Armstrong v Devon County Council [1995] UKEAT 1083_95_2310

EAT

Armstrong v Devon County Council

[1995] UKEAT 1083_95_2310 · 1995-10-23

JUDGE HULL QC:

Mr Armstrong was employed (and we believe still is employed, to a certain extent) by the Devon County Council at their Newton Abbot Adult Education Centre. He was apparently first employed there on 22 June 1993. These details do not matter very much but they are the background to the case. Apparently, he is a computer expert and was employed first on one computer class, on Tuesday evenings and then he began a Monday class on Monday mornings in April 1994.

So far as we know (although this is purely based on what we have seen) the matters with which we are concerned really began on 2 May 1995. There was a letter which has been sent to us which is labelled R11, a letter of 2 May 1995. It is from the Royal Society of Arts which is, apparently, the authority which monitors and validates the examinations at this, and no doubt many other, adult education centres and they wrote in a disturbing way to the head of the Newton Abbot Adult Education Centre. They say, with reference to 16 candidates who were submitted for a Computer Literacy and Information Technology scheme:

"During the moderation process discrepancies were noticed. In the Word Processing assignment five candidates and the tutor have identical errors [and they gave short particulars of that].

I enclose the work which was submitted and I should be grateful if you would investigate and let me have your report on whether any breach of regulations has occurred or whether there is a reasonable explanation.

The results cannot be processed until I receive your reply."

Needless to say, any education authority receiving a letter like that, from the authority which monitored the examinations, would be gravely concerned and there is a note on the next page, by a Mr Dixon apparently, who did look into it with Mr Armstrong as the person responsible. It is a note which again causes some concern. According to the note (and again, it may be or it may not be that Mr Armstrong objects to or has a different recollection from what is recorded in the note) Mr Dixon records that he had a:

"Meeting with Mr Harry Armstrong to discuss ... [this letter]. Mr Armstrong was agitated and not sure of how the mistake happened. I enquired about his health and stressed the significance of the RSA action e.g. how it looked like cheating and how it could endanger the RSA registration of the whole service in mid term.

Mr Armstrong assured me it was a mistake due to stress and not deliberate. I asked Mr Armstrong to prepare a written report ... "

And it spoke of the embarrassment caused and he says later:

"The mistake was serious enough to endanger his [Mr Armstrong's] re-appointment ... "

That was Mr Dixon's note and on the next page R13 is a letter or memorandum from Mr Armstrong himself, dealing with this matter apparently, of 10 May 1995 to a Ms Moore:

"I apologise for the unfortunate situation my apparent lackadaisical marking has caused to Newton Abbot Adult Education Centre and yourself, not to mention the embarrassing circumstances I find myself in. ..."

He then gave an explanation of what had happened, or part of what had happened and how it had happened. And he said later:

"Whether any of these conditions (my state of health or the troubles of the computer network system), a combination of them or maybe something else had anything to do with my errors I can only guess. I will in future, though, revert to giving the RSA courses and assessments the respect they have previously always being given and I will not be rushing to send in the assessments before thoroughly checking them first. I shudder to think that my errors could have denied any of the candidates a certificate that they would be deserving of.

I acknowledge that my not re-checking the re-prints has caused an awkward situation between yourself, the extremely fine Adult Education Centre of Newton Abbot and myself. I can only apologise again for that and my not being able to offer a logical reason for the errors being made. It is still baffling me."

So that was what Mr Armstrong wrote and so he was, as a result of this, informed by Mr Dixon that he was not to continue with the Tuesday evening class but would be allowed to continue with his Monday morning class. That, on the face of it, bearing in mind the seriousness attached to it by the Authority, in the person of Mr Dixon and others, and by Mr Armstrong himself in the note which I have just read, is hardly a surprising result. Mr Armstrong himself complained of stress. At any rate, that was what was done and of course, it is not for us to judge the merits of it in any way.

Then, apparently, Mr Armstrong discovered that his class on the Tuesday was now being conducted by a woman whereas he said he had been given to understand that it was going to be discontinued. At any rate, at page 9 of our papers there is his application to the Industrial Tribunal making a complaint. He complains that at his work he has been the victim of sex discrimination and he gives details of that. I am not going to read it all out, we have all read it and that was his complaint to the Industrial Tribunal which he made on 21 July. It appears from that that his employment, he said, ended in July 1995, but apparently there is some difficulty or doubt about that too.

The answer was put in by the local authority and that is at page 12 of our papers. They said that they intended to resist the application; they denied the suggestion that there had been any discrimination; they set out some of the facts to which I have referred, or their version of them and they said that Dr Dixon had made arrangements for the Tuesday evening class to be covered in future by another tutor who was experienced in teaching and they said, therefore, that they denied that he had suffered any detriment and denied that he was discriminated against under the provisions of the Sex Discrimination Act 1975.

Those were (so to speak) "the opening shots" in the complaint which Mr Armstrong wished to make to the Industrial Tribunal. The authority, as they were perfectly entitled to do, asked the Industrial Tribunal whether it would conduct a pre-hearing review of the application and that notification was made on 5 September and is with our papers:

"Notice is given that ... the Tribunal will hold a pre-hearing review on Tuesday 31st October at 10.00 am ... "

And there are notes given concerning the powers and procedure.

Then, at page 4 of our papers, Mr Armstrong wrote to the Chairman asking him to review his decision to conduct a review (I am not going to read that, as I say again we have read that ourselves) and at page 5, the matter having been referred to the Chairman, the Industrial Tribunals office wrote saying:

"The Chairman has directed that the pre-hearing review is to stand and any objections can be made there."

Mr Armstrong appeals to us. His Notice of Appeal is in an informal shape; that is to say, it is a letter to us and it asks us to entertain Mr Armstrong's appeal against the decision to hold a pre-hearing review.

