Sandhu v Leicester City Council [1995] UKEAT 455_94_2103

EAT
Sandhu v Leicester City Council
[1995] UKEAT 455_94_2103 · 1995-03-21

JUDGE LEVY QC :

On the 9th March 1994 an Industrial Tribunal sitting at Leicester dismissed two consolidated applications before it by Mr R.L. Sandhu on two grounds. The first was that the proceedings had been conducted in a vexatious manner and the second that an Order of the Tribunal had not been complied with.The reasons for the Decision were given on the 30th March 1994 and from that Decision the applicant, Mr Sandhu, has appealed.We have had the benefit today of representation on his behalf from his wife, Ms D P M Kelly. We have also had the benefit on behalf of the Respondents excellent submissions from Mr Pitt-Payne. We should say that both parties have given us every help that they possibly could in a reasonable and reasoned manner.In order that this Appeal should be understood. It is necessary to give a short chronology of some material events.On 17th December 1985 Mr Sandhu's employment began as a planning research officer, with the Respondent Council. On 29th January 1992 he made a complaint to the Industrial Tribunal alleging racial discrimination between 31st October 1991 and 5th December 1991. On 31st August 1992 he resigned from his position. On 23rd November 1992 he made an application to the Industrial Tribunal for compensation alleging constructive dismissal. After certain interlocutory proceedings on 1st June alternatively 1st July 1993 (no one was able to tell us the right date) both of his applications were consolidated by consent. On 4th and 5th January 1994 the hearing of the proceedings commenced and continued. They were scheduled to last for some four days. On January 4th and 5th Mr Sandhu gave evidence. On 6th January he did not attend and on that date there is an Order for Directions made by the Chairman, as recorded in the Order, which reads as follows:

"ORDER FOR DIRECTIONS"

"The Chairman directs that:"

"1. The applicant having failed to attend today being the third day of the hearing, this case is adjourned on terms that the applicant shall supply a letter to this office signed by a medical practitioner in which he or she certifies that in his or her opinion the applicant is unfit to attend the hearing tomorrow 7 January 1994 by reason of physical or mental infirmity over which he has no control."
"2. The said certificate shall be supplied to this office by or before 4.30pm. on Monday 17 January 1994."
"3. If the said certificate is not supplied either at all by the said date or in the terms stipulated, this application shall be dismissed under rule 9(3) of the 1993 Rules of Procedure."
It is common ground that on 6th January the hearing was adjourned until 11th April.On 7th January, the day after that direction had been given and the case had been adjourned, Mr Sandhu saw his doctor, Dr Linnemann. The doctor signed a standard form Medical Certificate and she also gave him a letter in these terms:

[Dated]" 7.1.94"

"Dear Mr Sandhu"

The certificate issued will be sufficient. Yours sincerely, Patricia Linnemann. The tribunal can always contact the surgery by phone to confirm."There was a date stamp giving the doctors name and address and telephone number.]The Medical Certificate reads:
"This is to certify that my opinion Resham Sandhu of 24, Paget Road, Wolverhampton is suffering from Tension and Viral Illness and is unable to attend work on 4th 1.94 until 10.1.94"
The doctor's signature is there as in the date:

"4.1.94"

