United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BLITZ (The Appellant in Person)
For the Respondent	MR D HILL-KELLY (Solicitor) Vectone Group Holding Limited Regatta House 58 Marsh Wall London E14 9TP


 


SUMMARY

PRACTICE AND PROCEDURE

Striking out/Dismissal

Employment Judge correct in not making a deposit order even when a continuation of contract order has been made.


 


HIS HONOUR JUDGE ANSELL

1. This has been the hearing of an appeal by Mr Blitz against case management orders following a Case Management Discussion on 1 May 2009, reasons being given on 29 May, together with a refusal to either review those orders, alternatively to order a Pre-Hearing Review, pursuant to a letter that he wrote on 7 May 2009.
2. The background facts are that from 26 August 2008 until 26 September, Mr Blitz was employed as the Respondent's European Financial Controller. On 30 September, he filed his first claim alleging unfair dismissal due to having made protective disclosures contrary to section 103 of the Employment Rights Act 1996, and in due course an application was made for interim relief. That hearing took place on 3 November 2008 when Employment Judge Gilbert granted interim relief, holding as a result that it was likely that in determining the complaint the Tribunal were likely to find that the principal reason for dismissal was indeed the making of protective disclosures. He made an order for continuation of the Appellant's contract pursuant to section 130 of the Employment Rights Act providing that a monthly sum of £3,919.05 should be paid two working days after the month end until settlement or determination of the claim. The Respondents attempted to appeal that decision, but that appeal was rejected both on the sift and also after a rule 3(10) oral hearing.
3. A major complaint by Mr Blitz has been the fact that the employers did not carry on with the interbank transfer arrangements that had been specified in the employment contract but provided him with cheques and as a result cleared funds did not reach his account on the due date. That was one of the matters that he raised in his list of issues for the Case Management Discussion. In due course, he filed a number of other claims at the Tribunal on the grounds of health and safety, unfair dismissal, unlawful deduction of wages, failure to provide written payslips and detriments short of dismissal.
4. The major issues before the Case Management Discussion, therefore, were Mr Blitz's complaint that the continuation of contract order had not been complied with because of late payment. He had an application to amend the identity of Respondents to include other companies within the group. He made an application, certainly on paper, to strike out the responses on the grounds that they were vexatious or had no reasonable prospect of success. In his letter to the Tribunal, he specified in particular that the Respondents had on occasions denied that he was an employee. He made an application for a deposit of £500 pursuant to the rules and also mentioned costs that he wasted in relation to the enforcement of the continuation of contract order. Some of those issues were dealt with in the Case Management Discussion.
5. As far as the payment of his salary was concerned, the Employment Judge, at paragraph 22, noted that Mr Powell, solicitor, then appearing on behalf of the Respondents, informed him that he had given advice to the Respondents to pay by bank transfer, although it was uncertain whether April's pay would be paid in this way. In fact, it was not paid on time and subsequent payments were also late, although I am told that, of late, payments are now up to date.
6. The Employment Judge in his decision firstly expressed the wish that suitable arrangements could be made for payment by BACS and secondly suggested that if there were further delays, it could be listed as an additional issue for determination by the Tribunal. By this, I understand this to mean that if there were further claims arising out of the late payment, for instance costs or interest, that could be an issue before the Tribunal, although the Employment Judge does not specifically mention the issue of costs which the Appellant contends before me was certainly raised.
7. It seems to me clear that in view of the problems over prompt payment that had already been encountered by the Appellant on this issue that the only correct course would have been to, if he had power, amend the order under section 130 Employment Rights Act 1996. There is no consideration by the Employment Judge whether he did or did not have power to do so. Subsection 2 of section 130 provides that where the tribunal makes such an order, "it shall specify in the order the amount which is to be paid by the employer to the employee by way of pay in respect of each normal pay period, or part of any such period, falling between the date of dismissal and the determination or settlement of the complaint."
8. Subsection 3 provides that:

"Subject to the following provisions, the amount so specified shall be that which the employee could reasonably have been expected to earn during that period, or part, and shall be paid (a) In the case of a payment for any such period falling wholly or partly after the making of the order, on the normal pay day for that period, and (b) in the case of a payment for any past period, within such time as may be specified in the order."

