Fennell v Royal Mail [1997] UKEAT 1100_96_2101

EAT
Fennell v Royal Mail
[1997] UKEAT 1100_96_2101 · 1997-01-21
MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether the Notice of Appeal in this case discloses an arguable point of law. This appeal is lodged first against the tribunal's decision that the applicant's application to the tribunal be struck out; and second, against a review of that decision by a subsequent decision entered in the Register on 26th September 1996.In the review decision the history of the matter is set out with considerable care and at some length. We take the facts from it. The applicant had made a complaint of constructive dismissal, sex discrimination and non-payment of bonus. The essence of her complaint on sex discrimination was as follows:"Following a complaint of sexual harassment, management failed to deal with the matter in accordance with their own procedure. In fact the manner in which they did deal with my case affected my health to such an extent that I found it impossible to continue working for Royal Mail." [ Who are effectively the respondents to the application ]The Royal Mail, when they were sent the IT1 requested, and subsequently a tribunal ordered, further particulars of the grounds on which she relied. In our judgment that was an order which was eminently sensible. Although the Industrial Tribunal procedure is informal, it is important before they embark on a hearing that a tribunal has before it a sufficient statement of the facts and matters on which the complainant relies, to enable them to conduct the proceedings with clarity, and to ensure that the issues of fact are correctly addressed. The order for particulars was, as one would have imagined:
"Full details of all the facts and matters (giving dates as far as possible and specifying the persons involved) on which you rely as constituting: (a) constructive dismissal (b) and sexual harassment

and that by the same date you send a copy to this office."

The note on the Order said:
"Failure to comply with this Order may result, if you are the Applicant, in your application being dismissed in whole or in part."
It also said:
"The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but only do so for good cause. Any such application should be made to this office before the date mentioned above, giving reasons for the application."
The time limit for compliance was specified to be within 14 days; and that Order was made on 21st December 1994.The tribunal received on 5th January 1995 a letter from the applicant's representative which simply listed the person involved in the alleged harassment and the investigation of the harassment, but there were no particulars given of the nature of the alleged harassment; of any particular incident on any particular date. Plainly that was not a proper compliance with the Order which had been made.The matter was being dealt with by the applicant's union. It is our experience in the Employment Appeal Tribunal that union representatives, often with great competence, deal with complaints on behalf of their members in a professional manner. Professionalism is to be expected from those who hold themselves out as capable of acting as representatives for their members as trade unions do.On 25th January 1995 the Regional Secretary, on the instructions of a Chairman, wrote to the applicant's representative pointing out that the letter was not sufficient compliance with the Order that had been made. It said:
"The Applicant's representative must set out in narrative form the details ordered."
Again, we see nothing wrong with that, indeed, we think that was eminently sensible. A further 14 days was given for compliance. But no further particulars were received. Therefore on 14th March 1995 a notice was sent to the union saying that the Chairman was considering whether to strike out the Originating Application for non-compliance. Nothing happened.On 30th March 1995 the tribunal received a letter from the applicant herself saying that her representative was a particular person at the union, and asking for a copy of the letter to be sent to him, and he was put on the record as her representative. The Chairman considered the situation and decided not to strike out at that stage, and a letter was sent to Mr Furey, the union representative, on 5th April 1995 together with a copy of the Order of 21st December 1994 requiring him to comply with it by 17th April 1995 and warning him again that consideration would be given to striking out the applicant's claim.It was not complied with by 20th April 1995. No communication had been received from the applicant's representative, and so a letter was sent on that day which was copied to Mr Furey. In that letter it said:
"... the Chairman notes that you were given until 17 April 1995 to provide further and better particulars of your claim, but none have been forthcoming. In view of the fact that you are now represented, she is extending time for compliance with the Tribunal's Order to 30 April 1995, but asks both you and your representative to note that if you do not comply with the Order by that date, you risk having your Originating Application struck out."
Those particular were not provided, and on 9th May 1995, the respondent applied to have the originating application struck out. By a letter of 11th May 1995, notice was given, yet again, to the union representative that a Chairman was considering whether to strike out the originating application and invited him to give reason why not within 14 days. No reply was received from him. The Tribunal Clerk spoke to the applicant on the telephone, and on 18th May the applicant wrote to the tribunal, as the tribunal set out at paragraph 10 of their decision.At paragraph 11 they record the fact that that letter was followed by a letter from Mr Furey dated 24th May 1995 saying that he had indeed complied with the Order, and enclosed a copy of a letter which he said he had sent on 28th April 1995. The Chairman who was then dealing with the case took the view that there had not been compliance with the Order, and she instructed the Regional Secretary to write the letter of 26th May 1995 which she did, and in that letter it was said:
"She [ the Chairman ] also instructed me to inform you that she is dissatisfied with your amplification of the Applicant's case, she notes that a number of documents were sent by Mr Conway to the Tribunal on 4 January 1995, but as the Tribunal stated in its letter of 25 January 1995, it is not enough for representatives to send copy documents; the Applicant's claim must be set out in narrative form and state which facts relate to which claim. She therefore is allowing you a further fourteen days from today's date to comply with the Tribunal's Order."
The Industrial Tribunal Chairman in the decision continued as follows:

"So, again the Tribunal did its best to focus Mr Furey on what was required."

