Gwent v West Glamorgan County Council & Ors [1994] UKEAT 1085_93_2211

EAT
Gwent v West Glamorgan County Council & Ors
[1994] UKEAT 1085_93_2211 · 1994-11-22

JUDGE HULL QC:

This is the Decision of us all. Mrs Gwent is a lady who was employed as an assistant teacher of Welsh, at Pentrehafod School at Swansea. She was employed by the governing body or the local Education Authority. It does not appear from the papers quite clear which actually employed her, but of course she was responsible in a sense to both.She was first employed in September 1990. She suffered serious ill-health during the period of her employment. On the 2nd May 1992 she was dismissed. According to the school, she had lost 286 working days in that short period, in other words, more than half. Most unhappily, her dismissal was immediately before she went into hospital for a very serious operation, and she makes complaints about that.She complained to the Industrial Tribunal on the 28th July 1992 of unfair dismissal caused by sex discrimination and victimisation. IT1, her originating application, starts at page 44 and goes on for 20 pages. She referred to:

"The establishment cover-up with regard to our youngest child."

We have been told, in reading the papers, a great deal about her youngest child, who apparently himself has been afflicted in various ways. She alleges he has been ill-treated, very badly treated and that is part of a conspiracy. We are not going to go into the details for reasons which will, I think, become obvious.The local Education Authority, acting in effect for all three Respondents, put in an answer, and in due course after there had been a request for particulars, on the 27th April 1993 the Industrial Tribunal made an order for Further and Better Particulars to be given by 10th May 1993. Those particulars related to the very numerous allegations which were made in the originating Application.Mrs Gwent applied to set aside the order. That was unsuccessful on the 12th May 1993. On the 18th June, the Office of Tribunals wrote warning that the Application would be struck out if the particulars were not given. There were some further and better particulars which are at pages 83 and 84 of our bundle. But in respect of many of the items which had been ordered, Mrs Gwent said that she had been advised that she need not deal with those matters at this stage.On the 26th August, she was ordered to show cause why her originating Application should not be struck out. There was apparently no reply to that. Then on the 9th September there was an order to show cause on or before the 15th and then there was a notification that on the 15th September, the originating Application had been struck out, as Mrs Gwent had been warned that it might be, for non-compliance with the Tribunal's order.There was a Notice of Appeal, that was on the 27th October 1993, against that. That came before this Tribunal. Mrs Gwent was absent then. I should therefore refer to what was said and decided by this Employment Appeal Tribunal, on the 20th July. The Chairman of that division of the Employment Appeal Tribunal was Mr Justice Morison, who sat with Mr Thomas and Mrs Turner as the Industrial Members. I propose to read what Mr Justice Morison said. He said:
"It is now 2.20 pm. As this case was listed for 2.00 pm we should proceed to deal with it in the absence of Mrs Gwent. The circumstances are that this is an appeal brought by her against a decision of an Industrial Tribunal relating to an interlocutory matter. This matter has been put back on two previous occasions and on the last occasion when it was adjourned she was specifically informed of today's date and told that this Tribunal would not be prepared to consider a further adjournment. She is not here to pursue her appeal and we propose to deal with it in her absence. This of course is without prejudice to her right under Rule 33 of the Employment Appeal Tribunal Rules to apply, if she is so minded, within 14 days of today for a review of this decision and no doubt if she is able to provide a reasonable and satisfactory explanation for her absence, that application will be acceded to.
This is an appeal against the decision of an Industrial Tribunal on the 15 September 1993 in which in the exercise of the Chairman's discretion under Rule 4 sub-Rule 4 of the Industrial Tribunals Rules of Procedure Regulations, she ordered that the whole of the originating application be dismissed. Essentially the reason why it was being dismissed was because there had been a failure by the Applicant, Mrs Gwent, to supply the Further and Better Particulars of her complaint which were ordered by the Industrial Tribunal.The background facts appear to be as follows. Mrs Gwent became employed at Pentrehafod School either by the Governors of the School, or by the Local Education Authority, that is the West Glamorgan County Council, as from the 1 September 1990. That employment came to an end as at the 2 May 1992 by reason of her dismissal. Accordingly, she presented a complaint to an Industrial Tribunal complaining of "unfair dismissal through sexual discrimination and victimisation as part of the establishment cover up with regard to our youngest child."Her Industrial Tribunal Form 1 was accompanied by an attached letter running to 19 pages. In a nutshell, as we understand it, Mrs Gwent says that she has had a lot of time off, initially through pressures at home as a result of the youngest of her three children leaving, at about the age of 14, his father's public school where the boy had been, and of her discovery that the boy had become disturbed due to what she believes to have been sexual abuse and beatings at that school. His emotional difficulties, whatever their origin, understandably perhaps put great pressure on the family, compounded by what happened when thereafter he went to a particular unit where he was given certain drugs.As a result she was unable to be at work, according to her application, during these difficult times, and effectively did not attend work at all from the summer term of 1991. She was able to cope better, according to her Industrial Tribunal Form 1 by about mid July of 1991. But then shortly before she expected to be able to return to school after the mid term break in the Michaelmas term, she discovered that she needed a hysterectomy and from that time (she discovered this in September) she did not