet at trial. At the end of the exercise, Mr Tayler conceded that the acts alleged in the first application (as so clarified) were capable of constituting a continuing act, although he did not concede that they did so, and the tribunal also said that it was not prepared to hold at that preliminary stage that the complaints in that application had not been brought in time.
4. The tribunal's extended reasons for its decision of 4 March 2003 explained all this, and also identified in relation to each paragraph of the particulars in support of the first originating application what claims Mr Sen was, or was not, making in them. The final paragraph of those reasons reads:

"11 At the end of the second day the Tribunal adjourned the proceedings for a further day. Both parties expressed the view that the method adopted of analysing and extracting the allegations made was helpful and thought that considerable time would be saved later on by this process. We are therefore encouraged to spend yet another day dealing with the matters. That day will be 23 May 2003."

5. That further day was to be devoted to a like exercise in relation to Mr Sen's second and third originating applications, which suffered from the same type of problems. Mr Tayler also had an application to strike out the second originating application, which was also adjourned to be heard on that day. The fourth originating application, which had been drafted by a solicitor, did not involve like problems and was not to be the subject of a similar exercise. The further hearing on 23 May had been fixed by agreement between Mr Sen and Mr Tayler. In the extended reasons given for their decision now under appeal, the tribunal explained as follows what had happened on 4 March 2003:

"5 The Tribunal embarked upon what turned out to be a lengthy process of seeking to isolate the issues. The decision of the Tribunal in respect of 4 March 2003 was promulgated on 13 March 2003 and should be read in conjunction with this decision. With the greatest respect to Mr Sen much of the matter in his own pleadings was rather cryptic and concealed or only half-revealed allegations which the Tribunal was, over the period of two days, able to extract from the totality of his pleading, in respect to the first application. As we said on the last occasion though Mr Sen is an experienced representative in the Tribunals he is not a lawyer and not a pleader. The process by which we arrived at the isolation of the allegations made by Mr Sen in his first Originating Application was a lengthy one. The Tribunal took, what in its experience, is an exceptional course of spending so long in a process which involved a constant dialogue and interchange between Mr Sen and the Chairman, with the assistance of Mr Taylor. The process was to distil from comparatively lengthy paragraphs what exactly it was, in a few lines, that Mr Sen was complaining of. The aim was to put the allegations in a form to which the Respondents could plead and in a form which made it clear to the Respondents what was being alleged against them. The process was painstaking, time consuming and required patience on everybody's part. We emphasise that it required the intimate personal involvement of Mr Sen not only to make clear what he was alluding to but also to make concessions where appropriate. Only Mr Sen himself would be of assistance in that process.

6 By the end of the second day the Tribunal had succeeded in dealing only with the first Originating Application. That in itself is an indication of the difficult and painstaking nature of the task. However both parties expressed themselves as very pleased with the result and both parties expressed the wish that the process should continue on another day. It was not anticipated that the second and third applications together would take as long as the first application and the fourth application having been drafted by a Solicitor was not anticipated to take any time at all or to feature very much in the process. In respect of the second application the Respondent made it clear in a skeleton argument, and towards the end of the second day, that he would be submitting that the claims against all the Respondents in the second application were misconceived and that that claim should be dismissed pursuant to Rule 15(2)(c) of the Employment Tribunal Rules of Procedure. That point was heard and understood by Mr Sen.

7 The Tribunal adjourned on 4 March anticipating, as did Mr Sen and Mr Taylor, that Mr Sen would be personally present on 23 May 2003 to take part in the same process which needed his personal attendance and attention. Indeed Mr Sen was good enough to express his gratitude for the process and his enthusiasm for another day engaged in the same procedure."

