Hussain v British Steel Plc & Anor [1994] UKEAT 426_93_0507

EAT
Hussain v British Steel Plc & Anor
[1994] UKEAT 426_93_0507 · 1994-07-05

JUDGE HULL QC:

In this case Mr Hussain appeals to us from a decision of the Industrial Tribunal Chairman, Mr Emmitt, sitting at Newcastle upon Tyne on the 13 April 1993. It is probably most convenient if I go through the history of the matter. Mr Khalid Hussain has been employed by British Steel since 1965 when he was only sixteen or seventeen. He says that in 1986 (I am not quite sure that he is right about that date) he suffered a very unpleasant and serious injury at work. Ever since then, if not before, he has been absent from work on many many occasions. I will not go into the details, the list of his absences are at page 22 of our bundle.Starting in 1983, he was absent for a total of 135 working days. Indeed, almost every year he has been absent for very substantial periods, caused by the injury apparently. The good faith of his absences is entirely accepted, so far as the injury is concerned at any rate, but of course it did make matters difficult for the employers. This long history of injury and absence through injury lead to the incident which founded the proceedings which are now the subject of this appeal.In March 1991 Mr Hussain, who unfortunately had had some sort of family crisis, wanted to go to Heathrow from his home, which is in Middlesbrough, to collect his wife: she had come back to this country from overseas. The employers said that they would not excuse him, he was wanted at work. He was perfectly well, but he did in fact go and collect his wife and absented himself from work. There had been many warnings and intimations that absences would not be tolerated or would lead, even if justified, to dismissal.There was a disciplinary hearing and Mr Hussain was dismissed. Then on the 7 June 1991 he launched proceedings in the Industrial Tribunal. He complained that he had been unfairly dismissed and he also complained of racial discrimination. He employed Solicitors and the proceedings were defended. They were not prosecuted properly. It was Mr Hussain's duty as the Applicant in the proceedings to keep them moving and do all what was necessary to bring the proceedings on. He evidently did not and there were three letters written by the Industrial Tribunal in October 1992 to the address that he had given in his application to the Tribunal, that is at page 13 "98 Woodlands Road, Middlesbrough". They wrote three letters to him, they got no reply.The Chairman decided that the matter of striking the application out for want of prosecution should be considered. The Applicant had written on the 18 February 1993 to the Tribunal saying that he had been absent throughout November from number 98 and that was why he had not received, or at any rate not replied to, these letters from the Tribunal. On the 24 February a letter was written to him at the same address of 98 Woodlands Road, asking him to show cause, to use legal language, why both the applications should not be struck out for want of prosecution.Parliament intended, and everybody intends, that Tribunals should proceed in a summary way, that is to say should get on with the cases and have them heard quickly. That had not happened and so the Industrial Tribunal Chairman was there giving to Mr Hussain an opportunity to be heard. Then on the 2 March an appointment was fixed for the 13 April on which this matter would be heard. A letter was written giving him that date.On the 16 March he telephoned. He had received a letter from the Tribunal, the letter requesting him to show cause. He was told about the letter of the 2 March and the appointment on the 13 April. According to him, having heard about those matters, he explained that through the unhappiness at home, his wife had apparently torn up his correspondence and destroyed it so that he did not receive it. That was the explanation for some of the things which had happened. He went to Mr Pearson, his Solicitor he says who was acting for him. Mr Pearson said he would deal with the matter but did not.As a result, on the 13 April the application was struck out, it had not been prosecuted, it had not been carried on by Mr Hussain or his Solicitor. The decision is with our papers and of course we have looked at that. The Chairman, dealing with this matter was Mr Emmitt, he dealt with the history of the matter: I have tried to set it out shortly. He referred to the letters which had not been replied to and he referred to the letter saying that the application was to be struck out unless cause was shown to the contrary. He records that Mr Hussain had not thought fit to inform the Tribunal office that he had left his address at Woodlands Road, or to provide the Tribunal with an alternative contact address. That of course was an important matter. Mr Hussain, or his Solicitor, should have made quite sure that as he was carrying on these proceedings against his employers, the Tribunal always had an address where he could be reached.The Tribunal Chairman said that Mr Hussain had been informed of the date of the hearing and he referred to the telephone call which had taken place. The Tribunal Chairman was satisfied in his mind that Mr Hussain knew of this appointment and indeed he was right, there was no doubt about that. Mr Hussain did know of the date of the hearing and had left matters to his Solicitor, who had let him down, because he was not present and was not represented.The Chairman, after waiting a little while, then decided to dismiss the applications:
"Mr Hussain has been given ample opportunity to explain his delay and I conclude that he has no intention of pursuing his complaints seriously and with reasonable despatch. Further, he has not denied that he has been adjudged bankrupt and he has given the Tribunal no opportunity to communicate with the Trustee in Bankruptcy to ascertain whether or not the trustee in bankruptcy wishes to proceed with the complaints."
Mr Hussain does not, as we understand it, quarrel with those conclusions of fact. What he does say is that his Solicitor let him down. When litigation is started and the matter is entrusted to a Solicitor, in general his client has to accept responsibility for what the Solicitor does. The Solicitor has very responsible tasks. If the Solicitor delays or does not take the steps which he should, then the Client (in this case, Mr Hussain) has to accept responsibility for that. Of course, he can look to his Solicitor and complain that his Solicitor has let him down but that is something quite different.The law says that proceedings, whether they are actions in Court, or applications before Industrial Tribunals, must be carried on with reasonable speed. If they are not, the hardship to the other parties can be enormous and so actions and applications are not allowed just to hang on, possibly to the prejudice of the other parties. It was on that basis that the Chairman purported to act.We are a Tribunal which can hear appeals only on questions of law. We are not allowed to go through all the facts again. Parliament has said that we are not allowed to do that. If we do, if we reach a decision on the facts, we have no authority to do that and the decision is worthless, so we have to confine ourselves to questions of law. We ask ourselves, therefore, can we find any error in the way in which this Chairman of Tribunals proceeded and in the decision which he reached, to strike out Mr Hussain's applications?Mr Hussain has helped us as well as he could; I have already summarised what he told us. Mr Fletcher, for British Steel and the Iron and Steel Trades Confederation, who are both Respondents to Mr Hussain's summons under the Race Relations Act, has addressed us and reminded us of the limitations on our jurisdiction which we have to observe. Having considered all this, we cannot find any error of law. It was a matter of discretion for the Industrial Tribunal Chairman, to be exercised of course on well known principles, whether he should in the circumstances strike out the applications.We cannot find that he exercised that discretion in any way which was wrong in law. It is not up to us to say whether we would ourselves have exercised the discretion in the same way, and we remind ourselves that the Chairman knew a great deal more about this case than we do.We have to say that we cannot find any error of law here. No error of law in the way in which the Chairman proceeded and no error of law in the conclusions which he reached and the decision which he took. In those circumstances we are quite unable to interfere and the appeal has to be dismissed.