After setting out the history he says:

"I wish to appeal against the Chairman's decision not to grant me a Full-Hearing."

And then he refers to other matters which we are not, in any way, concerned with.

Mr Armstrong has appeared before us today. The Respondents, the local authority in their capacity as an Education Authority, and responsible for the Education Centre, have sent us documents which add to those which we have in our bundle. Mr Armstrong has seen those and I have referred to them.

The first question for us is how Mr Armstrong puts his case. He has made a written submission to us and he is today concerned, so far as we can see, almost entirely with the question of the advantages and disadvantages which may accrue to him from the process of discovery. He says he has asked for discovery and been refused. That, it must be said, is not the subject of the appeal. There is no conceivable reason that we can think of why Mr Armstrong should not inform the Respondents that he wishes to ask for discovery of documents at the pre-hearing review and should not write to the Tribunal and ask the Chairman whether he will entertain it on that occasion so that he can hear Mr Armstrong in person. It may be that the Tribunal will say "no this is an application which is usually made in writing and we will consider it, will you please make a submission in writing".

However that may be that is nothing to do with us. We are concerned with the question of the pre-hearing review and Mr Armstrong's objection to the Chairman holding a pre-hearing review.

As to the nature of a pre-hearing review, I have already read to Mr Armstrong the salient provisions of Rule 7 which deals with pre-hearing reviews and Mr Armstrong told us that he had not found time to study the provisions of that rule. He should (if I may say so) do so and carefully consider what is said there. The pre-hearing review is intended to weed out hopeless applications to Industrial Tribunals.

It is provided by the rule that the Tribunal may, in any case, "on the application of a party or of its own motion ... decide to conduct a pre-hearing review and it will then consider the written application and the Notice of Appearance, any representations in writing made and any oral argument advanced by or on behalf of a party".

So it does not entertain evidence and Mr Armstrong was mistaken in thinking that the Chairman might receive evidence. He is not under the rule to receive evidence; he is to look at the pleadings (if I can call them that, the application and appearance) and representations and listen to any oral arguments. Having done that, he may of course make no order but:

"7(4) If ... 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."

And then under paragraph 5 of the rule:

"(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."

Which, in other words (almost in terms) means that the Applicant, if he is ordered to make a payment, should be entitled to have his financial position considered so that a reasonable sum only will be ordered.

So there for a sum of £150 maximum a party can be told at an early stage, in the view of the Chairman, "your application has no reasonable prospects of success". One would have thought one could hardly have more valuable advice than that, because if that view is followed by the Applicant, of course an enormous amount of trouble and expense will be saved. If, on the other hand, he wishes to go on, he must, within the 21 days, pay in the sum which he has been ordered to pay and he may then go on. It is, of course, at his own risk in the sense that if an order for costs is made against him on the basis that his application is unreasonable or vexatious or something of that sort, then he will not get his money back; that is the greatest penalty that can befall him, but in return for that (as I say) he has had an early indication as to the view which the Chairman takes.

Of course, the Chairman may take a very different view and say "having heard all about this from Mr Armstrong and having looked at his written representations (if he chooses to make them) and having considered what the authority says, this should proceed". In any event, as long as the order (whatever it may be) is complied with, then the case proceeds to a full hearing in the normal way.

That is the substance of it and this has been introduced by the Tribunals on the authority of Parliament itself, in an endeavour to prevent the Industrial Tribunals being seriously congested with cases which have no reasonable prospect of success.

It is entirely within the discretion of the Chairman whether to hold such a review; it is entirely within the discretion of the Chairman whether he forms the view, when he does hold such a review, that there are or are not reasonable prospects of success. It is entirely within his discretion if he does form the view that there are no reasonable prospects of success; whether he orders a payment in and if so, how much, but his discretion is limited to the sum of £150.

This appeal is brought to us against the decision to hold the pre-hearing review. It does appear to us (with all respect to Mr Armstrong) to be an utterly misconceived appeal. He puts it that he is being prevented from proceeding; there is no question of that. What is going to happen is that he is going to hear and the Respondents are going to hear, the Chairman's views on this question of whether the application has reasonable prospects of success.

It may be that Mr Armstrong will be ordered, within 21 days, if he wishes to proceed, to make a payment into the offices' funds. That may or may not happen, and it may or may not happen that, if he asks for discovery, he will get it when the Chairman has heard what he has to say about it; that is a matter for the Chairman.

The duty of an Industrial Tribunal to try cases fairly includes all the steps leading up to the hearing of the application and the pre-hearing review is a very important part of that. The duty is cast fairly and squarely on the Chairman and not on us. It is the Chairman's discretion that counts, not ours. It is his duty to make sure, so far as he can, that the hearing is conducted fairly and without unnecessary expense and delay (not only to those appearing in front of him but others too).

We can only interfere if the Chairman is blatantly wrong in law, so that we can see an error of law, or if, on the other hand, his decision is perverse; that is to say that it is an utterly unreasonable decision which no Chairman, directing his mind properly to the issues, could have made.

Nothing like that is shown here at all. If it was for us to say, we would think it a perfectly reasonable decision of the Chairman to say that he would like to hear some more about this, because he is not sure that there are reasonable prospects of success and to satisfy his mind on that point and make such order as seems just to him after having heard the parties. It is not for us to say that.

We can find no ground whatever for interfering with the Chairman's decision to order a pre-hearing review and in those circumstances the appeal has to be dismissed today, since no point of law arises. We will just say for Mr Armstrong's benefit (in case he has not studied this either) that under Section 136 of the Employment Protection (Consolidation) Act 1978 , we have no jurisdiction over questions of fact at all; we are confined by statute to considering questions of law.

So in those circumstances, this appeal must be dismissed.