United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR RICHARD O'DAIR (of Counsel) Instructed by: Messrs SAS Daniels Solicitors 30 Greek Street Stockport SK3 8AD


 


SUMMARY

PRACTICE AND PROCEDURE: Striking-out/dismissal

Case in which the Employment Tribunal struck out the case on the ground of the way in which the case was conducted under Rule 18(7)(c). The Employment Tribunal reached that decision although there was a stay on proceedings until costs in a previous action had been paid. Following the case of Bennett v London Borough of Southwark [2001] IRLR 407 the Employment Appeal Tribunal refused to activate the stay but remitted the case to a different Chairman to reconsider the decision whether the case shall be struck out and whether the stay should be activated.

HIS HONOUR JUDGE PUGSLEY

1. This is a case in which the Appellant has not appeared, but has himself sent various submissions. This case initially came before me on 7 August. The history of the matter is that the Appellant had sought to appeal an order of the Tribunal striking his case out. That led to an appeal which was rejected, but HHJ Serota QC, at a hearing before this Tribunal on 14 May, ruled that there was an arguable issue that could come before the full tribunal.
2. The history of the matter was recited in that judgment and it is retold in such clarity that I gratefully adopt the summary therein set out. An order was made by the Employment Tribunal in Watford on 2 April by an Employment Judge, Mr Mahoney, who struck out the case under Rule 18(7)(c) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 because the complainant was said to have conducted the proceedings scandalously or vexatiously. As Judge Serota said in paragraphs 4 and 5 of that judgment:

"4. Some time in 2005 the Claimant issued proceedings against Hilton Plc, which I understand to be the predecessor in title, so as to speak, of the Respondent, Hilton International, in relation to discrimination in failing to employ him at the Hilton Elevator Programme; a programme, I assume, whereby people were selected for employment within the Hilton Group. Those proceedings were unsuccessful and during the course of those proceedings he was ordered to pay the sum of £1,294 in costs to Hilton, which he has not paid.

5. The Claimant lodged his claim in the current proceedings for victimisation on the grounds of his religion and belief. The Respondents appear to be the second Respondent's Legal Counsel, a Mr Adelman, who, as I understand it, is based in the United States, and also Hilton International UK. …"

3. Mr Anderson, it seems, says that Mr Adelman was not intended to be a respondent but he is referred to in the ET1 as being a relevant legal adviser and it does appear that he was joined as a respondent. Mr Anderson's complaints of victimisation include the fact that he claimed that he was told he would never be welcome as an employee at any Hilton Hotel, so he complained of what he would consider to be abusive behaviour.
4. The response of the Respondents was to seek a stay of the proceedings, pending payment of the sum of £1,294. On 26 February 2007 the proceedings were stayed, pending discharge of the court order. Consequent upon this the Claimant, on 22 February, emailed the Respondent's solicitors in highly offensive terms. By a letter dated 27 February 2007, sent by fax to the Tribunal, the Respondent's solicitor enclosed two copies of two emails, both dated 22 February 2007. The first email was to Maria Goddard of SAS Daniels, timed at 1308 hours, which reads as follows:

"What you say is of no significance whatsoever. The battle will now be fought outside the courts.

Do not correspond with us any more and do not send any correspondence to this address on any matter whatsoever. A man of mediocre disposition like yourself can only serve the companies in question for one purpose.

The details of our conversations on the 9 January have been registered.

A tape recording will be provided as evidence of the exact contents to investigative agencies. You should not think that such outrages and abusive language will go unpunished. You deserve to get your just desserts. You will be reported to the professional society in the UK and you will be summoned for disciplinary procedures. SAS Daniels will facie (sic) victimization charges for the contents and tone of your unpleasant letter of 2nd January. Under Finnish law you have committed a criminal offence known as 'kunnianloukkaus' over the phone e.g. insulting a person's dignity which is punishable by a fine and compensation to the victim. We are now investigating the main English Law books on Criminal Law to see whether to press charges against you in England for similar offences under UK law.

Have a very pleasant day indeed!"

5. The second email, timed at 1423 hours to the first Respondent with the subject heading, "We have not forgotten you, or anyone like you" reads as follows:

"Tell me something about yourself Mr Adelman. What kind of a Jew are you?"

