Hirst v Elmbridge Borough Council [1996] UKEAT 190_96_1110

EAT
Hirst v Elmbridge Borough Council
[1996] UKEAT 190_96_1110 · 1996-10-11

JUDGE P CLARK:

Mr Hirst was employed by the Elmbridge Borough Council ("the Council") as a contracts surveyor from 14 January 1991 until 25 May 1993 when he was dismissed, the Council say, on grounds of his lack of capability.He presented a case of unfair dismissal to an Industrial Tribunal on 20 August 1993 in which the grounds of his complaint were said to be:
"The appellant was employed by Elmbridge Borough Council until 25 May 1993 and had no disciplinary record whilst working there. In the circumstances of this case, it is felt that Mr Hirst was unfairly dismissed."
The Council entered a Notice of Appearance dated 28 September 1993, resisting the claim on the grounds of his poor performance in the supervision of several building contracts leading to financial loss to the Council.The matter came on for a substantive hearing before the London (South) Industrial Tribunal (Chairman: Mr John Warren and lay members) on 5 May 1995. The hearing was not then completed and was adjourned, first to 2 October and subsequently to 8 November 1995.On that third day of hearing the Tribunal, of its own motion, made an interlocutory order under its powers contained in Rule 4(1)(a) of the Industrial Tribunals (Rules of Procedure) Regulations 1993. It ordered the Applicant, then represented by Mr Cedenio, an Employment Adviser, to serve Further and Better Particulars of his grounds of complaint on the Council and on the Industrial Tribunal within 28 days of 8 November. It also adjourned the substantive hearing to 15, 16 and 17 January 1996. Written reasons for that order were sent to the parties on 12 December 1995. The purpose of the order for Further and Better Particulars, so the Industrial Tribunal indicate in their reasons, was in order that the Council and the Industrial Tribunal might know the nature of the Appellant's case, which the Tribunal observed, suffered from lack of proper preparation by his representative. The Tribunal also repeated a costs warning to the Appellant and his representative which had apparently been given during the hearing.Mr Cedenio, according to the Tribunal, although he appearing before us today, disputes this, indicated on 8 November that he wished to appeal the Tribunal's order for Further and Better Particulars to the Employment Appeal Tribunal.On 5 December 1995 Mr Cedenio faxed the Regional Office, applying for the order made on 8 November to be set aside. In that letter he indicated that he was aware that the order was one for Further and Better Particulars within 28 days of 8 November and set out grounds for his application to set aside the order.On 3 December the Industrial Tribunal wrote to Mr Hirst, the Appellant in these terms:
"I refer to the Tribunal's Order made at the hearing on 8 November 1995 confirmed in writing by Decision on 12 December 1995. A Chairman of the Tribunals has asked me to write to you.
Not only have you failed to comply but you have indicated that you have no intention to comply with the order.The Chairman is considering whether to strike out the Originating Application under power conferred by Rule 4(7) of the Industrial Tribunals Rules of Procedure 1993 for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing within 7 days of the date of this letter.The Chairman of the Tribunal will consider whether or not the Originating Application should be struck out at the beginning of the adjourned hearing on 15 January. You will be permitted to make representation at that hearing."On 10 January, Mr Cedenio tells us, he sent by fax a letter to the Regional Office of the Industrial Tribunals in which he first of all points out that he is the representative of the Appellant and then goes on to say this:
"With reference to the Tribunal's letter of the 3rd January 1996, it is not accepted by the applicant that he has failed to comply or that he has ever indicated that he has no intention of complying with the Tribunal's order."
Pausing there, it is quite apparent to us that the Applicant had failed to comply with the order whether one takes it from the date 8 November or from 12 December. The letter goes on:
"Despite not receiving the order in writing which was asked for at the Tribunal hearing on the 8th November 1995, an application was made to the Tribunal on the 5th December, 1995 to set aside the order, with reasons contained therein. To date we have not received acknowledgement of receipt of this letter or a response from the tribunal about the applicant's application.
In view of this and the subsequent decision sent to the applicant on the 12th December 1995, my client has instructed me that he wishes to appeal against the said decision of the Tribunal. Mr Hirst has also indicated that he is dissatisfied about the manner in which the Chairman of the Tribunal has conducted the matter to date and intends to raise this as a separate issue in his appeal. It is regretted that this action has to be taken but my client feels that his case has been prejudiced by the actions and conduct of the Chairman of the Tribunal.Under the circumstances, I believe it would be appropriate that the adjourned dates of 15th, 16th and 17th January 1996 be vacated until the outcome of the applicant's appeal is known."It seems to us that that letter was never put before the Chairman on 15 January. We say that because on 15 January the Chairman, sitting alone, ordered that the Originating Application be struck out under Rule 4. In giving reasons for that decision the Chairman says at paragraph 7 of the reasons that the Tribunal had not received any written representations from or on behalf of the Appellant between the letter of 3 January and 15 January. What is equally clear is that Mr Cedenio took no steps between 10 and 15 January to ensure that his letter had arrived and had been put before the Tribunal Chairman. He received no indication that the hearing fixed for 15 January had been vacated at his request and neither he nor his