9. It seems to me that in specifying a payment, the court does have power to ensure that payment does take place on the normal pay day, as it is defined, particularly as in this case, there was contractual provision for payment by bank transfer, and section 130 is headed "Continuation of Contract of Employment". I see nothing wrong in the provision specifying in particular that payment which has to be made on the second day after the end of the month should be by appropriate bank transfer so that funds are actually in the account by that date. I would invite the parties on that aspect to agree a suitable form of wording to amend the Employment Judge's order.
10. As regards costs and other expenses that may have been incurred as a result of this late payment, all I propose to do is to reinforce what the Employment Judge determined and to specify that the issue of costs and other expenses arising from the late payment of the amounts ordered by the Employment Judge should be an issue before the Tribunal when it hears this case towards the end of October.
11. The next issue is the issue of strikeout. On paper, certainly, the main complaint being made by Mr Blitz was in relation to the Respondent's suggestion that he was not an employee, and in the letter that he wrote to the Tribunal before the Case Management Discussion, he sets out three examples in paragraph 16 of that letter. Before me, he suggests that he had also before the Employment Judge raised other issues in relation to the employer's vexatious conduct. If one looks at paragraph 23 of the case management reasons, one sees that at paragraph 23.3 the Employment Judge did make reference to the fact the Claimant had contended that various of the Respondent's assertions were vexatious and had no reasonable prospect of success.
12. On the specific issue as to whether or not he was an employee, there is a concession recorded at paragraph 8 of the Case Management Discussion that the Respondent accepts that he was an employee, certainly for the purposes of dismissal, but Mr Blitz contends that there were other issues that he raised before the Employment Judge which were not specifically dealt with in the Employment Judge's reasons. This, of course, was not a pre-hearing review and therefore certain powers of strikeout were not available to the Employment Judge, the reason being that under rule 18(6), before a strikeout order can be made under sub-rule 7(b) or (c), notice has to be given in accordance with rule 19.
13. Thus Mr Blitz's complaint is that there has been a failure to order a Pre-Hearing Review and he reinforces that by reference to his letter of 7 May which repeated a request for a Pre-Hearing Review, reinforced by the non-payment or the delayed payment at the beginning of May, and suggests that there could also be a debarring under rule 13 because there had been a non-compliance with the continuation of contract order. He also further submits before me that I should exercise my discretion on these issues if I am satisfied that they were not dealt with appropriately by the Employment Judge.
14. It is not clear from the Case Management Discussion exactly what submissions were made by Mr Blitz in relation to vexatiousness or no reasonable prospects, but I am satisfied that when one looks at his earlier letter and the letter of 7 May that there was a request for a Pre-Hearing Review to consider strikeout, to include strikeout for non-compliance with the continuation of contract order, and such a review was not held.
15. Again, bearing in mind the forthcoming hearing, it seems to me the best course is that I invite the Judge at the beginning of that hearing to consider any application for strikeout based on rule 18 and rule 13. I would also invite the Employment Judge to consider the outstanding issue in relation to the joinder of any other Respondents.
16. Finally, the issue of a deposit order. The provisions under rule 20 provide that an Employment Judge at a Pre-Hearing Review, if he considers that the contentions put forward by any party "have little prospect of success", may make an order against that party requiring that party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter.
17. The principal argument advanced it appears by Mr Blitz in relation to the making of a deposit flowed from the fact that a continuation of contract order was made, and he argued that the fact that that order was made under section 129, when the Employment Judge had determined that it was likely that the complaint would effectively succeed, must mean that as a result the Respondent had little reasonable prospect of success. He reinforces that by arguing that on the authorities the word "likely" is not just 51 per cent probability but something higher than that. The main authority that he referred to was Taplin v C Shippam Ltd [1978] IRLR 450, a decision of this court, Slynn J presiding. At paragraphs 23-24, he said this:

"23. We think that the right approach is expressed in a colloquial phrase suggested by Mr. White. The Tribunal should ask itself whether the applicant has established that he has a "pretty good" chance of succeeding in the final application to the Tribunal.