6. On 26 February he sent further emails to a Dr Adrian Atkinson, Chairman of Human Factors International. Dr Atkinson is not a respondent to the claim but is the chairman of the company which acts as external contractors engaged by Hilton to write the online recruitment programme. The first email, timed at 1117 hours, reads as follows:

"To Adrian Atkinson

Subject: The promise you failed to keep:

This is what was said on the Hilton Elevator website: 'Hilton International is an equal opportunities employer. We aim to ensure no applicant or employee receives less favourable treatment on the basis of race, colour, nationality, religion, ethnic, or national group, age, gender, or disability.'

YOU'VE BROKEN YOUR PROMISE MR ATKINSON. YOU NOW RISK SEVERE SANCTIONS AS A RESULT OF YOUR ACTIONS."

7. The second email, timed at 1118 hours, reads as follows:

"Subject: What is happening …

The upcoming European Year of Equal Opportunities for All will be celebrated across the European Union in 2007 to draw the attention of European countries to the problems created by discrimination and the opportunities afforded by diversity. The Year will provide equal opportunities and raise awareness about the rights of everyone to equal treatment, and about the benefits of diversity. The celebration will be marked by hundreds of different activities staged throughout the European Union with all 27 EU member States taking part. The main aim is to reach out to the general public and therefore most of the Year's activities will be held on a local, regional, or national level. This will be supported and complemented by several pan European activities such as a campaign on European anti discrimination policies and legislation or the presentation of the results of a Eurobarometer survey about European citizens' attitudes towards and knowledge [of] discrimination and inequality issues. The European Year of Equal Opportunities for All will be formally launched with a big opening conference in Berlin on from January 30th – 31^st, chaired by the German Presidency."

8. Judge Serota at paragraphs 9 – 11 of his judgment said:

"9. These emails were made available to the Employment Tribunal by the Respondent's solicitor. On 5 March the Employment Tribunal wrote to the Claimant, having considered the emails saying it proposed to strike out its claim under Rule 18(7)(c) but giving the Claimant 14 days to respond.

10. The Claimant did respond; and the effect of his response was that the correspondence bore no relation to the case. He attempted to justify the comments that he had made to the first Respondent and maintained it was nothing to do with his conduct of the case.

11. The Employment Tribunal, having considered the matters, concluded that the comment, "What kind of Jew are you?" was a deliberately gratuitous and offensive remark made by an individual who was clearly intelligent. Further, the deliberate involvement in the case of an individual whose company works closely with the second Respondent by the Claimant was considered by the Tribunal as a naked attempt by the Claimant to put improper pressure on the Respondents to settle the case. The Tribunal considered that the manner in which the Claimant had conducted the case was scandalous and/or vexatious and it therefore concluded it would make the order for striking out the claim."

9. Judge Serota continues at paragraph 12:

"The Notice of Appeal in this case is somewhat unhelpful. However, it seems to me that the Claimant has an arguable case for saying that the Employment Tribunal was wrong to strike out its claim. As I understand the law, as set out in Blockbuster Entertainment Limited v James [2006] IRLR 630, before a claim can be struck out under Rule 18(7)(c) the conduct has either to take the form of a deliberate and persistent disregard of required procedural steps or that it has made a fair trial impossible. It is then necessary for the Tribunal to go on to consider whether striking out is a proportionate response to the misconduct in question."

10. The learned judge then went on in these terms:

"13. It seems to me at least arguable that what Mr Anderson has done, reprehensible as it appears to be, has not made a fair trial of his claim impossible, and indeed the Employment Tribunal does not appear to have approached the case on that basis."

11. It seems right to say that the Appellant has not shirked from continuing to make somewhat tendentious remarks. In his submissions on 7 August he says this on page 73:

"We also assume by the name of the Chairman, Mr Mahoney that he might be Irish. If this is the case, we would point out that there is no historical religious enmity, political infighting, or civil war raging between Jews. In northern Ireland it may well be a grave insult or even a religious slur for a Protestant to question another Protestant or a Catholic. Jews have been questioning one another since time immemorial as a matter of philosophical enquiry and tradition, so we conclude the strike-out orders by a Christian judge on the basis of that correspondent is also religiously biased on these grounds."