return until her dismissal just two days before she was due to have her operation.On an enquiry by her employers before the dismissal, she told them that she would not be fit to return to work until the beginning of the Michaelmas term in 1992. Accordingly, it looks as thought since her appointment she has had rather more time off work than she has had at work. The employers applied for Further and Better Particulars of the allegations contained in her IT1, that is in the letter attached to it, because they felt unable to prepare themselves for the hearing until after those particulars had been provided. The particulars are set out in a letter dated the 27 April 1993 from the Industrial Tribunal containing the Order which was made under Rule 4(1)(a)(i) of the Industrial Tribunal Rules of Procedure. They are to be found at pages 71 and 72 of our file of papers.Subsequent to the making of that Order she was asked by the Industrial Tribunal on the 18 June 1993 whether she was intending to supply those particulars. It was pointed out to her that she had already failed to comply with the Order for those particulars because the particulars had been ordered to be supplied by the 10 May. The letter to her continues:
"As stated on the Order failure to comply may result in your application being dismissed before or at the hearing. Please will you let us know whether or not you have complied with the Order. If you have not you will be required to show cause why the Originating Application should not be struck out."
Those particulars were not supplied but eventually, and we see it at pages 83 and 84 of our file, she purported to comply with the Order that had been made against her. That purported compliance was manifestly not a compliance with the Order as it had been made and the Industrial Tribunal wrote again to her on the 26 August 1993 saying:
"The chairman has instructed me to inform you that it appears you have failed to comply with paragraphs 3,5,6,7,10,11,12 and 13 of the order of 27 April 1993. Without the information which is the subject of the Order the respondents are unable to prepare their case in response to your allegation. This would result in severe injustice to the respondents should the case be allowed to proceed."
Please will you show good cause why your Originating Application should not be struck out."On the 9 September the Tribunal wrote again to her saying:
"We have not received any reply to our letter of 26 August 1993 asking you to show good cause why your originating application should not be struck out. Please reply by or before 15 September 1993. The Chairman will take a decision on the matter on that date."
The response of Mrs Gwent was to refer to that letter as a "bullying letter" in a reply which she sent to the Regional Office of the Industrial Tribunals on the 13 September 1993. She also made a complaint to the Secretary of the Tribunals at Ebury Bridge Road about the conduct of the Industrial Tribunal Chairman. The latter matter was dealt with by the President of the Industrial Tribunals in his letter of the 16 September. On the 15 September the Chairman of the local Industrial Tribunal having considered all the papers and correspondence with care came to the conclusion that as Mrs Gwent had failed to comply with the Order which had been made on the 27 April 1993 the application should be struck out.The terms of the Industrial Tribunals decision are set out with some care and we would incorporate into this judgment paragraph 17 to 21 inclusive of that decision which shows how the learned Chairman exercised her discretion:17. In exercising my discretion under rule 4(4) my chief consideration is the demands of justice. The demands of justice are reflected in the functions of further and better particulars, which are: to inform the other side of the case he has to meet, to prevent his being taken by surprise, to enable him to prepare his evidence, to limit the generality of the claim, and to define the relevant issues.18. I also bear in mind that the demands of justice require that an applicant should be allowed to put his case and that an originating application is not to be dismissed lightly.19. I find that all of the 14 particulars ordered are necessary to inform the respondents of the nature of the case they have to meet, to prevent their being taken by surprise, to enable them to prepare their evidence, to limit the generality of the claim, and to define the relevant issues.20. In my view to allow the case to proceed in such circumstances would put the respondents at so severe a disadvantage in the conduct of the proceedings as to constitute a grave injustice.21. IN THE EXERCISE OF MY DISCRETION I order that the whole of the originating application be dismissed on the grounds that:-i Mrs Gwent has failed to comply with an order for further and better particulars dated 27 April 1993.ii the effect of that failure is to deprive the respondents of the means of preparing their caseiii to allow the case to proceed would constitute an injustice to the respondentsiv any disadvantage to Mrs Gwent in not being allowed to proceed is the result of her own conduct and is outweighed by the injustice to the respondents."The Appeal Tribunal derives its jurisdiction from statute. Its powers are confined in cases such as these to dealing with misdirections in law of Industrial Tribunals. We cannot interfere either with discretion which have been properly exercised or with facts as found by Industrial Tribunals. In this case we are quite satisfied that there are no grounds for thinking that the Industrial Tribunal Chairman misdirected herself as to the exercise of her discretion having regard to the making of the Order for Further and Better Particulars as to which there was an appeal and the subsequent events which we have referred to in this judgment.Accordingly, we are quite satisfied that there is no point of law in this appeal, there being no grounds on which we could or should interfere with the discretion of the learned Industrial Tribunal Chairman and accordingly we will dismiss this appeal on the grounds that we have no jurisdiction to deal with the matter."Now after that, Mrs Gwent wrote to this Tribunal, and on the 16th August, through its officer, the Registrar, replied saying:
"Your application, [that is for a review] has been granted and the matter will accordingly be set down for hearing.

