Jones v Borough Council Of Calderdale [1994] UKEAT 641_94_1111

EAT

Jones v Borough Council Of Calderdale

[1994] UKEAT 641_94_1111 · 1994-11-11

JUDGE HULL QC:

This is an appeal to us by Miss Lyn Jones who lives in Todmorden in Lancashire. She made a complaint against Calderdale Borough Council and she has given us the following history. I am summarising it very shortly.

In 1985 she joined Manchester City Council as a Housing Adviser, and in 1990 she left Manchester where she had not been, apparently, happy. There was a colleague there, a superior, who she says did not treat her at all well. I am not going to go into the details because, as I have already explained to Miss Jones, this is a Tribunal where we cannot go into the facts and have no jurisdiction on facts.

On 17 September 1990, she joined Calderdale, as I will call them, her employment began there as Housing Advice Centre Manager. In 1992 she joined something called "Calderdale Inheritance" where she continued, apparently, with many of the same colleagues and her employment ended on 31 October 1993, in circumstances of which she makes complaint. In her application to an Industrial Tribunal, under the heading

"(1) Say what type of complaint(s) you want the Tribunal to decide", she said as follows:

"Bullying over a prolonged period, including failure to observe equal opportunity resulting in my resignation and loss of career (probably home)".

And she gave particulars of unfair and inconsiderate treatment which go over many pages, attached to her application. Looking at those particulars and other letters which she has written, in particular what she said in her application, the fair view of her complaint (it is not put in lawyer's language) is that she is complaining of constructive dismissal by reason of the matters she complains of, which is unfair and for that she wants, as she says, compensation. So it appears to us that the fair reading of her application is that "by reason of

the matters complained of, she says, she has been constructively and unfairly dismissed" , and of course that

is a matter which the Industrial Tribunal has jurisdiction over.

So that was her complaint to the Industrial Tribunal. The Authority, the Respondents, her former employers, put in their own reply (IT 3) which is at page 45 of the bundle, and it appears that they understood it in the same sense. They said that they resisted the application. They said that Miss Jones was not dismissed and they state, fairly shortly, on page 46, what their case is.

"The Council does not accept Miss Jones' claims that she was bullied by senior officers during her employment with the Council. It is not considered that there has been any failure by the Council to comply with its Equal Opportunities obligations in respect of Miss Jones.

Miss Jones' work performance was not always satisfactory during her time with the Authority. This was the subject of proper action by her Supervising Officers, both informally and within the Council's Disciplinary Procedures.

The Council does not accept that it dismissed Miss Jones either directly or constructively.

The allegations made by Miss Jones relating to her period of employment with Manchester City Council do not appear to be relevant to a complaint against the Borough Council of Calderdale".

So that is what they said. Then, the Industrial Tribunal had, of course, to consider the complaint that was made to it, and how it should proceed to a hearing of the complaint in due course. And there is a very important provision now in the Rules, which is the subject, so far as we can judge, of the appeal to us, today.

In the Industrial Tribunals Rules, which are Schedule 1 to a Statutory Instrument, called the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, there is a provision in Rule 7 for a pre-hearing review (as it is called) and that provides, under

paragraph 1:

"7(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of consideration of:-(a) the contents of the originating application and notice of appearance [those are the documents I have just been referring to];

(b) any representations in writing; and

And then the parties, of course, are to be given notice of the pre-hearing review and paragraph 4 of the Rules says this:

"7(4) If, upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter".

Paragraph 5 provides a safeguard for anybody who is so poor that they cannot find a sum of that order:

"7(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit".

And then there is provision for the Tribunal to give its reasons shortly, for why they say "that it has no reasonable prospect of success" if they do so find and so that was the enquiry on which the Tribunal was entitled, by its rules, to embark. The notes, record and the order made are at pages 49 onwards of our bundle.

When we look there we see at page 49 and 50 the notes of the learned Chairman, Mr Prophet on Friday, 20 May 1994, when he conducted his pre-hearing review of this case.

