Legal Protection Group v Elliott [1997] UKEAT 1393_96_1501

EAT

Legal Protection Group v Elliott

[1997] UKEAT 1393_96_1501 · 1997-01-15

MR JUSTICE KIRKWOOD : This is an appeal by an employer, Legal Protection Group, from directions given by an Industrial Tribunal at Leeds on 4 December 1996. The Appellant has indicated by a Notice that it does not intend to be present at the hearing and is not present. Mr Nesbitt, a friend of Miss Elliott, the Respondent to the appeal, has assisted the Appeal Tribunal this morning.

Miss Elliott joined the Legal Protection Group as a trainee Claims Negotiator on 27 February 1996. She left after considerable unhappiness on 6 August 1996 and on 8 September 1996 she lodged a complaint of constructive dismissal. Her case is that she had to go home for half a day on 9 July 1996 because of a bad nose bleed. The next day she had a new supervisor who effectively froze her out and made her life a misery and she said she got very stressed about it.

At a hearing on 4 December it was argued, for the employer, that this was a case to which section 94 and section 108 of the Employment Rights Act 1996 applied; that Miss Elliott had not been employed for two years and that therefore her claim should be summarily dismissed.

It appears from the Appellant's skeleton argument that the Chairman made an extempore remark to the effect that, on the face of it, the Tribunal had no jurisdiction in the absence of two years' continuous service. Further extempore exchanges were referred to in the skeleton argument. It is said that the Chairman postulated that section 100, which refers to Health and Safety at work, may be in point, but Miss Elliott said that her health was not affected. She left because the situation caused her stress and she was unhappy. For the employer, it was submitted, that there was nothing in Miss Elliott's application that would bring the case within section 100.

The written decision of the Tribunal is in these terms:

"The above case was heard by Mr P A Morris (Chairman) and two members ... on Wednesday 4 December 1996, in which the following directions were given:-

1 The proceedings were postponed on the basis that it was not proper to proceed with a preliminary hearing but the matter should proceed to a full hearing on a date to be fixed.

2 An order for further and better particulars by the applicant, setting out her claims in detail and the statutory authority under which those claims are brought, within 21 days, was made. Leave was also given to the respondents to respond to those further and better particulars upon their receipt within a further 21 days."

In its Notice of Appeal the Appellant refers in paragraph 3.1 to what is said to be finding. It reads:

"In finding of its own motion and without any evidence that the Applicant's claim could potentially be heard under section 100 Employment Rights Act 1996, the tribunal misdirected itself on the facts before it and was wrong in law or reached a decision that was perverse."

It is evident to us that there was no such finding on that occasion and that the preliminary hearing proceeded in the nature of an exploratory one.

It then says in paragraph 3.2:

"3.2 In failing to consider the Applicant's claim as pleaded and to dismiss that claim under section 108 Employment Rights Act 1996, the tribunal was wrong in law."

And the comment I have made in relation to the first ground applies equally to that one.

In paragraph 3.3 it is said that:

"In inviting the Applicant to present an amended application by way of "further and better particulars" relating to health and safety grounds without there having been any request from the Applicant for leave to amend the Originating Application, the tribunal misdirected itself, was wrong in law or reached a decision that that was perverse."

The Tribunal has made it perfectly plain that it has not given leave to amend the Originating Application and that its directions were calculated to bring clearer and fuller information before it upon which it could proceed to determination.

In paragraph 3.4 it is said that:

"In adjourning the hearing and ordering that the matter should proceed to a full hearing having ruled that the tribunal had no jurisdiction to hear the Applicant's claim on the ground pleaded the tribunal was wrong in law or reached a decision that was perverse."

Again, the Appellant misleads itself in the use of the word "ruled" because the Chairman of the Tribunal had not made any ruling at all.

We do not speculate as to what was in the Chairman's mind on 4 December, but in our view the Chairman was entitled to look at the facts as presented at that stage, and to consider whether they do or may disclose a cause of action. At that preliminary hearing the Industrial Tribunal was doing no more than asking for more information by means of further and better particulars to give it itself a fuller picture and that was a course that the Tribunal was plainly entitled to take.

In their skeleton argument, on behalf of the Respondent, carefully drawn, Mr Nesbitt said this:

"1. The Industrial Tribunal sitting at Leeds on 4th December 1996 did not make a decision regarding the case, but adjourned in order to hear the case fully. Therefore, the tribunal has not heard the details of the case and has asked for further and better particulars in order to find out the full details of the case."

And at paragraph 4 Mr Nesbitt put this:

"4. The appeal in this situation is contrary to the current thinking and practice of Industrial Tribunals promoting swift and inexpensive resolution of disputes and enabling applicants not professionally represented to get a fair hearing."

We wholeheartedly agree with both those submissions and we have no hesitation in dismissing this appeal.