Abegaze v British Telecommunications Plc [1997] UKEAT 772_97_0907

EAT

Abegaze v British Telecommunications Plc

[1997] UKEAT 772_97_0907 · 1997-07-09

MR JUSTICE KIRKWOOD: This is an appeal by an Applicant against an Interlocutory decision of a Chairman of an Industrial Tribunal at Bury St Edmunds, by which the Chairman indicated his preparedness to review an earlier Interlocutory decision.

In August 1996 Dr Abegaze had applied for a post with British Telecommunications plc. His application was unsuccessful. He believed that that was because he had been discriminated against on the ground of race, so he applied by an Originating Application to the Industrial Tribunal. The Respondent, British Telecommunications plc entered a Notice of Appearance. It resisted the application.

On 26 February 1997 the Industrial Tribunal held a directions hearing. The Respondent was ordered to furnish certain further and better particulars within twenty-eight days. Those were, in fact, further and better particulars in accordance with requests from the Applicant in letters to the Respondent of 30 August 1996 and 24 January 1997. There was also a direction for disclosure of documents upon which nothing turns in the appeal before us. The Respondent did not comply with the timetable for further and better particulars. It appears that on 2 April 1997 Dr Abegaze wrote to the Tribunal about that, although we do not have that letter before us. (I think the absence of that letter from our bundle is not of material importance.) It was about, as we understand, the absence of the particulars.

The Industrial Tribunal replied to Dr Abegaze on 10 April 1997 conveying a direction from the Chairman:

"If the respondent has not complied with the tribunal's order for particulars the appropriate course of action is to ask for an order striking out the Notice of Appearance, not to ask further questions. If the replies have been received a Chairman will need to be satisfied that there is good reason to seek further particulars.

Please let us know if you have received the replies ordered on 20 February 1997 and if not whether you seek a striking out order."

That letter was copied to the Respondent's solicitor, Mr Whitfield.

It appears that Dr Abegaze did apply for a striking-out Order, because on 14 April 1997 a letter went from the Industrial Tribunal to the Respondent's solicitor, with a copy to Dr Abegaze, in these terms:

"I refer to a letter from the applicant dated 11/4/97. (copy enclosed)

It has been referred to a Chairman of the Industrial Tribunals (Mr B G Mitchell) who has directed that the respondent is to show cause in writing within 7 days, why the notice of appearance should not be struck out for failure to comply with the Tribunal order of 26/2/97."

The Respondent did not respond to that Order, but it seems that further events occurred at the end of April in close sequence.

On 28 April 1997 the Respondent wrote to Dr Abegaze enclosing replies to the request for further and better particulars, and the replies are dated that same day, the 28th April. Those replies also went to the Industrial Tribunal under cover of a letter of the same day and seemed to have been received by the Tribunal on 1 May. Although that was in fact done, it is clear from what I have said, that the replies were something in the region of a little more than a month out of time. Simultaneously or almost simultaneously, the Tribunal made a striking-out Order on 30 April 1997. The Order was this:

"The notice of appearance is struck out and the respondent barred from taking further part in these proceedings save as permitted by Rule 3(2)(c)(d) or (e) of the Rules of Procedure having regard to its failure to show cause to the contrary why such order should not be made by notice from the Tribunal of the 14 April 1997 within 7 days thereof."

On 2 May 1997 the Respondent wrote a letter to the Tribunal saying:

"Unfortunately, I have not received a copy of the Tribunals notice to show cause dated 14th April 1997, and had I done so I would have replied on behalf of the Respondent.

I believe after speaking with your office, that the Order was made in relation to the Order for Further and Better Particulars dated 26th February 1997. These Further and Better Particulars were given on 28th April 1997, and I apologise for the lateness in filling these Further and Better Particulars, which clearly are outside the 28 days ordered by the Tribunal. Unfortunately, some difficulty was encountered in obtaining the detail required by the Applicant, and in fact a break down of the ethnicity of the Group within which the Applicant would have worked is still awaited. However, had I received notice on 14th April, then the replies obtained at that time would have been filed immediately. There was no deliberate delay on the part of the Respondent in filing these Further and Better Particulars, merely an attempt to provide the fullest particulars which resulted in the delay.

In these circumstances, I should be grateful if this letter could be placed before the Chairman so that the Respondent's request for a review of the decision dated 30th April 1997 can be made pursuant to Rule 11.

Whilst I unreservedly offer my apologies for the non compliance with the Tribunals Order dated 28th February 1997, the Respondent was not notified of the Order to show cause, and further I do not believe that the Applicant has been prejudiced as a result of this delay. Finally, I respectfully submit that it will not be in the interests of justice to strike out the Respondent's Notice of Application."