The Clerk of the Lists will fix a date for hearing in due course."

From that of course we take it that (without hearing about it), Mrs Gwent has quite adequate reasons for not being here, or at any rate excuses for not being here before Mr Justice Morison and his Tribunal and we therefore have to consider whether there are any grounds shown to us on which we could review the Decision of this Tribunal, made on the 20th July 1994.In order to undertake that task, because each of us is completely new to the case, we have each of us read what is said in all the documents which are with our papers. There are altogether well over 100 pages, most of it Mrs Gwent's own manuscript in which she puts her case on all sorts of matters. We have also, of course, studied the judgment which we have read. In general, this Tribunal's power to review is, as a matter of law, very limited; it arises if there has been some procedural mishap which has arisen, or some complete misunderstanding, or something which this Tribunal should have noticed which it unfortunately overlooked. Something of that sort may justify a review. It is for that purpose that the case was put in our list, so that we could hear what Mrs Gwent had to say, she, herself, having not been present on 20th July.Now Mrs Gwent has attended before us today, and she has told us very courteously and moderately of her complaints concerning the way she was treated by the Respondents. All those are matters which were the subject of her originating complaint to the Industrial Tribunal. We have, of course, considered what she has told us. Nonetheless, having heard that and having considered all the papers as carefully as we can, all three of us, it does appear to us that there are no grounds on which we should in law be entitled to review this Decision of our own Tribunal on the 20th July 1994. It appears to us to have been reached after considering all the material matters, and to be based on the disobedience to the order of the Industrial Tribunal, and the consequent striking out, which was made in the discretion of the Industrial Tribunal on the 15th September.It is not for this Tribunal to tell Industrial Tribunals how to try cases, or how to exercise their discretion, and therefore we regret to say, having heard Mrs Gwent address us most courteously, that we can find no ground on which we could possibly review the Decision of our own Tribunal, reached on the 20th July. It is therefore necessary for us to dismiss this Application.