12. When the matter came before me in August I was met with an argument by Mr O'Dair, who has presented this case with scrupulous fairness, that I should before considering the merits activate the order and stay the proceedings on the basis that the Appellant, Mr Anderson, had not complied with the order of costs, and therefore I should exercise my power, pursuant to Section 30(3) of the Employment Tribunals Act 1996, to stay these proceedings pending payment of the costs that were ordered. I felt that it was only appropriate for me at least to alert Mr Anderson as to that and to seek his submission on that matter, in writing, or by attendance if he so wishes. I adjourned the case to today, 17 November, in order that that should occur.
13. I have to say, what I thought was a fair procedure invoked a somewhat vitriolic response by the Claimant, now Appellant, even though that order was made to give him an opportunity to be heard. It is right to say I dismissed his appeal against an order made by the Registrar.
14. Mr Anderson is clearly a person who feels very strongly and I have considered all the matters that he has put in respect of this matter. I have also considered some issues which he has not and indeed it is notable that Judge Serota did not have the opportunity of any help from Mr Anderson other than by way of written submissions since Mr Anderson has not attended.
15. I have to say that I have some concerns about ordering a stay. In the case of Bennett v London Borough of Southwark [2001] IRLR 407 the Court of Appeal overruled this Tribunal when it had itself exercised the power of staying procedures, saying that they did not consider it appropriate for this Tribunal to have authority to use its power under section 35(1) of the Employment Tribunals Act. It said that the Employment Appeal Tribunal can only use its power to substitute its own decision where it is incontestably a decision which properly directed in law the Employment Tribunal would have reached. This principle is not confined to issues such as the fairness of a decision it also embraces cases where the EAT is as well-placed as a first instance tribunal to evaluate the facts that have been found.
16. In the present case the striking out was not a foregone conclusion. It was not open to the EAT to substitute its own decision for that of the Tribunal. What concerns me about exercising my power is this: I simply do not know why the Tribunal, having noted the stay, did not itself exercise the stay it had itself imposed. It is true that the Employment Tribunal did not consider the case of Blockbuster, nor did it consider the case of Bennett v London Borough of Southwark.
17. Mr O'Dair has argued very persuasively that there are cases in which the issue of a fair trial does not necessarily form the central focus of the tribunal's decision. He has pointed me to passages in various authorities. In particular, in Kaiser v Wilson [2000] IRLR 324 Mr Justice Lindsay pointed out that there was a distinction to be drawn in cases in which there was deliberate failure to comply with a court order (see para. 25).
18. Further, in a case of Mr Justice Burton, Bolch v Chipman [2004] IRLR 140, a somewhat similar decision was reached. I am concerned at making an order staying the proceedings when the Tribunal did not itself make such an order. I am also extremely concerned that I just do not know enough of the background of the earlier case to know the extent to which this is a matter as to how it came that the Tribunal did not consider making an order staying the proceedings.
19. I have come to the view that it would be wrong for me to make an order staying the proceedings as part of the jurisdiction I have under Section 30(3) of the Employment Tribunals Act 1996. I appreciate the facts are rather different than Bennett; nevertheless, I feel it would be outside the ambit of the decision of Bennett for me to make such an order. I do not consider that I am in such a good position as the tribunal of the first instance. However, in remitting this case back to the Employment Tribunal to consider the issue, I do counsel that they have regard to the decision of Blockbuster and also Bennett, but also to point out that there really are two issues here. At the moment no order has been made lifting the stay that was imposed on these proceedings unless costs were paid. That is a matter which I think the tribunal should consider. In particular the tribunal should consider the matter afresh as to whether or not that stay is to be operative. Secondly, that stay is a matter that can, in my view, be considered as part of the decision to strike out as to whether or not the conduct of the proceedings is scandalous and unreasonable and vexatious. The Employment Tribunal should have regard to whether a fair trial is still possible.
20. I think that this is a case where it might be wiser to go to another tribunal. I note that allegations of religious bias seem to have been made and that certainly would not be a ground in itself for suggesting it go to a different chairman. On the other hand, I think that there is no particular advantage to be gained by going back to the same tribunal and if the whole matter is to be heard afresh there is the argument, given the lapse of time and the desire to make sure that everything is seen to be fair, that the matter is heard totally afresh by another tribunal. The appeal is allowed to this extent.