United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/1807/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 June 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR C TAYLOR APPELLANT

HP ENTERPRISE SERVICES UK LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Judge did not err in striking out the Claimant’s case which had not been actively pursued over six years, correctly applying Peixoto and distinguishing Abegaze.

HIS HONOUR JUDGE McMULLEN QC

1.             This appeal is about Employment Tribunal case management procedures in striking out a claim which was not being actively pursued.  I will refer to the parties as the Claimant and the Respondent.

2.             The Claimant has applied for an adjournment of today’s hearing by a communication sent yesterday (14 June 2011).  He says that it is necessary for further clarification of the Practice Direction, and this can only be dealt with by another scheduled hearing of this application; and he requests further details from the EAT in respect of its various communications setting up this hearing.  He says, “I am in poor health, and these continued difficulties are worsening matters and causing distress.” The circumstances are no further elaborated than that, and, as will become clear when I give my opinion (para. 13 below) I dismiss the application for an adjournment today.

3.             This is an appeal by the Claimant in those proceedings against a Judgment of Employment Judge Warren, sitting alone at Shrewsbury on 10 June 2010 at a PHR, registered with Reasons in 25 August 2010.  The Claimant was in person; the Respondent represented by Miss Paula Rome, a solicitor who attends today, although of course she plays no active role in the proceedings.  The Claimant raises a number of claims in relation to his redundancy on 31 December 2005.  The Respondent denies them, together with succeeding claims of disability and race discrimination and a claim for unlawful deductions.  The issue presented to the Employment Judge was whether the claim should be struck out because the Claimant has not actively pursued the matter.  This is in accordance with the overriding objective in dealing with cases justly, saving expense and so on, the striking out of the claim under rule 18(7)(d) when it is not being actively pursued, and 18(7)(f), perhaps tautologously, when it considers that it is no longer possible to have a fair hearing.  The Employment Judge struck out the claim. 

4.             The Claimant appealed, and directions were given on the sift of his Notice of Appeal.  My approach to a hearing under rule 3 is set out in Haritaki v SEEDA [2008] IRLR 945 at paragraphs 1‑13, which should be read with my Judgment.  That approach has been approved in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.  On the sift HHJ Serota QC formed the following opinion:

“Employment Judge Warren has given a full, detailed and comprehensive judgement in which he [sic] has detailed the lamentable history of this case.  He [sic] directed himself correctly as to the law and recognised that the draconian order of a strike out was very much a last resort.  However he [sic] concluded, as he [sic] was fully entitled to do on the history of the case to conclude that, a fair trial was no longer possible.  The claim is already almost 5 years old and there is no prospect of it being ready for trial in the foreseeable future.

The Notice of Appeal discloses no reasonable grounds for bringing the appeal.”

5.             The Claimant exercised his right on expressing dissatisfaction with that opinion to have a hearing. I have considered the correspondence setting up this hearing and, although the Claimant raises what he says are points of clarification, there is no ambiguity about what is to happen here.  The Claimant has the Practice Direction; he is able to come and make all the arguments he wishes, and I make my own decision.

6.             The adjectival provisions that I have cited above are the case management powers of an Employment Judge under rule 18, including striking out and ensuring that there is to be a fair hearing.

7.             The Claimant was employed by the Respondent between 2001 and 2005, when he was made redundant.  He makes a number of claims.  The Employment Judge set out the procedural history which, in short, involves very substantial correspondence.  There are 211 pieces; there have been 4 case management discussions, and none has moved the case forward.  The claims were insufficiently particularised with no proper disclosure; the Claimant has not produced a witness statement; no documents have been agreed; the issues were not identified; many of the witnesses have left the Respondent’s business some time ago.  The incidents of discrimination relied on date from 2003, and some go back to 2001.

8.             The Judge held that most of the delay was caused by the Claimant’s failure to deal with the case.  He had not obtained representation; he is suffering from depression, but he does not use medication, preferring alternative treatments.  The Judge outlined the very substantial number of interventions by the Tribunal to try and get the case on the road.  The Judge heard the submissions of the Claimant that he had tried to co‑operate and hoped that he would be well enough to proceed, but he was still unwell and not in a position to agree to his case being heard.  The Judge noted that he was able to present an eloquent and focussed argument and, when questioned about his condition, he confirmed he was taking neither medication nor counselling, but acknowledged that this was a distressing process.

