United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN J F NECKLES (Representative)
For the Respondent	MR MARCUS DIFELICE (Solicitor) Brabners Chaffe Street LLP Solicitors 55 King Street Manchester M2 4LQ


 


SUMMARY

Practice and Procedure – Striking-out/dismissal

Strike-out for refusal to comply with disclosure order made during course of substantive hearing. Fair hearing not possible. Proportionate response. Appeal dismissed.


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mr Essombe, the Claimant, before the London (South) Employment Tribunal against the Judgment of a Tribunal chaired by Mr I M MacInnes, promulgated with Reasons on 7 April 2006, striking out all his claims brought against the Respondent, his former employer Nandos Chickenland Ltd, under Rule 18(7)(e) of the first Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

Facts

2. The factual background is important. The Claimant was employed by the Respondent from 17 June 2002 until his summary dismissal in April 2005. He was the Assistant Manger of their Balham restaurant.
3. He commenced proceedings in the Employment Tribunal on 10 May 2005, complaining principally of unlawful race discrimination and unfair dismissal. The claims were resisted.
4. A substantive hearing of the claims commenced before the MacInnes Employment Tribunal on 2 August 2005. On the next day a point arose on disclosure. The Claimant had attended internal disciplinary hearings on 1 and 4 April 2005, leading to his dismissal. At those hearings he had brought in a camcorder and, on the Tribunal's findings of fact, told the Tribunal in evidence that he had recorded the proceedings. He was ordered to disclose the relevant tape recordings by order of the Tribunal dated 4 August 2005.
5. Thereafter, issues arose between the parties. As to the first hearing on 1 April, the Claimant contended that he had recorded only 17 minutes of the hearing; there had then been an adjournment and he forgot to restart the camcorder after the adjournment. The Tribunal accepted that account. He disclosed 17 minutes of tape to the Respondent.
6. As to the second hearing, his position was that he did not have a camcorder with him (despite his admission to the Employment Tribunal on 3 August). Two managers present at the 4 April meeting, Mr Iesini and Mr Kamp, told the Tribunal that he did have his camcorder with him at that meeting. The Tribunal accepted their account. That finding is not challenged in this appeal by Mr Neckles; nor could it be. It is a finding of fact supported by evidence.

Employment Tribunal Decision

7. It is significant, we think, that at the 4 April disciplinary hearing, Mr Kamp took notes. They were not a verbatim record. The Claimant was asked to sign them as accurate and he declined to do so. At the subsequent Tribunal hearings, factual disputes arose as to what was said at that, and other, disciplinary meetings.
8. The Tribunal (Reasons, para 5) regarded the conflict of evidence as to what was said at the meetings as crucial. Recourse to the tape recording, which they found had been made, was the best evidence of what was in fact said.
9. They concluded that the Claimant had directly and consciously refused to comply with the Tribunal's order of 3 August and they struck out the claims under Rule 18(7)(e) which provides:

"(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order:—

…

(e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction;"

10. In arriving at their conclusion, they considered the Judgment of Burton P in Bolch v Chipman [2004] IRLR 140, a case concerned with strike-out under rule 18(7)(c), which provides for striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings had been conducted by or on behalf of the Claimant has been scandalous unreasonable or vexatious. At paragraph 7 of their Reasons they said this:

"7. We had regard to the Judgment of the Employment Appeal Tribunal in Bolch v Chipman - which applies to the strike out under Rule 18(7)(c). While we consider the Claimant's conduct of the proceedings is unreasonable in this respect, we emphasise we strike out for failure to comply with the Tribunal's Order. We consider that of itself to be sufficient. It would be intolerable if parties thought they could deliberately ignore Tribunal orders and then plead that nevertheless a fair hearing was still possible (as, in this case, we would hear oral evidence from all those who attend the disciplinary hearings on 1 and 4 April 2005). The encouragement to exclude documents that might prejudice that party's case would in any event mean that a fair hearing would be impossible."

The Appeal

11. In advancing this appeal, Mr Neckles, accepting as we have said the Tribunal's findings as to the Claimant's breach of the disclosure order, submits that the Tribunal erred in its approach. It did not consider whether a fair hearing was still possible; it did not consider the balance of prejudice between the parties, as directed in Bolch. Further, it did not consider whether some lesser sanction (given that the substantive hearing was underway) was appropriate, nor whether striking out was a proportionate response to the Claimant's breach of a Tribunal order, as explained by Sedley LJ in Blockbuster Entertainment Ltd v James [2006] IRLR 630, para 21, a decision of the Court of Appeal reached after this Tribunal's hearing in March 2006. There, his Lordship said:

"21. It is not only by reason of the Convention [European Convention on Human Rights] right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be - that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."

12. Mr Difelice contends that on the authorities it is not necessary for the Tribunal to consider whether a fair hearing is possible where the party in default has acted deliberately and contumaciously. He has referred us to Wood P in National Grid Company plc v Virdee [1992] IRLR 555, para 20, to Lindsay P in De Keyser Ltd v Wilson [2001] IRLR 324, paras 24-25, and to Burton P in Bolch, para 55. All three cases were concerned with strike-outs under what is now Rule 18(7)(c) rather than (e).
13. As to the observations of Sedley LJ in Blockbuster, he submits that this is an extreme case on its facts. The only proportionate response by the Tribunal on these facts was a strike-out.
14. Further, the Tribunal considered whether a fair hearing was possible and found (para 7) it was not.
15. As to prejudice, whilst the Claimant suffered prejudice by having the claims struck out, the remedy was in his own hands. He simply had to disclose the recording and the case would proceed on its merits. The Respondent on the other hand was deprived of the opportunity to have their version of the 4 April meeting verified by the best evidence - the recording - due to the intentional breach of Tribunal's order on the part of the Claimant. They were placed at a disadvantage by his deliberate default.

Conclusion

16. Mr Neckles sought to persuade us that the tape recording was of little, if any, relevance. The Respondents had their oral evidence and Mr Kamp's notes of the meeting. It added little.
17. We cannot accept that submission. We acknowledge that strike-out is a draconian order to be deployed only in a clear and obvious case. This is such a case. The effect of the Claimant's deliberate decision to disobey the disclosure order was to prevent the Tribunal from having the best evidence on which to base their findings of fact and the Respondent to establish their factual case. As Mr Difelice submits, it is unlikely that the Claimant would withhold the recording if it advanced his case on the disputed evidence.
18. We also accept the public policy argument advanced by Mr Difelice. Tribunal orders are there to be obeyed; otherwise cases cannot be properly case-managed and fairness achieved between the parties.
19. Far from the overriding objective in Regulation 3 of the 2004 Regulations assisting the Claimant, as Mr Neckles contends, we think that this is one of those exceptional cases where dealing with the case fairly and justly merited the Tribunal making the strike-out order. No lesser sanction would maintain fairness between the parties. A fair hearing was not possible in the circumstances, as we are satisfied the Tribunal found at para 7 of their Reasons. Any prejudice to the Claimant was wholly self-induced.
20. In these circumstances we shall dismiss this appeal.