McFarlane v Rendel Palmer & Tritton [1996] UKEAT 1032_95_0606

EAT
McFarlane v Rendel Palmer & Tritton
[1996] UKEAT 1032_95_0606 · 1996-06-06

JUDGE HULL Q.C. :

This is an appeal to us by Mr McFarlane who is a professional engineer. He is a gentleman who now I think is aged 30. He was employed by the well-known firm of consulting engineers Rendel, Palmer & Tritton from 15th August 1988 until 6th February 1995. He had in December 1994 been out in Kuwait.He alleged that he was dismissed by his employers on 6th February 1995. He presented his IT1 on 7th February 1995. In their answer the employers said that he had not in fact been dismissed but had resigned. His case I will refer to by reference to the IT1.It was that he was a professional engineer who was hoping to become a corporate member of the Institute of Civil Engineers and that to do that he had to acquire, in addition to his academic qualification, experience in all the main fields of civil engineering. In particular he said that although he had some experience of course during his seven years with the respondents, he was still lacking in experience in design work and in certain other departments of the civil engineers' profession, including bills of quantity and accounting. When one looks at his application it is quite clear that that was not the limit of his complaints or indeed an accurate and sufficient way of describing them.There is no doubt, as the respondents say in their answer, that they had an obligation to him to provide him with relevant and proper experience. They say that it was of course limited by what they were doing, because they are like other professional men in a commercial environment, and if they did not have work they could not show that work to their trainees. But when one looks at the application, it is plain that the allegation made is in truth of bad faith. He said:

"I also have unwritten evidence that

1) I am being "blackballed" over my employers safety performance in Kuwait (where I worked for 3 months and returned 2 years ago)2) I am being wilfully misled into believing that my employer will provide the requisite "design" work when, in fact, they will not.Having tried to address these points reasonably for the past 2 years I have been left with no alternative but to resign."In other words, it is perfectly plain that he was saying that he was constructively dismissed because the basis of his employment was undermined through the bad faith of his employers who blackballed him, and were wilfully misleading him. So that was the nature of his complaint. Not merely that he was not being properly trained, but that he was being, if this is the right word, victimised, not dealt with in good faith. Those were the circumstances of the complaint.There was an interlocutory hearing on 10th May 1995, there was a letter of 23rd May 1995 containing the orders made and the agreement which was reached at the hearing before the Chairman of Industrial Tribunals and it was signed on her behalf by Miss Hendricks the Regional Secretary of Tribunals.I am not going to go right through what was agreed and directed. The letter sets out that the applicant's father had attended on his behalf and Mr Shepley, solicitor, on behalf of the respondents. The following appears at paragraph 4:

"4. Particulars

No further particulars were sought from the Respondents. However, the Applicant was ordered to provide the following Further Particulars, to be provided on or before 16 June 1995:(a) Of the terms of the contract of employment or ancillary document alleged to have been breached.(b) Of the breach or breaches, detailing the nature of the training and its availability when allegedly not provided."Pausing there, it has been put to us today by Mr Symonds, appearing on behalf of the appellant, that in fact this was essentially of a breach of contract case. It was for the respondents to show, if they could, that having failed to provide the experience that was through no fault of their own, and that either the contract had been frustrated perhaps, or that there was an implied term that they would only provide such training as was available. But we reject that submission. It is not merely a breach of contract case, it is an allegation of bad faith, and that is why it appears to us that the Chairman made the order in the form in which it is. "Availability" was essential, because of course in the view of the tribunal, and certainly one would think in anybody's view, that would be the essence of it, that the training was available, the experience was available but it was not being provided to this unfortunate appellant because of the bad faith of the employers.Then they went on to say that there was to be discovery by agreement. That was the order they made.Thereafter, there followed a long correspondence between the appellant and the tribunal and to some extent the respondents. The first letter which is in the appellant's bundle which he has shown is on 11th June 1995, dealing with the order for particulars, he wrote:
"Further to the above pre-hearing, I have now written to the Respondent's Solicitor (RS) requesting several further particulars; I asked for them to be provided to me on or before 3 July 1995 ..."
So now he, himself, is asking for particulars.
"4a & 4b. I have forwarded the documents required by the Respondent to the RS as requested ...
5. I have despatched the documentation that I wish to be enclosed in the `bundles', to the RS. I might add that subject to point 4 above, I may wish to include further documentation as required."Later on in his letter, on the next page, he says after quoting from the Industrial Tribunal's procedure booklet under the heading "Evidence" where it is provided:
"It will be helpful ... if each party sends to the other and to the tribunal ... a list of documents which they intend to produce at the hearing."
"Will you please confirm therefore, in writing, that this would not PRECLUDE any other documents produced on the day of the tribunal from being accepted as evidence; documents that were not included in `the bundles'."
Now, were it not for what followed, one might think that that was rather a naive request, but it is perfectly clear from the many letters which follow thereafter, that in fact it was an important part of the appellant's case not to reveal everything that was in his hand; whether in the way of documents, or in the way of particulars, as he makes plain as time goes by.He wrote again, this time to Mr Shepley, the solicitor for the respondents, on 12th June 1995; referring to paragraphs 4a and 4b of the order. Then he says, and this would send an alarm bell ringing in any solicitors' office I should have thought:
"I will show at the full Tribunal that such work was available during the period March 1993 to March 1995.
In addition, I will also show that I was prohibited from working in any department outwith the Land Transport Department (LTD), regardless of the availability of work ... AND that the Respondent had no intention of providing me with the required training within the LTD! Both points breach the above mentioned I.C.E. "Form of Undertaking.""Now this was a plain statement, not merely that the respondents were acting in bad faith, but that this was going to be shown on the day of the hearing.After sending a list of documents, Mr McFarlane wrote:
"In addition to these submissions, I may wish to add further documentation to the `bundle' ;"
and says that that is dependent on such particulars as the respondents provide to him.On 15th June 1995, there came the first of the warning shots from the tribunal in reply to Mr McFarlane's letter. Miss Hendricks on behalf of the tribunal wrote:
"Thank you for your letter of 11 June 1995 and enclosures which have been referred to the Chairman of Tribunals. She has asked me to inform you that you appear not to have complied to her colleague's Order of 23 May 1995 when you were asked to supply on or before 16 June 1995 the terms of the contract of employment or ancillary document alleged to have been breached and in respect of such breach, the nature of the training and availability when allegedly not supplied. Failure to comply with an Order of the Tribunal can result in the Originating Application being struck out. The Chairman extends the time by which you much comply with this Order to 7 days from the date of this letter."
That was the first of the warning shots which were fired, and one would hope that if the appellant after that was in any doubt about the matter he would have written and asked for assistance in the matter.What he did write was the first of a number of letters which might be called combative. In his letter of 27th June 1995:

"Dear Ms Hendricks

Case Number 09808/95....As far as I am concerned I supplied the Respondent's Solicitor (R.S.) with explicit details of the "Further Particulars" before 16 June 1995. I DID NOT supply the RS with actual copies of "the terms of contract of employment or ancillary documents" simply because the Respondent should already have copies of them. This I may add, was view wholeheartedly supported by the Chairman at the Pre-Hearing Review!With regards to "the nature of the training and availability when allegedly not supplied"; there is no ONE magic document that can supply the answer to this. Again, the RS now has details/copies of the documents that I shall be submitting as part of my case, which will be clearly stated at the FULL tribunal hearing."The case should, if the particulars had been answered, have been clearly stated by those , of course. Then he went on:
"In response to your second paragraph. I must state that it is not my intention to surprise the Respondent at the full hearing."
A remarkable thing to say perhaps, because the letter had not charged him with an intention to surprise but it is perhaps significant:"I must point out that if it wasn't for the Respondent's `delay tactic' request for a pre-hearing review, I could have simply turned up at the full hearing bearing my documentary evidence, as set out in your own guidelines!! Again, I must state that I am being "... helpful ..." I will not be more than that!!Also, I must make it clear that my letter of 11 June did NOT request "advice" on the agenda/format of a hearing. I simply asked for information. The two are distinctly different."Then the respondents' solicitor wrote to Mr McFarlane on 21st June 1995, and part of that letter says:
"I have also received a copy of the Tribunal's letter to you of 15th June. I have not yet received the further particulars from you. May I also say, in view of the second paragraph, that if documents are produced by you on the day of the hearing, and we have insufficient advance notice, then we may wish to apply for an adjournment. As was mentioned by the Chairman to your father at the 10 May hearing, the purpose of proceedings is not to surprise your opponent. If we are put to expense and delay we reserve the right to apply for costs."
There is the respondents' solicitor explaining, albeit shortly, why the particulars are wanted and why they have been ordered.On 27th June 1995, the tribunal wrote to Mr McFarlane:
"Thank you for your recent telephone enquiry. The case file has been referred to the Chairman. She has instructed me to inform you that you must state which terms of your contract of employment or other document you allege has been breached, how it has been breached, and if the term related to something for which training is required, what training was not supplied."
There was a letter of 29th June 1995 from Mr McFarlane writing to the Regional Office:
"Now that I have received a reply to the question that I first raised with you on 16 June 1995 (some 13 days ago in response to your letter dated 15 June 1995), I just state that the information you say appears not to have been submitted by me as ordered, has in fact been received by the Respondent's Solicitor - the Respondent should have copies of both:
1. The "Conditions of Contract of Employment"; and2. The Institution of Civil Engineers' "Form of Undertaking."1. Evidence I give will clearly show that the clause on "Grievance Procedure" was breached; this is evident if the Respondent takes the time to read the documentary evidence that I have provided.2. This was breached in so much as I was not afforded "... the opportunities for Approved Training ...". Again, the Respondent is VERY MUCH AWARE of the training I was in need of and was, therefore, outstanding. They have the information at their fingertips in the form of my training records regarding my "I.C.E. Core Objectives" which is a document forming part of my training agreement. The SOLE purpose of this document is to highlight the training that is required, undertaken and outstanding!!... Copies of these documents and my other documentary evidence were sent to you some months ago, but were returned to me. As the "Further Particulars" were requested by the Respondent (purely, in my opinion, as a delay tactic), I saw no reason to send you further copies of the documents. These will of course be included in the "batches" being prepared by the RS at this moment."That was his attitude not to a request from the other side, but to an order of the tribunal.On 5th July 1995, the Regional Office wrote again:
"2. The Further Particulars provided in response to the order at paragraph 4(a) of the 23 May 1995 letter quotes from Part 1 of the I.C.E. Form of Undertaking. The Chairman directs that you either confirm that the quotation is the only provision breached or give particulars (i.e. details not documents) of any other provisions breached by the Respondents.
3. The order at paragraph 4(b) asked for details (not documents) of the nature of the training not provided and when it was available but, notwithstanding its availability, not provided. It is not clear to the Chairman whether you have particularised this on the second page of your letter of 12 June to the Respondents' Solicitors. The answer contained in the last paragraph on the first page of your letter of 29 June, "This training that was not supplied comprised preliminary "design" work", is not sufficient. You must either confirm that there are no further particulars to be provided beyond what is in the 12 June letter or provide the details as ordered.4. The Chairman has directed that you reply to these matters within 7 days."One would have thought that nothing could be plainer than that.Then, after an interlocutory order for inspection of documents, on 6th July 1995 Mr McFarlane wrote again. I will not read all this, but it is clear that he was more defiant and intransigent than ever. Indeed he accused the tribunal of behaving in a one-sided way on the second page of the letter.On 14th July 1995, the Regional Office wrote to Mr McFarlane a long and careful letter at the instigation of the Chairman. Amongst the things which are set out in that letter:
"2. He [ The Chairman ] notes that at the Interlocutory Hearing on 10 May 1995 attended by your father on your behalf, you were ordered to provide Further Particulars on or before 16 June 1995, over five weeks' after the hearing. Part of the order was that you provide Further Particulars "of the breach or breaches, detailing the nature of the training and its availability when allegedly not provided"."