9.             The Respondent contended before the Judge that the defects in the procedure that I have mentioned above were all part of the problem, and there was no medical update on the Claimant’s condition; witnesses had left, and so on.  The Judge concluded that the Claimant had not been actively pursuing his case:

“28. In reaching my decision I have taken account of all the facts and circumstances, including the fact that strike out is the most serious of sanctions, as set out in the case of Rolls Royce PLC v Riddle [2008] IRLR 873.

I have reminded myself that this case is nowhere near ready for hearing, and that the claimant is unable to assist with when he may be ready to move forward.  The respondent can do nothing to assist progress, other than to sit and wait.  In that time witnesses’ memories are fading, the respondent has been the subject of major corporate change, including massive redundancies and major office moves.  Witnesses have left their organisation and not yet been traced.

I have considered the situation in the light of the case of Peixoto v British Telecommunications Limited PLC EAT/0222/07. This case is very similar; I simply cannot see any date in the immediate future when this case could be heard. Further, there is no obvious other action that can be taken by either party, or the tribunal to expedite progress towards a final hearing.

29. Applying the Peixoto case to the facts of this case I have accordingly, and with a degree of regret, concluded that a fair trial will not be possible.  I therefore strike out the claim.

30. In reaching this conclusion I have taken account of the case of Abegaze v Shrewsbury College of Arts and Technology [2010] IRLR 238.  I find this did not assist as there had already been a full hearing in Mr Abegaze’s case on liability.  The key witnesses had been heard, and only the issue of remedy remained.  Of course at that stage all parties would have the benefit of the initial fact finding and conclusions reached by the tribunal who heard the evidence, for which I assume there was no lengthy delay.  The real issue in this case relates to the ability of the respondent to respond to the claim.  At every stage of this case steps have been taken to attempt to progress the case without the need to take the ultimate sanction to strike out.  None however have been successful, and there is no reason to believe any would be in the future.”

The Claimant’s case

10.         The Claimant’s arguments do not address the central issue of the failure actively to pursue the case and the consequence, which is there cannot be a fair hearing.  The Claimant continues to argue the merits of his employment situation, but this is now a procedural matter on appeal as to whether the claims should have been struck out.  I agree with HHJ Serota that Employment Judge Warren fully set out the circumstances and showed which directions she was taking from the authorities, and she was correct to refuse to review the decision which she had made.  The Judge directed herself by reference to Peixoto which I decided on appeal, and, in the absence an argument by the Claimant that that was wrongly decided, I suffer the human vice of agreeing with what I said earlier.  I am capable of being persuaded but, since he is not here and he does not mention this authority, there is no reason why this should not have been relied on by the Employment Judge.

11.         I also decided Abegaze, on appeal from Judge Thompson in Shrewsbury, and the Judge was right there to draw attention to it because Abegaze had been overturned by the Court of Appeal, it being decided that both the Judge and I were wrong in his ordering and my upholding the striking out of Dr Abegaze’s case on the grounds that it had not been actively pursued.  The Court of Appeal directed that the appropriate step would have been to give Dr Abegaze an unless order.  There are two answers to that: first, the Judge’s answer, which is that the case deals with a situation which has already reached a conclusion in favour of a Claimant.  Dr Abegaze, it is sometimes forgotten, was successful in this amongst the scores of claims that he has brought throughout our system, but in this case he was successful and was awaiting a remedy.  He has still not had a remedy, yet his cases continue to come to the EAT.  The second reason is that the Judge here has applied the Judgment in Peixoto, which is directly on point, and no fault can be found in the exercise of discretion.

12.         The Employment Judge recognised it was a draconic measure.  She was addressed in relation to the appropriate authorities by Miss Rome, and she came to a conclusion which was open to her; and I see no error of law.

13.         The application today for an adjournment is the very latest dragging of heels by the Claimant.  It is symptomatic of the steps which the Judge has found and which I have upheld of the Claimant’s approach to the case and, having an eye on what the substance was of this case, provisionally, and knowing that the Claimant had not turned up, I made the decision which I did to go ahead anyway.