6. The tribunal then explained that, when 23 May arrived, Mr Sen was unavailable to appear in person because he had pre-booked himself to act as a representative for Miss Cousins in another case being heard in the same building: 23 May was the fifth day of the Cousins hearing. Mr Sen had acted as a representative in that case from the outset, and had known since December 2002 that the substantive hearing in it was to commence on 19 May 2003 and was to be completed within five days and by no later than 23 May. Thus, when Mr Sen agreed on 4 March to the adjournment of his own applications to 23 May, he knew, or ought to have known that, if the Cousins case went the full distance, he would be unavailable to appear in them.
7. Because the Cousins case did run that distance, at about 5.00pm on 22 May Mr Sen instructed Mr Harrison, of the National Union of Teachers, to represent him in his own cases on the following day. Mr Harrison duly attended before the tribunal for that purpose, and explained that he had only had the briefest opportunity to read the papers, but that he would do his best to assist. However, because one of the tribunal members in the Cousins case was delayed in his journey to the building on 23 May, the tribunal had the benefit of hearing not just what Mr Harrison had to say about the position but also, at least briefly, from Mr Sen, although Mr Sen had to return to the Cousins case at 11.50am. The tribunal summarised the position as follows:

"12 So we have a situation where Mr Sen knew or should have known that he was engaged in Miss Cousins' case at this Tribunal on 23 May 2003, and knew or should have known as he was present and he had the letter confirming the date that his presence was expected in his own case on 23 May. Not only did he know that his own case was on 23 May, but he also knew that the particular reason for the hearing and the particular method being adopted of dealing with these matters, in an attempt to clarify the issues, required his personal attendance throughout this case so that the same process of question, answer, suggestion, counter suggestion as took place on the last occasion could proceed.

13 Mr Harrison, knows virtually nothing about this case other than its name. Mr Sen produced to Mr Harrison this morning and to this Tribunal a document marked A1 which Mr Sen says will be sufficient for this Tribunal to do the same process as on the last occasion in his absence. We do not agree. As on the last occasion, many things may arise impromptu, with which Mr Harrison will be quite unable to deal. He has not been instructed. To bring a person and put him in front of the Tribunal and say he is my representative is not the same as proper representation. Mr Sen has not even brought the bundle from which we were all working on the last occasion and from which we will have to work today. Mr Harrison does not know the argument that was put forward by the Respondents in relation to the second Originating Application. Mr Harrison does not have, because the Applicant has not brought them today, the outline submissions of the Respondent. Mr Harrison has not been forewarned, as Mr Sen was, of the points which will be made in respect of this. Mr Harrison's willingness to be representative, with the greatest respect to him, springs from a wish to assist his member. However, he is in ignorance of the real purpose of this hearing. We mean no disrespect to him. He has been put in an impossible position.

14 All these matters became clear while this Tribunal was waiting for the member in the other Tribunal to attend, at which time Mr Sen would be required in that Tribunal."

8. The tribunal was, therefore, unimpressed that Mr Harrison could be of any help in clarifying the second and third applications in the same way as the first application had been clarified on 4 March. Naturally, it considered whether an adjournment was the answer. But Mr Tayler opposed this on the grounds that it would prejudice the respondents. This was because the trial of the four applications had been fixed in December 2002 for some 20 days running from 7 July to 4 August 2003. If the hearing of 23 May was to be adjourned, Mr Tayler submitted that the trial date would also have to be adjourned. This was because the whole point of the hearing on 23 May was to clarify the issues to be canvassed at trial, in the light of which the respondents could locate relevant witnesses and documents and prepare themselves for trial. Any adjournment of the hearing would make it impossible to keep the trial date. In addition, there was the extra feature that the school was going to cease to exist after July 2003, following which its staff would disperse, so making it even more difficult to locate potential witnesses. Mr Tayler also submitted that as Mr Harrison knew nothing about the basis of his application to strike out the second originating application, the tribunal would be unable to make a decision on that application.
9. The tribunal accepted that no adjournment of the hearing of 23 May was practicable. In those circumstances, Mr Tayler applied there and then for an order that the second and third applications be struck out on the grounds that the manner in which Mr Sen had conducted them was unreasonable. Mr Tayler relied on rule 15(2)(d) of the Employment Tribunals Rules of Procedure, although we must also refer to rule 15(3). They read, so far as material:

"(2) A tribunal may –

…

(d) subject to paragraph (3), 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) Before making an order sub-paragraph…(d)…of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