It seems to have gone on a great deal longer than such enquiries usually do. It is intended, of course, that this is to be something like a hearing in front of one of the Officials of the Court, the Masters of the Supreme Court, to see whether there is anything in her case. And it is not intended to be a long drawn out affair.

The length of the enquiry by Mr Prophet appears to be very largely because of the complexity of the allegations that were made, and the fact that Miss Jones was herself appearing in person, and was therefore, not being a lawyer, not able to put matters as plainly as a lawyer could, to set out her complaints to the Chairman. And it is concerning this enquiry, as I say, that it appears to us that Miss Jones makes her appeal to us.

The Chairman makes a note of what Miss Jones told him and what the Solicitor of the Respondents, who also attended, told him. They appear to be careful notes and eventually he records that this lady, Miss Jones, has a temporary job which pays £19,000 a year and she gets £1,000 a month net. She is paying off an overdraft, she says, and he decides to order her to pay £50 into the Tribunal's account.

That is an order which on the face of it was open to him, if he found that the contentions put forward by Miss Jones did not have a reasonable prospect of success. Needless to say, it is for the Chairman of the Industrial Tribunal and not for us to say that. It is a personal decision by the Chairman as to the view which he is able to form on such matters as are laid before him and in particular, the application and the answer by the Authority, as I have already said. And his Decision is set out at page 52:

"The tribunal hereby orders the applicant to pay a deposit of £50 as a condition of being permitted to take part in the proceedings before the tribunal in respect of her complaint of an unfair dismissal".

And then the Summary Reasons are given. He sets out the complaints made by

Miss Jones and then the Tribunal goes on to say:

"2. To prove dismissal, the applicant will be required to satisfy a tribunal hearing the merits of her case that she was constructively dismissed having regard to the tests laid down by the Court of Appeal in Western Excavating (EEC) Ltd v Sharp [1978] ICR 221 [and he refers to a leading case on the subject there].

3. On the information considered at the pre-hearing review she appears to have no reasonable prospect of so doing".

And so he ordered a payment of £50 and of course, that was only a deposit, it was to await the event of the case. Then, there was an application for time to be extended and we see at page 58, a letter from the Tribunal extending the time by 14 days, to pay the £50 deposit and giving dates of the full hearing which was to be in August 1994. The letter mentioned the possibility of an award of costs against her. That would arise under the Costs Rule (Rule 12) of the Industrial Tribunals and there, if they found that Miss Jones had acted unreasonably in carrying on her case, they could make an order for costs against her and the £50 would go towards those costs.

So that was (so to speak), from the Tribunal's point of view, "a shot across her bows".

It appeared to the Chairman, not trying the case, but looking at it as best he could at the pre-hearing review, that there was no reasonable prospect of success. If that did turn out to be the correct view (and of course it would be tried by a different Chairman in due course and with his industrial members); but if it did turn out that, in their view, the Chairman was quite right and Miss Jones had been unreasonable to proceed with it, then it would be open to them to make an order for costs against her.

So that was a "shot across the bows", a warning by the Tribunal. It is not, on the face of it, a severe order to make. It is not, as it would be in court, an order striking out or ordering a very substantial sum to be brought into court for costs. Going on with Rule 7 - under paragraph 7:

"7(7) If a party against whom an order has been made does not remit the amount specified in the order to the Secretary, either - (a) within the period of 21 days beginning with the day on which the document .... is sent to him, [which contains the order] or (b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

[that extension was, of course, made here].

The tribunal shall strike out the originating application".... .

So that is exactly what has happened here. Miss Jones, for reasons which she has not explained to us, has not paid the £50, as ordered by the Tribunal and accordingly, her Originating Application has been struck out. The Tribunal had no alternative to that and so her application is at an end.