[ I have already explained the obvious importance of that. ]

3. By letter of 11 June 1995, [ They then refer to the letter of 11th June. ]... However, the Chairman who dealt with the Interlocutory Hearing is mindful of the fact that you are acting in person with the assistance of your father who is not a lawyer and that you have been abroad for some time. In those circumstances the Chairman requires you to provide the further particulars ordered within 7 days, otherwise, unless you are able to show cause why a striking out order should not be made, your Originating Application will be struck out. ..."Now that letter is as plain a warning shot, one would have thought, as could be received by any litigant.On 17th July 1995, Mr McFarlane wrote another long and defiant letter. He said amongst other things:
"I totally refute that I have disregarded the letters from the tribunal. Why would I jeopardize my own case? It was I who applied for a tribunal because of an injustice served on me by the Respondent. I wish to attend the FULL tribunal at which my case will be shown to be justified. I have no doubt that I will win. What gain do I personally stand to make by being obstructive? I have absolutely not wilfully refused to comply with the order, ..."
He then says towards the bottom of that page:
"Unfortunately for me, legal terminology seems to be the apparent mode of normal correspondence on your part, and I will not be pressured into seeking professional legal advice which surely goes against these principles.
With regards to patience. I can only thank Mr Carstairs for his. However, I have had to make numerous telephone calls to try and resolve what I feel is a relatively simply matter, without all this unnecessary and time consuming correspondence for both of us."Then in the next paragraph he says:
"I spoke to a colleague of yours today ("Belinda") who was most helpful. I now understand that if I provide the enclosed (Appendix A) with this covering letter for the attention of Mr Carstairs that this matter will not conclude with my application being struck out. The chairman stated in earlier correspondence that the Tribunal would be decided upon oral and other evidence; in view of that I would kindly ask him to take this into account when considering my position."
(Appendix A, amongst other things, contains a schedule of the training objectives and core objectives for a trainee engineer, or an engineer who hopes to become a full member. Appendix A, as well as that, includes copies of various documents.) Then on the last page of the letter he writes:"You will see from the documentation in Appendix A that it is CRYSTAL clear what training (in some detail!) was outstanding during my time with the Respondent. If the RS is asking for this information, by default it is obvious that they do not have a copy of my "Core Objectives". This point/argument forms part of my case! Every effort has been made by myself with regards to resolving the matter of my lack of training (I refer to my letter to you of 18 April 1995).In light of this, I must insist that the respondent is not provided with a copy of Appendix A under any circumstances. I suspect that they do not know exactly what training was outstanding for me. As a company `supposedly' operating a "structured training programme" with a Training Agreement system for graduates, THEY SHOULD DO!"So here is a man who is alleging that the respondents have treated him in bad faith and who is sending to the tribunal a large number of documents, and insisting that those documents which he says are material to his case, are not to be passed on to the respondents. In other words, his attitude to the litigation is nothing short of tricky. To send to the tribunal documents which it is said are not to be shown to the other side is clearly and obviously improper, one would have thought, to anybody who thought about it for a moment.That is the correspondence to which I have referred, and I now must come to what happened about it.The striking out order of which complaint is made is at page 26 of the tribunal's bundle. Again, I will not read the whole of this, but the Chairman, Mr Carstairs, after setting out the facts and referring to some of the correspondence, and in particular the warnings which had been sent to the appellant, and referring to the letter of 17th July, which I have just read, said:"12. It is the Applicant's case that the Respondents were in breach of contract entitling him to resign without giving notice so as to amount to a dismissal in accordance with section 55(2)(c) Employment Protection (Consolidation) Act 1978. He relies on a breach of his "three year training contract" and therefore the Respondents are entitled to know what training was available and when it was available which was not provided by them in breach of the contractual agreement between the parties. The Applicant has continuously failed to provide the Further Particulars to enable the Respondents to know the case against them. It is clear from the correspondence that the Applicant is an intelligent man not daunted by the Industrial Tribunal. [ That is a sentiment expressed with very great restraint I should have thought ]13. The Further Particulars not having been provided and the Applicant not having shown cause why the Originating Application should not be struck out, I order that the Originating Application be struck out."So there, after three or four warnings in varying degrees of urgency, and letters, (I have not read them all) showing an extraordinary degree of forbearance and a conciliatory approach by the tribunal, yet insisting, as it had to in the interests of justice, on its own order, there eventually what had been long threatened took place; and the application was struck out.Mr McFarlane asked for the decision to be reviewed, and that was considered first of all on 3rd August 1995 at pages 41 and 42 of our bundle. The Chairman, Mr Carstairs, says:
"3. The Applicant alleges that he was given two assurances over the telephone that his Originating Application would not be struck out. He claims that a clerk, Ms Bennett, told him that if he provided certain documentation, a Striking-out Order would not be issued. He continues that another clerk, Ms Hendricks, said I was satisfied with the documentation that he had sent to the Tribunal.
4. I am not willing to accept what he alleges he was told by the clerks."So he refused to review the decision which he had reached.Mr McFarlane wrote on 10th August 1995 to the tribunal, that is on page 46 of the bundle, and he asked for the matter again to be reviewed. He said:
"My grounds for applying for such a review are in 3 parts:
1. The decision was wrongly made as the result of an error on the part of the tribunal staff.2. The decision was made in the absence of a party or person entitled to be heard;"That apparently refers to the fact that he was not present. It is said on his behalf that he asked for an oral hearing. That to us does not appear to be made out. He complains that he was not there, but he had not, in our view, asked for an oral hearing. He had expressed himself at remarkable and sometimes at offensive length in his correspondence with the tribunal.The Chairman then in response to that did consider the matter again. At page 43 in the bundle on 8th September 1995 he considered again whether to review the matter. He dealt again with the allegations that members of the staff of the tribunal had assured Mr McFarlane that all was well. In paragraph 3 of the decision the Chairman said:
"3. In the third paragraph on the third page of his letter, the Applicant refers to various telephone conversations between himself and Miss Bennett. Miss Bennett has confirmed speaking to the Applicant and, after speaking to me, explaining to the Applicant that he had to provide information not documents. The Applicant advised Miss Bennett that he had a training documents which had all the information asked for and he asked if this would be satisfactory. Miss Bennett, again after speaking to me, explained as directed by me that if the document had all the information ordered to be provided, it would be satisfactory to submit it but Miss Bennett reiterated, again as directed by me, that it would have to have all the information in it. She also advised the Applicant that the document should be supported with a written explanation because if the Applicant did not send in what was required, the likelihood of his complaint being struck out was very high. This was stressed by Miss Bennett and repeated on two or three occasions.
4. In the fourth paragraph on the third page of the Applicant's letter, the Applicant refers to his telephone conversation with Ms Hendricks. Ms Hendricks confirmed that the applicant telephoned and asked her if the documents he had sent had been received and placed before me. Ms Hendricks confirmed that they had been. The Applicant then asked her if the document were satisfactory. Ms Hendricks checked the file and reported that the documents had not yet been considered. Ms Hendricks advised the Applicant that he would hear from the Tribunal once the documents had been dealt with regarding whether or not they had been satisfactory.5. I accept the accounts given by the Clerks. ..."So having considered the matter further, the learned Chairman again refused to review his decision.The appeal to us is against first of all the order to strike out and secondly, the refusal to review the decision.The first point to note is that all these orders and directions were made in the discretion of the Industrial Tribunal. That is a discretion with which we are of course exceedingly reluctant to interfere unless we are satisfied that it has been exercised on a wrong basis or is manifestly unlawful, in the sense of being a discretion exercised in a way in which no tribunal could properly exercise its discretion. That is all the more so when we are dealing with interlocutory orders made by the tribunal; because the responsibility is cast on the tribunal and on nobody else to see that the cases before them are properly tried. It is their responsibility and not ours to say how they are to approach that task and how to exercise their discretionary powers in the interests of justice. Here, there was plenty of material on which the learned Chairman was well justified in making the order for particulars that he did. We accept that a person against whom such an order is made, particularly if he is a lay person, may be in some confusion as to the exact meaning and importance of the order.It is now suggested by Mr Symonds, who puts the matter tactfully and well, that really the right thing to do would have been for the Chairman to hold an oral hearing for the purposes of explaining his order to the applicant. The applicant is of course a young man professionally qualified, not inexperienced in matters of commerce in his profession and he had the advantage of receiving a number of very careful and very considerate letters from the tribunal, both at the instigation of the Chairman and (with regard to his complaints about administrative matters) from the Administrator. If he had said he did not understand those matters, if he had written a conciliatory letter himself, saying "I am afraid I am confused and I think that I am not complying with your order, or you say I am not complying with the order, because I have not understood it