Thein v Cross [1995] UKEAT 1103_94_2405

EAT
Thein v Cross
[1995] UKEAT 1103_94_2405 · 1995-05-24
MR JUSTICE MORISON : Mrs Cross, whom we shall call if we may the employee, had been employed by Dr Thein whom we shall call the employer, for a number of years as a doctor's secretary/receptionist. On 13th January 1993 she hurt ankle and was off work until 9th March 1993. During that period she was paid in full. The day before she was due to return to her work, she went into Dr Thein's (her employers) surgery on 8th March 1993 to be given a letter with a cheque inside. The letter was four weeks' notice although she was not, as we understand it, required to work it out. It said that she would be paid for the four weeks. This letter had been handed to her without comment and it contained no reason for her dismissal.She went to the Citizens Advice Bureau and on their advice wrote to the employer on 16th March 1993 asking for reasons for her dismissal and asking for one weeks pay for each year of service by way of notice monies.More than fourteen days later, the employer's solicitors, then on the record, wrote to the employee and said she had been dismissed for gross misconduct, in that she had hidden from her employer a letter which had been sent to her and received in January 1993. In contrast to what had been said in the dismissal letter, the solicitor's letter concluded:

"In the circumstances you are certainly not due any further payments."

On 7th April 1993 the employee presented her complaint to an Industrial Tribunal alleging that she had been unfairly dismissed. In her IT3, the respondent's answer to such an application, the employer gave as the reason for the dismissal, that the employee had deliberately misled her regarding a letter which had arrived on 8th January 1993.In due time the case was listed for hearing before the Industrial Tribunal. On 30th January 1994 before the hearing, the employee's representative wrote to the employer's solicitors asking for further and better particulars of the IT3 and for discovery of a number of documents including crucially, the piece of mail referred to, her personal file and any documents the employer intended to rely upon at the forthcoming hearing.Neither the particulars nor the discovery were given timeeously and on 22nd February 1994 a request was made to the Industrial Tribunal for appropriate orders. On 25th February 1994 the Industrial Tribunal made an order for discovery against the employer, requiring her on or before 2nd March 1994 to serve a list of the documents referred to in the representatives letter and an order for the further and better particulars.At some stage around the end of February 1994, the employer changed her legal representation. In place of her solicitors, she instructed Mr Narayan, a former practising barrister, who is described as `Director-General' of a limited liability company called `Civil Rights Europe Ltd, described as a legal consultancy.On 25th August 1994 over five months after the due date the employer had still not made disclosure of documents as required by the order. Accordingly the Industrial Tribunal wrote to Mr Narayan as follows:
"The Chairman of the Tribunals states that unless you comply with the order made on 25 February 1994 (copy enclosed) within seven days, or show cause why such an order should not be made, the Notice of Appearance will be struck out."
On 2nd September 1994 Mr Narayan wrote to the Tribunal saying that he had asked the employer to ensure that each and every document relevant to the applicant's employment is forwarded immediately to the applicant, copies to the Tribunal. The Industrial Tribunal did not receive copies of documentation from the employer until 14th September 1994, which was well outside the time limit specified in the Tribunal's letter of 25th August 1994. In relation to the employee she had not been sent the documentation and in particular only received the crucial letter on the morning of the hearing 21st September 1994.As a result of the employer's disobedience of the Tribunal's original order, the employee and her representative were taken by surprise, in the sense that, they had not had a prior proper opportunity of considering the crucial document. It was that eventuality that the discovery order had been specifically designed to avoid.At the hearing the Industrial Tribunal were informed by the employer that she was aware of the contents of the employee's request on 30th January 1994 before she changed her legal advisors. She said that all the documents were with him and he forwarded them, either to her or to Mr Narayan whom she went to see on 9th March 1994. She said that the crucial letter of 30th January 1994 was in her possession. She said that she had photocopied the personnel file, following a telephone conversation with her husband on 7th September 1994, it is to be noted, after the deadline had expired. Although Mr Narayan denied having seen the letter of 30th January 1994 requesting discovery and setting out the documents which were comprised in the order which was made, that must have been an error, because it is clear that in his letter to the Industrial Tribunal of 17th August 1994, Mr Narayan referred to letter of 30th January 1994, offering inspection of all documents at the employer's premises. It was that letter which prompted the Industrial Tribunal to write on 25th August 1994 drawing attention to the need for compliance with the Tribunal's discovery order within seven days.It follows therefore that Mr Narayan was fully aware of the order made by the Industrial Tribunal and the documents to which it referred no later 17th August 1994. Having heard evidence from the employer and receiving answers from Mr Narayan to their questions, the Industrial Tribunal concluded that the failure to comply with the order was