That document was sent to the Tribunal. There was in the meantime an interlocutory application by Mr Sandhu to this Tribunal which did not succeed. He also took steps to attempt to have the postponed hearing, re-fixed to continue on 11th April, postponed. This did not meet favour with the Tribunal.At the beginning of March Ms Kelly had written a letter to the Council and to the Industrial Tribunal, to which Mr Cross, the assistant head of legal services , who had been conducting the case for the Council, noted on 7th March. His reply was recorded shortly before the hearing of a further interlocutory hearing which had been arranged by the Industrial Tribunal. The concluding paragraph on the first page of his letter reads:
"I should like, however, to put you on notice that at the hearing on 9th March, if the Tribunal decides not to strike out Mr Sandhu's claims pursuant to Regulation 9(3) of the 1983 Rules of Procedure Regulations, [ and we think this is a mistake for 1993 Rules of Procedure Regulations] I shall be applying for these claims to be struck out under this Regulation (in particular bearing in mind the comments of Dr Linnemann) and/or in view of the request for postponement of 11th April hearing on the basis of want of prosecution. Alternatively, I will invite the Tribunal to strike out these claims on the basis that they are frivolous or vexatious arising from the fact that Mr Sandhu resigned to take up lecturing position and, as such, suffered no detriment"
"I am copying this letter to the Tribunal Office, and at the same time am enclosing a copy of my letter of today's date to them."
On that same date 7th March 1994; Mr Cross wrote to the Industrial Tribunal saying in the second paragraph:
"I should be grateful if you could formally notify the applicant of the application I am proposing to make at the hearing on 9th March with regard to striking out these claims."
To those facts, it is material to add others. After leaving the Council, Mr Sandhu had obtained other employment. The reason he had given for seeking to postpone the date for the resumed hearing from 11th April was to do with commitments he had to undertake for his new employer. He expected to be lecturing abroad from time to time. He wanted to avoid a clash of dates. The Council and the Tribunal refused his request. On the face of the documents which we have seen, the inference we draw is that the Tribunal thought the attempt to change the date was simple prevarication and the request was therefore not given any of the consideration with which, in the experience of each member of this panel, a court or tribunal tries to accommodate the convenience of litigants. At a date unknown to us, the Respondent Council had obtained an order from the tribunal requiring Dr Linnemann to attend and give evidence to the Tribunal. She was not very happy to comply with the order, but she forwarded to the Council a letter the terms of which read as follows:
"I write with the consent of Mr Sandhu, to confirm that I saw him at the surgery on 7 January 1994 and found that in my opinion he was fit to attend the tribunal on the 8/1/94 ... a Saturday ).
On the 7/1/94 I found him to be in an acutely anxious and agitated stated [ sic ] and greatly distressed as a result of the proceedings of the Tribunal over the previous 2 days. In addition he was complaining of malaise and a sore throat which was probably due to an intercurrent viral infection. I felt he was in no condition to do justice to himself if he attended the Tribunal the next day and advised him of this.I have been aware for some time of the stress which he has been experiencing in relation to the forthcoming tribunal and I had referred him to a Counsellor whom he attended regularly at the surgery. He had no history of mental illness and I believe his symptoms are all stress related".We now turn to the hearing on 9th March 1994, when the order now appealed against was made. We understand that there was a hearing before the Industrial Tribunal from about 10.45am. to sometime before lunch, when Mr Cross made his submissions for the Council and then Ms Kelly replied on behalf of Mr Sandhu, who was not there. There is no suggestion in the Chairman's notes that any adjournment was offered to Ms Kelly after the Council's submissions had been heard. There is no suggestion that there was any formal notice given of a striking out application.The result of the hearing on 9th March was that the consolidated proceedings were struck out. At the conclusion of the Full Reasons striking them out, the Chairman said:
"We are satisfied that he has conducted these proceedings in a vexatious manner and that his application should be struck out. Given his failure to attend on 6 January and our finding that he chose not to, we also in the alternative dismiss his application under Rule 9(3)."
From that decision Mr Sandhu appealed in May 1994. An interlocutory preliminary hearing took place on 27th September 1994, when this Tribunal gave conditional leave for the Appeal to proceed to a full hearing and gave appropriate directions. The nub of Mr Sandhu's appeal is that justice was neither done nor seen to be done on 9th March when the Tribunal struck out his consolidated complaints. Ms Kelly has submitted on his behalf that it was wrong for the Tribunal to strike them out on either of the grounds that they did.The primary reason for which the proceedings were struck out was the reason that the Tribunal was satisfied that Mr Sandhu had conducted them in a vexatious manner. We first consider whether that decision was correct.Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 deals with the Rules of Procedure. The Miscellaneous Powers are set out in Rule 13. Rule 13(2) reads:
"A tribunal may- ... (e) subject to paragraph (3), at the any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, frivolous or vexatious; ..."