properly", I have not the slightest doubt from all we have seen that he would have received a careful and proper reply to that. He did no such thing, he not merely wrote intransigent and discourteous letters, sometimes contemptuous, but, in addition, he repeatedly suggested that just the mischief that the order was directed to prevent was going to be sprung. That is to say that documents would be produced and evidence given which would take the respondents by surprise. That was a repeated suggestion. What at first one only suspected becomes perfectly clear as it goes along, that he wished to play his cards close to his chest, just in the matter where he should not. Because he was alleging bad faith, it became him first of all to say exactly what his allegations of bad faith were and the nature of his case on those to enable the respondents to prepare their case, and of course later to comply with the court's order which was clearly made with that well in mind. He did not merely fail to comply with the order, but he in terms refused to comply with it. I do not think I have ever seen in the course of my experience, any set of such obviously intransigent letters answered so patiently and courteously by a court which is being held in contempt by the person concerned.The question is, was it within the legitimate exercise of the discretion of the Chairman in those circumstances to strike out the application. We have heard a great deal, not by any means ill-founded, to the effect that the applicant is a young man with no legal training and is entitled to expect the tribunal to be careful of his interests, that striking out is a drastic remedy. We think that these are well founded submissions so far as they go. But the tribunal of course has to exercise its powers not for the purpose of punishing or for the purpose of vindicating its own dignity or anything of that sort, but for the purpose of doing justice to both sides. If one party chooses to make allegations of bad faith against another party, he will be expected by any court or tribunal which is doing its job properly to come up with proper particulars and to be frank himself and to say exactly what he relies on for the suggestion that the employers were deliberately refusing to provide him with the training which he was entitled to expect as a young professional man. So far from that, he not merely did nothing of the sort, but failed to comply with the court's orders, and as I say wrote defiant and discourteous letters.In those circumstances, we ask ourselves was it within the legitimate exercise of the learned Chairman's discretion to strike out the claim on the basis that in view of the appellant's attitude it simply was not possible to do justice between the parties? We are all of the opinion that it was well within his discretion. The tribunal has only a limited range of weapons in seeking to ensure justice. It could of course have elected to go to the hearing and then have said, the moment something was sprung out of the bag, "well this is unfair"; that would have involved the respondents in costs, delay and inconvenience.The tribunal had chosen to make an order. It was up to the tribunal to see that that order, if it was a just one and was not appealed, was insisted upon. Orders which are not insisted upon if they are not complied with are worthless to the parties in whose interests they are made.It was indeed in everybody's interest that the allegations being made against the employers, and one must remember they are a reputable and well-known firm of professional men, should be made plain. What was the "blackballing", what was the bad faith, what was the work that was available and was not being shown to this trainee out of the bad faith of the respondents; but that was not done.Then the appellant, who seems to have been treated with great courtesy on the occasions of the telephones calls, relied on those and put those before the Chairman. It is said on his behalf that in considering whether to hold a review, the Chairman should again have held a hearing at which he heard what the applicant had to say himself about those matters - again a matter of discretion for the Chairman. He had the allegations which were made in the letters that I have read. So he sent for the members of staff concerned and he asked them exactly what had passed. It would indeed be a remarkable thing if members of the staff who had been given clear instructions by the Chairman went and said something quite contrary to what they had been told. The Chairman though did ask them exactly what they had said and set it out in his decision. Having dealt with that, he said that he adhered to his decision not to review the matter.We think that that again was a matter well within his discretion. It may well be that a different tribunal or a different Chairman would in his discretion have chosen different ways to make sure that justice was done and made different orders. It might well be that a different Chairman would have said "I wish to have a hearing to hear what is said on both sides." These are all matters of discretion. But having looked at what has been done in this case, we are unable to find any trace of an improper exercise of discretion. On the contrary, we think that the tribunal went far beyond the call of duty, if we may put it like that, in dealing with the matter and showed great fairness and forbearance in the face of considerable provocation. We think the Chairman dealt with the matter faithfully and in accordance with his judicial discretion and in a way with which we are quite unable to interfere.It follows therefore that in our view, all of us, this appeal to us against those matters must be dismissed.