In response to that, the matter was considered by a Chairman of the Industrial Tribunal who gave the following direction:

"Subject to any observation from either side I am prepared to review the decision promulgated on 30/4/97, on the basis of the matters submitted in the respondents letter dated 2/5/97 unless either side requests, there will be no need of a formal hearing."

That direction was sent out within a letter of 9 April 1997, addressed to Dr Abegaze and copied to Mr Israel of the Respondent. The letter also contained this passage:

"Please reply with your observations within 3 days."

It seems to us that Dr Abegaze did not reply with observations within three days as requested, or indeed at all. He simply telephoned the Tribunal and said he proposed to appeal against the direction contained in the letter of 9 May 1997. That is what Dr Abegaze has done. In his Notice of Appeal dated 17 June 1997 he says that the decision of the Tribunal Chairman that he was prepared to hold a review, was unfair. He says that the Respondent has shown no respect for the law or for the Court. He disputes non-receipt by the Respondent of the letter of 14 April 1997, the "show cause" letter. He asserts that the Respondent plainly received all other letters at about that time. Furthermore, the Appellant, Dr Abegaze, says that the Respondent should have written within the twenty-eight day timetable, or at least in response to the copy letter of 10 April which they must also have had, to explain their delay in complying. This, contends Dr Abegaze, is all a contemptuous delaying tactic to avoid facing up to the responsibility of meeting his claim and to keep him from the seat of justice. Furthermore, Dr Abegaze argues that there can be no conceivable genuine reason for the Respondent's claim to have had difficulty in replying to his quite short questionnaires, contained in the letters of August 1996 and January 1997.

That is Dr Abegaze's case and it is the case he presents to us. He goes on to say that the excuse for non-compliance within time was flimsy and fabricated; and then this point, which goes to the heart of his appeal, that had the Industrial Tribunal Chairman taken the trouble to look into the whole of the circumstances of the case as they had developed by 30 April 1997, he would have seen that the excuse was flimsy and fabricated and he would not have said that he was prepared to review the Order to strike-out made on 30 April 1997.

The relevant rule is contained in the The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 at Schedule 1 paragraph 11:

"(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that– (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (e) the interests of justice require such a review."

That is the statutory provision under which the Chairman indicated that he was prepared to hold a review.

In giving that indication, the Chairman gave Dr Abegaze the opportunity to make to him any observations on the topic that Dr Abegaze wished. Dr Abegaze did not avail himself of that opportunity but has reserved his observations for this Appeal Tribunal.

We understand the way in which Dr Abegaze puts his point. Whether or not they are good points will be a matter for adjudication when both sides are heard. It is not for this Appeal Tribunal to adjudicate upon facts. The role of this Appeal Tribunal is to consider appeals on the basis of an error of law or on the basis of a perversity of finding of fact. There has been no finding of fact on these matters in this case, because the case has not yet reached that stage.

When the Chairman of the Industrial Tribunal holds his review, which we know from the papers he is ready and willing to do at the earliest reasonable time, he will give the closest consideration, we have no doubt, to the points that Dr Abegaze makes as to why the striking-out Order of 30 April 1997 should stand and should not be set aside. The Chairman will also consider the representations and arguments on the other side.

It is a matter of some concern to us that whilst Dr Abegaze is anxious and, I fancy, becoming a little impatient to get justice done in this case, the result of this appeal has been inevitably to introduce some delay in the process before the Industrial Tribunal. We are quite unpersuaded that the Chairman exercised his powers under paragraph 11 of Schedule 1 of the 1993 Regulations in any improper way, and for that reason we find no basis upon which we can properly interfere with his decision that he is prepared to hold a review. The review will therefore take place. This appeal is dismissed.

We would urge Dr Abegaze to take away from this hearing today no thought that we have made a decision against him on the merits of his case, or of this application. We have simply not decided whether his points, which are points we feel are properly debated on the review rather than here, mayl find favour with the Chairman.

Sympathising as we do with Dr Abegaze's desire that justice should be done, he might also carry away this thought: that justice will be done when the Industrial Tribunal is in a position to hold at, we hope, an early stage, a full hearing of his case with all the relevant information before it, not just on his side but on the side of the Respondent. It is a fundamental principle in the doing of justice that subject to any other overriding factor, a Tribunal should hear both sides and we have no doubt that the Industrial Tribunal will do its best to ensure that the evidence it considers relevant will be before it, so that justice can indeed be done. The appeal will, for those reasons, be dismissed.