[Rule 13(3) reads:]

"Before making an order under sub-paragraph ... (e) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
It is quite clear from the narrative which we have given, that before the hearing no notice was sent to Mr Sandhu by the Tribunal before the hearing as required by Schedule (3). The Council's representative at the hearing used the letter of 7th March as a springboard for submission under schedule (2), in proceedings where Mr Sandhu had not the benefit of legal representation and his representations were not even offered an adjournment to consider the applications.Natural justice seems to us to demand that when a striking out application in consolidated proceedings alleging racial discrimination and constructive dismissal at a fairly short notice the person to whom the application is addressed should have the opportunity properly to consider the application and any evidence relied on in its behalf.We are firmly of the opinion that dealing with the manner in which the Chairman dealt with the application on 9th March under schedule (2) was in breach of the rules of natural justice and that the decision cannot be supported. We have seen nothing which could support the need for that application to have been heard on that day especially at such short notice to the applicant, where there was no time for a trained legal representative, to do justice to the case which might be presented on his behalf.In the course of submissions we asked Mr Pitt-Payne what he would have done faced with an application to strike out mounted in the way which the Council's was. He was constrained, very properly to tell us, that at least he would have sought an adjournment to take instructions from his client. Having seen him today, we are quite sure he would have gone a good deal further. If no proper adjournment had been granted, there would have been an immediate appeal to this Tribunal.We turn now to the other matter on which the Tribunal struck out the proceedings. That was because of the alleged failure to meet and comply with an order under Rule 9. We turn to the appropriate rule i.e.: Rule 9(3). This reads:
"If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."
Now, we have looked carefully in the course of this hearing at Rule 8(5) and Rule 4(3) and we are satisfied that that proviso does not apply here.There has been some debate as to whether the opening words of the rule means if neither the party or his representative attends a hearing then only then does the Tribunal have the powers set out in the remainder of the rule. We are satisfied that that is not what it means.The rule is obviously designed to take account of two situations. First of all, the failure to attend at the first date for the hearing and secondly the failure to attend at another part of the hearing.So it seems to us, that prima facie the Tribunal, faced with Mr Sandhu's non-attendance on 6th January, was entitled to make an order under the Rule. What the Tribunal did that day was to make an order which is set out above. Mr Pitt-Payne agreed that it was an order nisi, i.e. unless a medical certificate as specified was provided to the Tribunal by the date and time specified, the serious complaints made by Mr Sandhu would be dismissed without a decision on the merits.Now the first question which arises, is as to whether the order which the Tribunal made was sufficiently clear so that Mr Sandhu and his advisor knew what had to be done. To some extent, `the proof of the pudding is in the eating'; Dr Linnemann clearly had a copy of the order;on terms of her letter which accompanied her certificate suggested that she thought she had given a sufficient certificate for the purposes of the order with it, but the tribunal thought she had not, and as was apparent from the evidence, neither did Ms Kelly, Mr Sandhu's advisor.If a Tribunal makes an order on which there is to be a striking out if it is not complied with, in our judgement it behoved the Tribunal to make sure that the order was not, in any way ambiguous. There are ambiguities in the directions given in paragraph 1, a reference is made to a letter which is to embody a certificate. Paragraph 2 refers to "the said certificate", as does paragraph 3. What was wanted? A letter or a certificate? What is a letter? What is a certificate? What is a sufficient certificate? Had the certificate to use the actual words set out towards the end of paragraph 1?It is in all our experience that medical certificates such as that supplied by the Doctor, are common place; further a certificate that someone is unable to attend work is frequently accepted by courts and Tribunals as a certificate that somebody is unable to attend to give evidence. If an order nisi is made as it was here, the order must provide clearly what is wanted. It should not be left to the parties, their legal advisors and still less a medical advisor to construe it to discover what precisely the order requires.In dismissing Mr Sandhu's complaint for non-compliance. Paragraph 15 of the Reasons states:
"... The intention of the Tribunal was that the applicant's doctor should apply her mind to the issue whether there was a genuine health reason preventing the applicant attending on 6 and 7 January."