She applies to us saying, basically, that what happened before the Chairman was unfair. She was given notice of the hearing. She attended. She points out to us that although she had consulted various people, she thought it was going to be a 20 minute affair. The Regional Secretary of the Tribunals on behalf of the Chairman has written to us and he says that it is, indeed, true that it was a much longer hearing than that. He writes at page 11:

"The Regional Chairman has asked me to forward to you copies of the enclosed documents [as he was asked to do]...... . He does not feel it would be appropriate to comment apart from saying that the term `grilling'[that was Miss Jones' terms to describe his conduct] is most unkind. The Pre-Hearing Review and the subsequent directions hearing was longer than is usual but that is mainly because the applicant was in great personal distress and consequently was treated very gently indeed and given every opportunity to explain her point of view".

That is what is said on behalf of the Chairman. It appears that his note amply bears that out in the detail which it contains, but Miss Jones says to us as follows and I will just go through my note of what she said to us. I certainly will not read it all out.

She says she was only expecting a 20 minutes hearing. She thought it would be just a friendly discussion. She had her adviser or helper with her and he had been told that it would only be a chat of 20 minutes. There might be a small deposit required. That was accurate information of course, a small deposit was required, very small in relation to the costs of a case like this and she had gone therefore to the Pre-Hearing Review under a misapprehension. She was on the witness stand, as she puts it, though no doubt seated, for 2 hours.

That was of course her opportunity to persuade the Chairman that her case had reasonable prospects of success and as he said, "she was distressed". A person who is distressed does not find it easy to be concise, and to the point, and so the Chairman was quite right to give her as much time as he possibly could to explain herself. She says that the representative of the Respondents spoke for five minutes. She asked for help from Mr Prophet, the Chairman. That is a difficult thing. Of course, the Tribunal must always try to assist a person in presenting their case, but the Tribunal, just as this Tribunal, is not allowed to advise people and if, indeed, it did try to advise people it would be accused of bias because, of course, to give advice to one party rather than the other, is to favour that party rather than the other.

She says "I could have asked for an adjournment and I wonder", she says, "why he did not advise me to ask for an adjournment", although she did not. That would be, on the face of it, a very cruel thing to do if a person was distressed and finding it very difficult; to say "well, we'll have another go at this and you will, no doubt, be distressed again when it all has to come back here", would not be kind and she did not ask for one. She says she ploughed on. She was quite entitled to. She says "I was alleging constructive dismissal and a breach of equal opportunity". That is quite clear grammatically from her application. It was all part of saying "I was constructively dismissed".

She showed Mr Prophet what she was talking about by showing him proofs of evidence and documents from her large bundle which is laid before us and she said that she complained also that there was a matter not in the IT1, her application, which was that she had not been given a salary increase, which she said she was entitled to. And she told him all about the bullying to which she had been subjected. The solicitor talked about gross misconduct and her right to appeal against the final warning which she had been given.

She told the Chairman that she had consulted councillors and the Mayor and various other well informed public figures, about her case. So that would be some comfort to the Chairman because, clearly, to consult people like that would very likely give her as much information as she reasonably required and she said she had 12 witnesses ready to attend and give evidence about how hopeless the Authority are. They do not follow their own procedures and so on. And she says, "I made the Chairman well aware of my complaints and my reference to all these people and the harassment I had received. And I replied to the solicitor's submission. I had consulted Victim Support".

So she had done what she came to do, which was to make the Chairman well aware of what her case was. And it was then the Chairman's duty, and his alone, to decide whether she had reasonable prospects of success in her application or not. He decided that she had not. He had, on her own account of the matter, given her every opportunity to explain matters to him and that was his view. It is, of course, quite idle for us to say whether it would be our view, we were not present there. We did not spend two hours or more listening to Miss Jones and considering all the papers and we are not allowed to say whether we would have reached the same view. It is quite irrelevant.

What we do have to consider is whether the Chairman was entitled, as a matter of law, to reach that view. Miss Jones says to us, "it was perverse and it was not in the interests of justice". She said he had not considered the evidence. She says the decision is inconsistent in not referring to sex discrimination, but as I say, that was all part of her case which she had put to the Chairman that she had been constructively and unfairly dismissed. "I asked for it to be overturned" she said. And then finally, she says she wants the hearing in Manchester.