We regard that comment as justified.Mr Furey asked for an extension of time. He did not query what was required of him or assert, as was subsequently asserted at the hearing, that the letter of 18th May 1995 which had been sent, constituted compliance. On the contrary, that letter set out various reasons why Mr Furey was too hard pressed to prepare particulars. The Chairman, generously in our view, granted a further extension of time to 30th June 1995. There was non-compliance. By a letter of 2nd August 1995 the tribunal wrote to the applicant's representative saying yet again that they were considering striking out the Originating Application and inviting him to give reasons why not within 14 days. That was responded to on 15th August 1995 in Mr Furey's absence on holiday, saying that he would be back on 21st August 1995, and would not be able to send particulars until after that date. Nothing happened. The tribunal by a letter of 11th September 1995 again proposed striking out and invited the applicant's representative to show cause why not within three days. His reply was enclosed in a letter of 19th September 1995, not within the three days, and in that letter he said that he had on two occasions responded to the Order for further particulars, the last time being 28th June 1995. That is a letter which he asserted he had written to the Industrial Tribunal, but which had never been received by them. Indeed it was not the first letter that he alleged had been sent but had not been received. The tribunal commented:
"The correspondence begins to read like a dialogue of the deaf and certainly it appears that the Applicant's representative had no intention of complying with the Tribunal's Order. It is quite clear from the exchange of the correspondence and of the response to the Tribunal's letter that Miss Fennell's representative could not have thought that the Tribunal was satisfied that he had complied with the Order of 21 December."
In view of Mr Furey's contention that he had written on 28th June 1995, the Regional Secretary wrote on 13th October asking for a copy of the letter. On 15th December 1995 the Regional Secretary sent a chasing letter saying that the Chairman would consider striking out the case unless the copy was received within seven days. On 9th January 1996, Mr Furey asked for an extension of time to comply and for copies of letters from the tribunal dated 13th October and 15th December 1995, which he said he had not received from them, despite the fact that the letter of 15th December had been correctly addressed. Those were then sent to him on 29th January 1996, in a letter from the Regional Secretary to Mr Furey:
"I enclose copies of the correspondence you requested in your fax of 9 January 1996. As far as this office is concerned you have not provided the particulars ordered on 21 December 1994. If you have in fact done so, please send us a copy of them immediately. If you have not previously provided them, you must do so forthwith."
Nothing happened and no particulars were received.On 26th February 1996, by an Order sent to the parties on 28th February 1996, a Chairman struck out the Originating Application for failure to comply. The tribunal note that on 5th March 1996, they received a letter from the solicitors for the trade union setting out what they called their perception of the sequence of events.Paragraph 15 of the decision says:
"15. The Regional Chairman directed that a full Tribunal should consider the Applicant's application for a review of the Striking Out Order. On the day of the hearing of that application, the Applicant's representatives were not able to produce a copy of the particulars dated 28 June which they alleged had complied with the Order and which they said had been sent on that date to the Tribunal. Nor did they produce any other particulars."
Under the Industrial Tribunal Rules, Rule 4(7) expressly empowers a tribunal, where there has been a failure to comply with an order for further particulars, to strike out the whole or part of the originating application, but a tribunal shall not strike out or direct unless it has sent notice the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so. It is to be noted that the nature of the discretion which is conferred on an Industrial Tribunal by Regulation 4(7) is unqualified.Mr Brown on behalf of the appellant in this case, argued before us that an analogy should be drawn between the exercise of a power under Regulation 4(7) and the way in which the High Court should exercise its power to implement an unless order. He says that in the latter case, some kind of contumelious behaviour needs to be established.We consider that there is no need to import into the tribunal regulations ancient language such as contumacious or contumelious, but we do consider that it is right for the Industrial Tribunal to examine the conduct of the representative; and it will only be in those cases where the conduct falls short and well-short of the standard to be expected, that we would expect the power given by Regulation 4(7) to be exercised. If there was an accidental or innocent explanation for the failure to comply with the tribunal's Order, no doubt the Industrial Tribunal would take that into account in deciding whether it would be appropriate to take the draconian step of striking out the application.It appeared to the Industrial Tribunal from the passage that I have read, and appears to us, that there has been what may be described here in simply language as an intentional failure not to comply with the tribunal's Order. As long ago as December 1994, the Order had been made, it was not complied with for over 14 months. It seems to us that the Industrial Tribunal office bent over backwards to extend time and to give the union representatives an opportunity to get on with the case in the way which they had been ordered to do. It seems to us that it fell well within the ambit of the Industrial Tribunal's discretion on the facts of this case to arrive at the conclusion which is set out in paragraphs 18 and 19 of their decision. It seems to us with great respect and, if we may say so, that the decision of the tribunal chaired by Mrs Mason can only be described as impeccable, and a model of its kind. She has directed her attention to those mattes which required consideration, and has weighed the arguments, which were addressed to her, in a way which we cannot fault or indeed improve upon. In our judgment this was an interlocutory decision which the tribunal was eminently entitled to take, and we are not at all persuaded that there is any error of law arguable in this case. Accordingly, we shall dismiss this appeal.