If that was what was wanted, then as a matter of fact, very arguably by her communications of 7th January Dr Linnemann supplied what was wanted. There was a medical certificate stating that the applicant was suffering from tension and viral illness and was unable to attend work from 4th until 10th January; she also provided a letter. She gave Mr Sandhu a certificate accompanied by a letter and in our judgement, with those documents no reasonable tribunal fairly considering the order and the material provided could reasonably conclude that the order which it had given was not complied with.However, if we our wrong on that, then we turn to consider whether there was other material before the Tribunal, whereby it could consider that the order had not been complied with.Mr Pitt-Payne reminds us that the Tribunal had had two days in which they had had the opportunity to observe the appellant in the witness box and seen his condition at the end of the next day. He reminds us that the order talks about 'a letter' signed by the medical practitioner and he points to some deficiencies which are self-evident on the document provided to suggest it was not a sufficient certificate. Paragraph 15 of the Decision prior to the passage we have already set out, reads as follows:
"It was against that background that we heard the parties' submissions today. At the outset, the Tribunal made it clear that, despite the use of the word "shall" in paragraph 3 of its order of 6 January, it would treat the matter as one of discretion taking into account all the circumstances. We are satisfied that the order of 6 January was not complied with. Ms Kelly suggested that the certificate supplied by the doctor was sufficient compliance because the word "certificate" is used in paragraph 2 of the order. Her letter of 12 January, however, shows clearly that she understood the requirement for a letter rather than a standard form of certificate."
What Ms Kelly understood from the order, is neither here nor there. It is what the doctor understood that mattered as she attempted to comply with the court order a copy of which she was given by Mr Sandhu.Omitting a sentence , the Reasons continue:
"... The terms of the doctor's letter of 1 March show no more than that the applicant was suffering from stress. Many litigants suffer from stress. It is an inevitable concomitant of litigation. Stress does not, however, provide them with an excuse to bring proceedings to a halt unless it really does impair their ability properly to take part and understand what is going on. Nothing in the demeanour of the applicant the previous day and nothing in the doctor's letter suggests to us that the applicant was prevented from attending on Thursday 6 January. We find that he chose not to do so because his case was not going particularly well."
We accept there is some force in Mr Pitt-Payne's submission that there a reason for Mr Sandhu's non-attendance in the eyes of the Tribunal, namely he was not doing particularly well in his evidence. But the fact is, and this is something to which the Tribunal paid no regard, the doctor in the certificate said he was suffering from "viral illness" and in a further letter of 1st March she again repeated the words "intercurrent viral infection". The letter of 1st March was sent to the Respondent. Mr Sandhu was given little or no notice of what this letter contained and neither he nor Ms Kelly were in the position on 9th March to take any steps to call the doctor, if it was known that the notice requiring her attendance had been dispensed with. It is very unsatisfactory in our view, for the Tribunal to look at the evidence as it did, by confining its attention to the letter of 1st March without in any way considering the letter of 7th January 1994.We recognise that there were facts from which on a literal construction of it the Tribunal could consider that its order had not been complied with, but given the overall consideration of the evidence of Mr Sandhu's medical condition at the time, we are satisfied that it was perverse to conclude that the order had not been complied with in the particular circumstances of this case.In the circumstances while paying tribute to Mr Pitt-Payne's powerful submissions our firm conclusion is that the Tribunal were wrong to strike out Mr Sandhu's application on either of the grounds on which it did. Accordingly we allow the appeal against the order which it made.Ms Kelly had asked that this matter be remitted for a fresh hearing before a different Tribunal in a different area, notwithstanding that there had been two days evidence taken. Mr Pitt-Payne took instructions on that application and has very properly and in our view correctly agreed that the only way that justice can not only be done but seen to be done is if Mr Sandhu's applications are heard by a differently constituted Tribunal. In the circumstances, we will allow this Appeal and remit the whole of his complaints for a fresh hearing before a differently constituted Tribunal. We do not think that we have jurisdiction to direct that it be heard other than in Leicester.