10. No prior written notice of this application had been given to Mr Sen – Mr Tayler could not and did not know until 23 May that he would be making it – but, conscious of rule 15(3), the tribunal said that "Mr Sen and Mr Harrison have been given every opportunity to oppose and have opposed Mr Taylor's application. Mr Sen asked to be permitted to give evidence as to how he found himself in this situation." The tribunal then said, in explanation of its decision to accede to Mr Tayler's application and to strike out the second and third originating applications:

"16 With respect to Mr Sen we must say that his explanation seemed to vary throughout his evidence, but boiled down to this. He was so taken up with the case of Miss Cousins in which he appeared to be a representative that he forgot about his own case and forgot that it was on today, 23 May. He said it was only when Mr Hardy the Solicitor acting for the London Borough of Hackney in both cases delivered the bundle of documents in the Cousins case on 15 May that Mr Hardy mentioned to him the fact that he appeared to be double booked. He agreed he told Mr Hardy an untruth in saying that he had the matter covered. He tells us that he made efforts to phone the National Union of Teachers since that day, 15 May, to arrange representation but he had in fact no contact with anybody to know that representation could be granted until 5 o'clock yesterday afternoon. Even then the person concerned, Mr Harrison had no instructions in any form whatsoever. The document A1 which the Applicant lays so much store by was only completed by the Applicant this morning and given to Mr Harrison, we assume, in this building. The Respondents saw it about 20 minutes before the start today. We have already said that we do not consider that that document would be an adequate substitute for the presence and interaction of Mr Sen himself.

17 We allowed both Mr Sen and Mr Harrison to address us on the application to strike out the second and third applications. There was no application to strike out the fourth Originating Application because it had been drafted by a Solicitor and it was not necessary to subject this to the same process as the second and third applications which Mr Sen had drafted himself.

18 We are faced with a situation where Mr Sen will not be present today. Mr Harrison cannot be of any assistance in the process which was anticipated and we cannot postpone today's hearing because the substantive hearing is fixed for July.

19 It is our unanimous decision that the Applicant has conducted these proceedings unreasonably. With the pleadings as they are, the Respondents are in difficulty as to knowing the case they have to meet and the process whereby the pleadings were to be put in order has been frustrated by Mr Sen's conduct.

20 Mr Sen is left with the first Originating Application. The allegations he makes in this have been clearly set out in a document. These allegations are denied by the Respondents who will deal with them in detail in their statements. They have not been able to take statements properly before the process of distillation and had great difficulty in contacting all the people involved over the lengthy period of time. Also the fourth Originating Application can proceed."

