United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL GRIFFIN QC (Bar Pro Bono)
For the Respondents	MR GARETH THOMAS (Solicitor) Messrs Eversheds LLP Solicitors 1 Callaghan Square Cardiff CF10 5BT


 


SUMMARY

Equal Pay Act – Out of time

A hearing which was to be about whether the Claimant was to be warned as to costs and pay a deposit turned into a hearing as to a strike out. Apart from this procedural issue the EAT agreed with the Appellant that to strike out a case when there were a number of crucial issues of fact – which could only be resolved by an oral hearing – was inappropriate. The Appeal was allowed. The EAT did not consider it right to decide whether the Appellant should pay a deposit and he warned about costs but considered that was a matter which the Employment Tribunal should consider.


 


HIS HONOUR JUDGE PUGSLEY

1. This is a case in which we would all like to begin by saying, somewhat unusually but uninhibitedly, we are extremely grateful for the high quality of the advocacy we have had before us. All the more impressive since it was not linked with other prolixity or pomposity. This is a difficult case in the sense that, if we may say so, we fully understand the legitimate concerns. There are in various areas of the law, not by any means confined to employment issues but other areas as well, where the sheer inexorable growth in the consumption of resources by the litigation process is one that seriously prevents public authorities from carrying out other work which would be much more beneficial to the public at large than paying lawyers to be involved in litigation.
2. Put very bluntly this case encapsulates in clear form whether or not the Applicant, a medical practitioner, should be allowed or denied access to the Court to put his case. We have been much assisted in the decision by the professional integrity of Mr Thomas who has appeared for the Respondent. He has put before us a decision of the President of his Tribunal. It was a case in which, ironically, the preliminary hearing was heard by the self same Chairman on matters with which we are concerned.
3. We have looked at that case Mr A Ezsiai v North Glamorgan NHS Trust and we note in particular paragraphs 50 onwards of the decision of Elias J (the President). In a nutshell we have grave concern as to the way this case was dealt with and we are concerned that in layman's terms, which we consider appropriate, there is a perception that Dr Uruakpa got a rough deal and we think we should intervene. In brief the reason we say that is this.
4. At the relevant time the Appellant was working in the First Respondent's Department of Obstetrics and Gynaecology and the Second Respondent, Mr Stokes, was the Chief of Staff. The Appellant made a number of different allegations. These have crystallised into two allegations, namely that the Second Respondent called upon the Appellant to shorten the time which he took to carry out caesarean sections and that, in effect, he was being subject to a monitoring and criticism which would not have applied save for his race. Secondly he was carrying out an operation in the Second Respondent's presence and the latter told him he was standing like a donkey, and in another version was standing like a donkey having a pee. It is said that would not have been the sort of remark which would have been used about a white doctor.
5. The hearing on 14 December took place in the following circumstances. The Respondent Health Care Trust made an application at a pre-hearing review in December 2004, in which they failed to persuade the Tribunal that the Appellant's claims had little or no prospect of success. At page 155 of the bundle of documents there is there set out the record of that in the papers.
6. Thereafter a substantive hearing was ordered to take place in March of 2006. There had, it is right to say, been fair previous final warnings, awkward dates for cases which had not gone on due to the validated illness of the Appellant. But in December 2005 the Respondent's solicitors applied for a further PHR to take place at the same time as the case management discussion. They acknowledged the earlier PHR hearing was sought to justify further consideration on the basis of witness statements that have now been exchanged, although that had taken place several months previously, and they had received further information about the subsequent employer's assessment of the position of the Appellant and about an interim restriction placed on his GMC registration.
7. The Tribunal agreed to this request and on 9 December 2005 the Appellant wrote to the Tribunal saying he had just received a letter and seeking a postponement of the PHR due to the short notice. He no longer was represented, the BMA having withdrawn the assistance he had previously enjoyed, and he had only been expecting to attend a CMD on 14. He said:

"I don't really know what a review hearing for a deposit order entails, and required more time to prepare or seek legal representation. Further I have not been served the further documentation which the Respondent wishes to rely on at the hearing, hence I shall be completely disadvantaged if the hearing were to take place on 14 December."