wilful. In particular, because the employer only gave the Tribunal and employee a copy of the crucial letter of 8th January 1993 on the morning of the hearing.Accordingly the Industrial Tribunal concluded that the employer's notice of appearance should be struck out and in those circumstances they proceeded to hear the employees case, concluded that her dismissal was unfair, and made an award which in total amounted £13,759.00.The employer wishes to appeal against that decision, and a Notice of Appeal was filed contending that the order de-barring the employer from defending was "wholly wrong in law"; their late production of documents could not have taken the employee or her representative by surprise and they suffered no disadvantage; the documents went to the heart of the employer's defence which would inevitably have succeeded, and that the Industrial Tribunal should not have had available to it:
"private and confidential papers which had been exchanged between the parties on the basis of a projected settlement and these papers clearly operated on the Tribunal's mind to a position of bias and prejudice."
There was also an allegation that the Tribunal was racist in their approach but this allegation raised in the Notice of Appeal has not been pursued.The purpose of this preliminary hearing is to determine whether the grounds of appeal show an arguable point of law fit to be considered at a full hearing.This morning we have been considerably assisted by what we would describe as able and succinct submissions by Mr Boswick on behalf of the prospective appellant. He correctly identified the issue which is whether the Tribunal were entitled in law to deprive the respondent/employer of the opportunity of arguing that the dismissal was fair. He submitted to us that the failure to comply with the order as to discovery was inadvertent and not deliberate, that the documents were produced and therefore there was no prejudice in fact, and that there was, in essence, a technical breach rather than a substantive breach of the order because the documents were all produced at the Tribunal hearing.In the first place, it seems to us, that if the Industrial Tribunal were entitled to debar the employer from defending the claim, then the decision of the Industrial Tribunal cannot be faulted in relation either to their conclusion that the dismissal was unfair or to the amount of the award. Very properly, Mr Boswick accepts that that is the position. That is not to say that the outcome of the case would have been the same if the employer had not been debarred from defending.Secondly, if the Industrial Tribunal were entitled to conclude that the breach of the order was `wilful' their decision to debar the employer cannot be challenged. Mr Boswick, very properly put the case on the basis that this was not a wilful breach but an inadvertent breach, because he accepts that if there was a wilful breach then the Tribunal would have been entitled to make the order they did.The issue, therefore, is simply whether the Tribunal were properly entitled to reach the conclusion that the failure to comply with the Industrial Tribunal order was wilful. It seems to us that the Industrial Tribunal were manifestly entitled to reach that conclusion. The employer knew of the request for documentation; her legal representatives were aware of the deadlines. When Mr Narayan received the Industrial Tribunal letter of 25th August 1994 it was clear that urgent and immediate attention was required. That involved the collection of the documentary material; yet the employer did not start copying the personnel records until 7th September after the seven day time limit had expired and did not produce the crucial document until the day of the hearing. It is clear that there could have been no difficulty in complying with the terms of the order within the time available. Bearing in mind the considerable lapse of time between the making of the original order and 25th August 1994, and the non-compliance thereafter it was obvious, as we think, that the only sensible inference to be drawn was that the failure to comply was because the view was taken that no harm would be done by ignoring what was said and producing documents at the last moment. The purpose of prompt discovery was to avoid the surprise which the withholding of the crucial letter was bound to cause. The employee denied she had done what she was accused of and she was entitled to examine the document and make such enquiries about it as she thought fit, including testing its genuineness or otherwise. Accordingly we are of the view that on the facts every Industrial Tribunal would have been entitled to conclude that there had been a wilful breach of its order and to debar the defendant from defending.That leaves the last point mentioned in the Notice of Appeal. Again, if we may say so, with considerable courage and propriety, Mr Boswick has told us that he cannot pursue that point. We should add that we do not know what the documents being referred to are, but it is not unusual for a judge to be aware that parties are discussing settlement. That does not in any sense mean that they can no longer adjudicate on the matters in issue in a fair and sensible way. In our judgment this ground of appeal as with the ground which was advanced in the notice but then abandoned should not have been made. And we would like to make it clear for the record, that Mr Boswick was not involved in the drafting of the Notice of Appeal.In the circumstances as the Notice of Appeal reveals, in our judgment, no arguable point of law, the appeal will be dismissed. We would add that we have not examined whether the failure to comply with the order made by the Tribunal was the responsibility of the client or of Mr Narayan and it would be inappropriate for us to make any comment on that issue.