11. The result was that the tribunal made an order striking out the second and third applications. It also made a £500 costs order against Mr Sen. We mention that the tribunal's formal order referred to the striking out of what it described as application No. 3203774/02, a reference to Mr Sen's fourth originating application. This was obviously a mistake: Mr Tayler had not sought the striking out of that application, paragraph 20 of the extended reasons shows that the tribunal had no intention of striking it out and it is clear that the order ought to have given the reference number of the third application. No-one was misled by that mistake and we need say no more about it. Mr Sen's first and fourth applications were both heard over 15 days in July and August 2003 by a tribunal chaired by Mr M.F. Haynes. The outcome was that all the complaints they raised were dismissed. The tribunal's extended reasons run to 64 pages and were sent to the parties on 26 August 2003.
12. Mr Sen now appeals against the tribunal's decision to strike out his second and third applications. He was represented by Mr Paul Simon, who submitted that the tribunal's order was irrational. He said that the tribunal's primary criticism of Mr Sen was that, because he had double booked himself, he was unable to lend his personal assistance to the clarification of the two applications. Mr Simon said that no order had been made requiring Mr Sen to appear in person on 23 May and so there was no reason why he could not be represented by someone else. That could include representation by Mr Harrison, since there is no question that, in principle, Mr Harrison was entitled to appear as his representative. Mr Simon submitted, therefore, that the tribunal's real criticism of Mr Sen is that he failed to brief Mr Harrison adequately for the purposes of the hearing on 23 May.
13. Mr Simon then asked why, even if that criticism is justified, such a failure by a party is to be regarded as amounting to unreasonable conduct of proceedings for the purposes of rule 15(2)(d). He said it cannot be so regarded. A party's inadequate briefing of his representative may mean that the representative will be in a weak position to put that party's case to its best advantage, and to meet and deal with the opposition's case. It does not mean that he should not be entitled to represent that party at all. Mr Simon's criticism of the tribunal's decision is that it never allowed Mr Harrison to represent Mr Sen on the matters to which the hearing was to be devoted. It simply assumed he would be unable to assist it in the resolution of those matters without first giving him the opportunity of doing so. He said that the tribunal had no basis for reaching such a conclusion. He said it ought to have allowed the hearing to proceed in a substantive manner. He was disposed to accept that, if it then emerged that Mr Harrison was unable to assist the tribunal because of the inadequacy of his instructions, it might have been open to the tribunal at that stage to conclude that the proceedings had been conducted unreasonably. Short of that point, at which it never arrived, the tribunal was not entitled to decline to hear Mr Harrison at all and to strike the second and third originating applications out.
14. Mr Tayler's submission was that, under regulation 10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, the tribunal had to have regard to the overriding objective in its case management of the four applications. He referred to the familiar quartet of matters in regulation 10(2) to which the tribunal was required to have regard in its endeavour to deal with the applications justly. He said that the tribunal's decision was an interlocutory one and that, unless it erred in principle, this appeal tribunal should not interfere with it even if it might have been disposed to deal with the matter differently itself. The hearing on 23 May had been fixed on the understanding both of the parties and of the tribunal that the personal attendance of Mr Sen would be required. That was because he alone was able to lend the assistance necessary to enable both the tribunal and the respondents to understand the case he was seeking to make in the second and third applications. In the event, and through his own inexcusable fault, Mr Sen was unavailable to perform that exercise, and Mr Harrison was no substitute because he had inadequate instructions. An adjournment was considered by the tribunal but was rejected. The whole purpose of the hearing of 23 May was to put Mr Sen's second and third applications into a sufficiently comprehensible shape to enable the respondents to know well in advance of the trial the nature of the case they had to meet and for which to prepare. Mr Sen had frustrated that purpose. In the circumstances, the tribunal was entitled to hold that he had conducted the proceedings unreasonably and to exercise the discretion it did under rule 15(2)(d). Mr Tayler emphasised that the tribunal had made findings of fact about Mr Sen's conduct. He said they could not be regarded as perverse and that it was not open to this appeal tribunal to reverse them. He recognised that the circumstances were unusual, but submitted that the tribunal's handling of the matter was proper.

The Decision of this Appeal Tribunal

15. The issue raised by this appeal is ultimately a short one. We have, however, found ourselves unable to reach unanimous agreement on its disposition. The two lay members of this tribunal are in favour of allowing the appeal, whereas the judicial member is in favour of dismissing it. We summarise our different reasoning as follows.

The Reasons of the Majority (the Lay Members)

16. They do not condone Mr Sen's conduct of the matter, and accept he deserved criticism for agreeing to an adjourned hearing on 23 May at which it was expected that he would be personally present, whereas in the event (and through his own fault) he was not and so – at the last minute – instructed Mr Harrison to appear in his stead. They recognise that Mr Harrison's knowledge of, and instructions in, the matter were extremely limited. However, they accept Mr Simon's submission that no order had been made requiring Mr Sen to appear in person on 23 May and that he was entitled to appoint a representative in his place. They consider it follows that there was no basis for the tribunal's finding that Mr Sen's conduct in so appointing Mr Harrison was unreasonable. Alternatively, if there was a basis for this finding, their view is that the tribunal's decision to strike the originating applications out was disproportionate, and was one to which no reasonable tribunal ought to have come. The tribunal was faced with a situation in which Mr Harrison had been appointed to represent Mr Sen's interests at the adjourned hearing, he had indicated his willingness to give the tribunal such assistance as he could, and the majority considers that the only proper decision for the tribunal to have made was to proceed with the hearing as planned and deal with it as best they could. This might have meant allowing Mr Harrison more time during the day to read into the case, which the tribunal could have permitted. But fairness pointed against the summary striking out of the two originating applications without first allowing Mr Harrison the opportunity of presenting Mr Sen's case. If Mr Harrison was not ready to deal with Mr Tayler's application to strike out the second originating application, then that was unfortunate for Mr Sen, but Mr Harrison ought to have been given the opportunity to deal with it as best he could. In short, the majority's view is that the tribunal's decision was premature, disproportionate, unfair and outside the range of decisions reasonably open to it. They would allow the appeal, set aside the orders striking out the second and third originating applications and remit to the tribunal for re-hearing the substantive matters intended to be canvassed on 23 May 2003.