8. His application for an adjournment was refused. He was told at the pre-hearing review for a deposit order the Chairman will not hear evidence. He or she will consider the details set out in the claim and response forms and hear what arguments you intent to put in support of your case. If he or she is of the opinion that your case has little or no reasonable prospect of success, you will be ordered to pay a deposit as a condition of proceeding and warned as to the possibility of costs should you proceed and prove unsuccessful. The Chairman sees no reason to postpone the pre-hearing review. You have had ample time in which to understand and formulate your own case.
9. It was only during the hearing on 14 December that the Appellant was told by the Chairman that a possible outcome was the striking out his claim and not just of a positive costs warning. The material put before the Tribunal went far beyond the EA1 and the ET3. There were a number of bundles. Some of the items were old items, some, as we understand it, were of the new matters concerned of opinions voiced about the Appellant after his response. Quite simply, for the reasons that Mr Gammon gave in an exchange with Mr Thomas, there is a distinction between going along to a hearing, knowing that the result may be having to find a deposit and given warnings to costs, and going on to find your case could be struck out. We do not wish to go down a route, a long route, of looking at identical positions from disciplinary hearings but we consider that a party who has lost legal representation should be properly told before a hearing what was the position.
10. It is all very well saying, as Mr Thomas did with such skill that the Claimant could have applied for another adjournment or asked for time; that is to impute to a lay litigant the audacity and knowledge of someone experienced in the way in which Courts and Tribunals operate. Judged by the yardstick of an inexperienced litigant, albeit a very highly-qualified one in other areas, we think that is unfair to the Appellant. The fact you have been represented means that the full concern of looking at the papers does not devolve on you as it does it you are representing yourself. It meant the Appellant did not have the opportunity to prepare documentary evidence to support his own case. We would allow the Appeal on that ground but we have to say there is in our view an equally important ground and it is this.
11. It is all very well but you cannot try a case on paper. You simply cannot do it. Here there are material issues of the fact that the Tribunal had to resolve. And there are real issues they had to resolve, not just of the narrow simple fact but of the way the context in which those facts emerge. Anyone with experience of litigation will know that there are cases which seem unlosable that are lost, and those that seem doomed to fail which are won. It happens in personal injury cases, it happens in criminal cases, it happens in first instance in employment cases, and it happens even on appeal where a provisional view is sceptical as to the merits of one side or the other.
12. We note, as the decision of Elias J (the President) makes clear, that power to strike out was amended so as to be less vigorous. We accept that that Mr Thomas has put it to us very forcibly this case simply has no reasonable prospect of success. This is not a case in which the Claimant lacks a fundamental qualification for the job.
13. One has to say, with the greatest of respect to the Appellant, it may well be an uphill struggle. But at the end of the day, even in its more relaxed form, we do not think it was fair to strike out this case on the information before the ET Chairman.
14. Much in this case would depend on the findings of fact made by a Tribunal and we do not consider that, not withstanding the overriding objectives of the Tribunal, we do not think that this is a case where Dr Davies was right to strike this case out because it is not a case in our view where it satisfies the relevant test of there being no reasonable prospect of success.
15. That is not to say that we are in any way either encouraging or stopping an application by the Respondents to consider whether or not it is right that the Appellant should be ordered to pay a deposit and given a warning of the costs. Mr Thomas invited us to take that course. Having heard Mr Griffin we are bound to say we think that that is a matter that should not be dealt with on the tail end of this case. There are arguments for and arguments against that course but we are saying that certainly the Respondent should not be debarred from making such an application if they felt it appropriate.
16. Put very simply, much in this case will depend on the evaluation of the evidence that any Tribunal hears. That will not just be for narrow findings of fact on specific dispute issues. There will need to be of the wider culture that assessed the significance and relevance of such findings of fact that are made. We believe the Appellant has the right of any person to have his case heard and that it is wrong to pre-empt that right unless there are clear, cogent and compelling reasons to say there are no reasonable prospects of success.
17. We do not believe that any Tribunal could make that evaluation on paper on the particular facts of this case. The appeal is allowed.