24. Although the Chairman of the Tribunal expressed the burden of proof differently from the way which we have done we do not consider that there is any real difference of emphasis. He thought that 'likely' meant more than 'probable' and he regarded 'probable' as being '51 % or more'."

18. That passage was cited with approval in BCCI v Ali (No 2) (Ch.D) [2000] ICR 1354 at first instance by Lightman J where, at paragraph 54(4), he said this:

"The term 'likely' requires a higher degree of certainty than a reasonable prospect or indeed a 51% probability ('not unlikely') and reflects what might colloquially be termed 'a pretty good chance' [citing Taplin v Shippam]."

19. The authors of Harvey suggest that the bar has been raised too high. They refer to a passage in the judgment of Burton J when he was President of this court in Dowling v ME Ilic Haulage [2004] ICR 1176 where, in referring to previous similar provisions under the Trade Union and Labour Relations Act 1992, he referred to a Chairman saying this:

"Her reasoning was that the Applicant's claim under s152 had a better than 50% chance of success."

There was no argument in that case as to what "likely" meant. The highest that can be said is that Burton J did not in any way disapprove of what the Chairman had said.

20. The guiding authority, therefore, still seems to be Slynn J who places the bar, as I have said, higher than simply 51 per cent. Certainly if this had been a single-claim case, one can see that there may well have been strong arguments against the Employment Judge's decision not to order a deposit. He dealt with it at paragraph 25 and said this:

"I have decided not to grant a deposit order. I accept that there is a different test as to the making of a deposit order. The fact of success in an Interim Relief Application does not mean that the Respondent necessarily has little reasonable prospects of success in defending a substantive claim. The Claimant's cases involve various assessment of what facts need to be found and I am not convinced that, in the absence of hearing such evidence, I could make an assessment that the Respondent's case has little prospect of success - although I am also mindful of the Tribunal's assessment of the case at the Pre-Hearing Review. I note, however, that the Claimant has stated that he is likely to apply for an Order for Costs or Preparation Time Order, against the Respondent."

21. Mr Blitz criticises that passage and suggests that in reality, if one adopts Slynn J's test and the chances of success are at that higher level that he suggests has to be reached, it must follow that there is little prospect of success in defending the claim but the answer, it seems to me, can be seen from the fact that the Respondents had submitted before the Employment Judge, and it is referred to at paragraph 24(3), that there were, of course, other claims now in front of him which had not been the subject in any way of any determination on an interim basis, and clearly the Employment Judge was referring to those other claims where he spoke about various assessments of what facts needed to be found. If 'likely' does mean better than 50%, it does not follow in my view that there is 'likely prospect of success' in defending the claim.
22. Therefore, even if, on the narrow issue in relation to this one claim, it can be argued that the finding in the employee's favour on the interim relief claim points very strongly to a lack of any real chance of successfully defending that claim there are four or five other claims which are included in the matters for the Tribunal to be determined, and therefore it seems to me that in the round the Employment Judge's discretion was exercised correctly.
23. I should add for myself that it seems to me that bearing in mind that a substantial sum had been ordered to be paid each month, the addition of a further £500 might also be regarded as somewhat superfluous. Mr Blitz argues that the making of that order would send out signals to the Respondents in relation to costs, but it seems to me that the making of the interim relief order and the success that he had there should have sent out enough signals in any event.
24. So, on the one substantive issue that I am actually able to deal with, the appeal on that issue fails.