We ask ourselves first of all, is it shown to us that the hearing by the Chairman was unfair? He had a distressed lady in front of him. We accept that she was distressed. She did not ask for an adjournment. He gave the case much longer than he normally would. He took a careful note and he heard all that she had to say and in her own words, "I made the Chairman well aware of my complaints". It seems to us quite impossible to say that the hearing was conducted unfairly in all those circumstances. The solicitor spoke for only five minutes and there is no complaint of the other side's behaviour at the hearing.

So the material was fairly and properly laid before the Chairman. Is it, as a matter of law, impossible to come to the conclusion to which the Chairman came, is it perverse in that sense that the Chairman must have made an error of law? We have read what was laid before the Chairman, the contents of the complaint made by Miss Jones.

It appears to us that it most certainly is quite possible to come to that conclusion, after reading all the material, and it is very copious. It is very possible, as a matter of law, to reach the conclusion which the Chairman did and, as we say, it is not for us to say whether we would have reached that conclusion or not. Was the order which he made a reasonable one? She was earning, she told the Chairman, £19,000 a year. That certainly was her earning capacity. She long held a highly responsible job with that order of reward. Plainly, a deposit of £50 in those circumstances cannot be said to be an unreasonable order.

The application has now been struck out. The Tribunal has no alternative. That order having been made, and it was only an order to deposit £50, is not being complied with. The Tribunal's orders must be complied with. That is what Parliament has said and that is what the Lord Chancellor has said in the rules.

Those rules are based on the notion which applies to all courts and tribunals, that in order to regulate their procedure and do justice, they must make orders for that purpose. And if they make orders, they must be complied with.

This order was not complied with and the rules therefore, which are made and are binding upon the Industrial Tribunal, provide that the case is to be struck out, and it has been struck out. Miss Jones, in her application to us, says the Originating Application was reasonable. That does not come into it. It may have been a very reasonable application. The question was "whether, in the view of the Chairman (not in our view, not in anybody else's view) it had reasonable prospects of success".

Then, the application to us by Miss Jones, the appeal to us says, was the Pre-Hearing Review conducted properly? It is not made to appear to us, in any way, that it was not conducted properly, although we very much sympathise with Miss Jones, who quite apart from being distressed, has suffered from ill-health, about which she has told us just a little.

We are asked to overturn the ruling of the learned Chairman. It appears to us quite impossible to overturn a matter which was within the discretion of the Chairman, where from all that we have heard, and all that we have read, he appears to have conducted his Tribunal in a proper and fair way. In particular, we have heard something about natural justice. The essence of natural justice is to give a fair hearing to a person, to make sure that they are heard. It does appear to us that this Chairman did make sure that he heard everything that Miss Jones could tell him about it and unfortunately for her, he reached a conclusion adverse to her.

Miss Jones asks us to reinstate her application. Just as the rules are binding on the Industrial Tribunal, so they are binding on us. We have no power, when something has been struck out like this, to re-enter it in the List.

It appears to us that this is particularly sad in that all Miss Jones had to do, having had this warning shot from the Chairman, and the advantage of two hours in which she received the impartial attention of the Chairman and received some very wise indications from him about the nature of the case and its likely prospects of success, if she was determined to go ahead in spite of the view which the Chairman had indicated, was to pay the £50 into the Tribunal's funds within the five weeks which were eventually allowed her.

We cannot think of any reason why she should not have done that; and if she thought that she was in any way disadvantaged by anything that happened, she could appeal the decision if it was adverse to her and of course, take advantage of the decision eventually, if it was favourable to her. That was all that she had to do. She has refused and declined to obey the Order of the Tribunal, which was a lawful Order, as it appears to us.

We cannot see anything wrong with the way in which the Order was made and she is now, in complaining that her application has been struck out, complaining of the inevitable consequences of disobedience to the Tribunal's Order. One regrets to have to put it so bluntly to a lady who has been distressed and who is unwell. But that is the position, as a matter of law, and as I have explained or tried to explain, we are a tribunal of law and our sympathies and so on are not really in point and our views of the facts are not in point.

We cannot find any error of law here, even with Miss Jones' assistance and therefore we have to say that the appeal must be dismissed.