United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0323/15/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 12 April 2016

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

(SITTING ALONE)

MR S MANUEL                                                                                                       APPELLANT

ELDON TECHNOLOGY LTD                                                                            RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE

Procedure: the Employment Tribunal struck out a claim after the Claimant had asked it to have a hearing.  It should not have done so, since Rule 37(2) requires there to be a hearing if a party in danger of being struck out asks for one.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.                  This is an appeal against an Order made by Employment Judge Brain at Leeds on 9 October 2014, when he struck out complaints of discrimination that the Claimant had made against his former employer.  The appeal is not opposed by the Respondent.  For that reason, the Respondent is not present in court but intends no discourtesy to it.  The only question - assuming that I am in favour of allowing the appeal, as I am, and I shall say why in a moment - which remains to be decided is what the consequence of allowing the appeal will be.  First, though, I must say why, in my view, the appeal should be allowed.

2.                  The background facts are these.  The Claimant was a software engineer employed for some five years before 30 April 2013 when he was dismissed.  The reason given was redundancy.  However, he did not accept that that was the true reason.  During the nine months before his dismissal he had not been at work because he suffered from depression, possibly related to or combined with eating disorders.  At the end of that period, however, his case is that he had been medically advised and his employer had been told that he would be fit to return to work provided first that his grievances against his employer had been addressed.  He argued he had made protected disclosures about some of the practices adopted at the workplace and the real reason for his dismissal was not redundancy but was the reaction by his employer to his making those disclosures.  In addition, he made allegations that he had been discriminated against on the grounds of race, disability, religion and belief and that he had been victimised for those reasons.

3.                  There were a number of other claims, which I need not deal with here, which simply could not be brought before an Employment Tribunal because the Employment Tribunal has no jurisdiction to consider them.  They were claims of personal injury as such, a failure to comply with the ACAS Code of Practice as a head of action, human rights violations, and injury to feelings that were entirely separate from any complaint about discrimination.  These, however, show that he was concerned about these matters.  He represented himself, and it is plain that he is not a lawyer.

4.                  The Tribunal made Orders on 26 February 2014 and again on 23 June 2014 that the Claimant should provide Further Particulars of aspects of his discrimination claim.  The Judge identified those in a note made on 26 February, and they appear at paragraphs 2.6 to 2.10 of the Order he then made.  On 29 July an extension of time to provide the documents and Particulars was allowed, but the consequence of the failure of the Claimant to provide the Further Particulars that had been ordered was that on 19 August 2014 the Judge wrote via the Tribunal office to the Claimant requiring him to show why his claim should not be struck out for what the Judge said was a failure to comply with the Orders of the Tribunal.  The Claimant considers that he had in reality complied.  The Judge, however, took the view that in the revised Schedule that came to him on 29 August 2014 what the Claimant was saying was, again, unintelligible.

5.                  In a letter emailed to the Tribunal of 10 September the Claimant said that (all verbatim):

“b) if the judge believes that the claims reasonably qualifies to be strikeout (based on any actual non-compliance to the order made on 23/08/2014 (that my explanations in compliance with the show cause ordered are not sensible enough or not reasonable enough) or on any alleged non-compliance as the Respondent has alleged on 18th), the claims should not be struck out with out holding a case management hearing on the same.”

6.                  It was pointed out at a Rule 3(10) Hearing of 18 November 2015 that those words are capable of being read as a request by the Claimant that there should be a hearing to determine whether or not he could show cause why his claim should not be struck out.  The Claimant’s case is that he had a good reason for asking for a hearing.  That was that on an earlier occasion he had found it easier to explain orally to the Judge what he meant by the Particulars of victimisation given so that of a number of complaints he had made, 11 of them survived the view of the Judge which was that he had originally been minded to think they were unintelligible.

7.                  The Rule as to strike out is Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  It permits a Judge by Rule 37(1) to strike out a claim for non-compliance with any of the Rules or with an Order of the Tribunal (that is, Rule 37(1)(c)) for the reason that has not been actively pursued (Rule 37(1)(d)) or that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim (Rule 37(1)(e)).  However, Rule 37(2) provides:

“(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

8.                  The email letter, if it was a request for a hearing and assuming that request had not been overtaken by any subsequent correspondence, therefore entitled the Claimant to argue his case before it could be struck out, a view from which the Respondent, having considered the point, is not prepared to differ and has said so in writing in its response.  The email letter did ask, albeit in slightly unclear language, that there should be a hearing.  The Claimant therefore had asked under Rule 37(2) for a hearing, there was none, and the Judge therefore, whatever the merits may have been of the decision he made on the information before him, was simply not entitled to strike out the claim when he did.  The appeal therefore succeeds.

Consequence

9.                  The Claimant asks that the matter be remitted to a different Judge.  The Respondent does not oppose that application.  Since the Judge has indicated his view by making the initial Order of strike out on the basis of the information before him, I consider it appropriate that the matter should return to a different Judge as the Claimant asks.

The Purpose of the Remitted Hearing

10.              The Orders that were made by Employment Judge Brain, apart from the Order striking out the claim, remain in force.  It is open, therefore, to the Respondent to seek that there be a hearing in order to determine whether the claims of discrimination should be struck out in respect of his failure to comply with the Tribunal’s previous Orders, in particular the Order dated 23 June 2014.  The Claimant must have a proper opportunity of attending such a hearing.  He took some time today to tell me of aspects of what had happened to him.  Amongst what he said was to indicate that he would ask the Tribunal to make a restricted reporting Order.  It seems to me that is a matter entirely for the Tribunal on the basis of whatever it is that is said to the Judge at the time.  Accordingly, I remit the case to the Leeds Employment Tribunal to be heard by a Judge other than Employment Judge Brain for that Tribunal to list the case for a hearing to determine whether the Claimant’s claims of discrimination should be struck out or not by reason of his failure to comply with the Orders I have identified.

11.              I should add this.  It will be to the Claimant’s advantage, I have little doubt, if he makes as clear as he can what precisely he is saying by way of those Further Particulars, even if he does so at this late stage.  It would be much to his advantage if he obtained some help to enable him to do so, but this can only be a suggestion, and I understand from what he has told me that he may lack the means to instruct a solicitor to deal with his case for him.

12.              For those reasons, with that consequence and with those comments, this appeal therefore is allowed.