The Reasons of the Minority (the Judicial Member)

17. As the draftsman of this judgment, I will express my own views in the first person. I was for some time attracted by the majority's reasoning, but have ultimately felt unable to agree with it. The circumstances of this case are unusual but a critical factor in the fairness of the disposition of the complaints Mr Sen was raising in his second and third originating applications is that the respondents were entitled to know their precise nature. Without this knowledge, they could not prepare properly for the trial and would be subjected to injustice. The tribunal was satisfied on 4 March 2003 that Mr Sen's drafting of his first three applications did not give the respondents the necessary knowledge. In the circumstances, and unusually, it engaged in a prolonged exercise directed at identifying the nature of Mr Sen's allegations. That exercise was one in which Mr Sen's personal input was essential, since only he knew what case he was seeking to make. At the end of the two-day hearing the tribunal had only had time to deal with his first application. They considered – and all parties agreed – that a like exercise had to be performed in relation to the second and third applications. Mr Sen's personal input would again be essential, and 23 May was fixed as the day when it would be performed.
18. When the 23 May arrived, Mr Sen, through his own fault, was unable to take part in the exercise. An adjournment was not practicable, and the tribunal found as a fact that Mr Harrison's knowledge of the case – even with the assistance of document A1 – was such that he would be unable to perform the exercise on Mr Sen's behalf. In my view, that finding was one the tribunal was entitled to make. Mr Harrison had no personal knowledge of the matters of which Mr Sen was complaining, and the scanty instructions he had received could not possibly have enabled him to perform the exercise the tribunal required to be performed. If Mr Sen had been also been able to be present, so as to give Mr Harrison instructions on the points that arose, it would have been different. But he was not, and I accept Mr Tayler's submission that document A1 was no adequate substitute for Mr Sen's personal presence.
19. I agree with the majority that there was no order requiring Mr Sen to appear in person on 23 May. But the real substance of the tribunal's criticism of Mr Sen was not simply that he had instructed Mr Harrison to represent him, but that (a) he had not provided Mr Harrison with the instructions necessary to enable the tribunal to perform the task it required to be performed, namely to put the second and third applications into a comprehensible shape, and (b) he was not able to be present so as to give Mr Harrison necessary instructions as and when the need arose. In these circumstances, the tribunal found that the exercise it had expected would be performed on 23 May could not be performed. No adjournment was practicable, and there was therefore no prospect that the second and third applications could, with sufficient promptness, be put into a shape which would permit a fair trial of them at the hearing fixed for July. Whilst the majority consider that the tribunal should have given Mr Harrison the opportunity of presenting Mr Sen's case, I do not regard that as a realistic alternative. The tribunal's finding was that Mr Harrison was simply a mouthpiece, who knew no more about the cases than their names and who had only that morning been put in possession of document A1. Their finding of fact that he could not provide the help which the tribunal required is, in my view, one which this appeal tribunal cannot question. I recognise that other tribunals might have disposed of the matter differently. I have, however, concluded that, in the unusual circumstances of the proposed agenda for 23 May, the tribunal was entitled to find that Mr Sen had unreasonably frustrated its due fulfilment and so had conducted the proceedings unreasonably. I consider that its consequential decision that the second and third originating applications should be struck out was one it was entitled to make, and that it did not involve any error of law. I would have dismissed the appeal.

Result

20. For the reasons given by the majority, the appeal will be allowed. We will make an order setting aside the tribunal's decision striking out Mr Sen's second and third originating applications. We will remit to the same tribunal for a rehearing those matters which were to have been the subject of the hearing fixed for 23 May 2003. In case it should appear to the regional chairman to be either impracticable or impossible to reconstitute the same tribunal for that purpose, we will direct in the alternative that the matter be remitted to a differently constituted tribunal as directed by the regional chairman.