client attended on 15 January although the Council's representative and presumably, members of the Council staff did attend on that day.Thus it was on 15 January that the application was struck out and an order made under Rule 12 of the Industrial Tribunals Rules that the Applicant should pay £500 by way of costs to the Council.Against that background there are now two appeals before us by Mr Hirst. The first (EAT/190/96) is by Notice dated 21 January 1996 against the Tribunal's order made on 8 November 1995 (the first order), the second (EAT/302/96) by a Notice dated 3 March 1996 is against the Chairman's order made on 15 January 1996 (the second order).This is a preliminary hearing held to determine whether the appeals or either of them raise any arguable point or points of law which ought to go to a full hearing before the Employment Appeal Tribunal.The two appeals raise essentially four points. Dealing first with the first appeal, it is submitted that the order for Further and Better Particulars made on 8 November 1995 was unduly oppressive and unnecessary and offends the principles upon which an order for Particulars should be made set out in the judgment of Wood J in Bryne v Financial Times Ltd [1991] IRLR 417, 419.We have looked at the Tribunal's reasons for making that order and it seems to us that where a Tribunal on the third day of a substantive hearing is unable to discern the nature of the Applicant's complaint, it is an unusual but in this case understandable course to get him or his representative to put the nature of his case on paper. We bear in mind that Industrial Tribunals are masters of their own procedure; that the conduct of Tribunal hearings is very much within the discretion of the Tribunal itself. We can only interfere with an interlocutory order of this sort if it offends basic legal principles or if it is otherwise perverse in the sense that no reasonable Tribunal properly directing itself could make such an order.In all the circumstances of this case we are unable to say that this order was so oppressive or unnecessary or otherwise to be characterised as perverse in such a way that any arguable point of law arises under this head of the appeal.Secondly, it is said that the Chairman gave the appearance of bias in the way in which he conducted the hearing up to 8 November and in support of that contention the Appellant has sworn an affidavit on 4 October 1996 which is before us.We have read and considered the matters raised in that affidavit and suffice it to say that we regard this as no more than the sort of robustness to be expected from an Industrial Chairman faced with what he judged to be a poorly prepared case and in our view this further ground of appeal again raises no arguable point of law to go to a full hearing.Turning to the second appeal which is directed to the decision to strike out the Originating Application on 15 January 1996, again two points are taken. First, Mr Cedenio submits that the Chairman had no power to strike out under Rule 4(7) of the 1993 Rules of Procedure when sitting alone. We cannot accept that submission. Section 128(5) of the Employment Protection (Consolidation) Act 1978 provides that:"Regulations may provide that in such circumstances as the regulations may specify any act required or authorised by the regulations to be done by an industrial tribunal may be done by the person specified in subsection (2A)(a) alone." [that is the Chairman].Those regulations are The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The power to strike out for failure to comply with an order to serve Further and Better Particulars is that contained in Rule 4(7) of the Rules of Procedure to be found in Schedule 1 to the 1993 regulations.Paragraph 13(8) of those rules provides:
"Any act required or authorised by these rules to be done by a tribunal may be done by a chairman except - (a) the hearing of an originating application under rule 8; (b) an act required or authorised to be so done by rule 9 or 10 (c) the review of a decision under rule 11."
It is quite clear to us that the act of striking out an Originating Application under Rule 4(7) does not fall within any of those exceptions and accordingly it is something that may be done by a Chairman alone.Mr Cedenio drew attention to IDS briefing which referred to a proposed bill to come before Parliament which indicated that a Chairman sitting alone would have power to hear a case involving written particulars and he submitted to us that that included matters involving Further and Better Particulars. In fact, as we read it, that refers to complaints under section 11 of the 1978 Act, that an employer has failed to provide particulars of the terms and conditions of the employee's employment and has nothing to do with orders for Further and Better Particulars with which we are concerned. It follows in our judgment that the Chairman sitting alone had power to strike out under Rule 4(7).The final point that is taken is that in all the circumstances the decision to strike out was perverse. This Tribunal had reached, in its own word, a point of desperation. It sought to obtain details of the Applicant's case and it made an order which we find it was empowered to do to that end. Having made the order Mr Cedenio on behalf of the Applicant sought first to have it set aside; then indicated that he would appeal against the order although no appeal was lodged before the application was struck out on 15 January 1996. He took no steps to discover whether his fax of 10 January had reached the Tribunal and in particular he made no attempt to discover whether or not his application for a postponement of the hearing fixed for 15 January had been received and whether it would be granted, and then simply did not turn up on that day. Far from being a perverse decision we can well see why the Chairman felt driven to take the course which he did.In all the circumstances we have reached the conclusion that neither of these appeals discloses any arguable point of law and accordingly they must be dismissed at this stage.