Tchoula v Erteco UK Ltd [1997] UKEAT 830_97_1807

EAT
Tchoula v Erteco UK Ltd
[1997] UKEAT 830_97_1807 · 1997-07-18

JUDGE PETER CLARK :

On 27 September 1995 Mr Tchoula presented an Originating Application to the Industrial Tribunal complaining of wrongful dismissal and racial discrimination against the Respondent, Erteco UK Ltd, in relation to a period of employment from 30 October 1994 until 10 July 1995. That complaint is proceeding in the London (South) Industrial Tribunal under case No. 55717/95, and is hereafter referred to as "the Erteco claim".On 10 April 1996 the matter came before a Chairman, Mr Lamb, for directions. On that occasion he directed that the Respondent plead in detail to the Further and Better Particulars of the Originating Application lodged by the Appellant on 3 March 1996. Time for complying with that direction expired on 24 May 1996.The Respondent did not comply with that order. On 17 June 1996 the Respondent's Solicitors wrote to the Industrial Tribunal explaining that they were encountering difficulties in preparing the pleading.Dissatisfied with the Respondent's failure to comply, the Industrial Tribunal wrote to the Respondent on 26 July informing them that the Chairman was considering striking out their Notice of Appearance for non-compliance with the earlier order.The matter returned for further directions before Mr Lamb on 30 September 1996. He was urged by the Appellant to strike out the Notice of Appearance. He declined to do so but instead varied his earlier order by removing the requirement for the Respondent to serve full particulars of their Notice of Appearance and directed that at the merits hearing the Respondent would not be able to advance a positive case, but could simply put the Appellant to proof of his case.On 9 October 1996 the Respondent's Solicitors wrote to the Tribunal, asking the Chairman to review his order. We pause to observe that such an order is not a "decision" within the meaning of Regulation 2(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , and is therefore not susceptible to review under Rule 11 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Regulations.History does not relate what response, if any, the Respondent received to that letter.On 8 March 1996 the Appellant had presented a further Originating Application to the Industrial Tribunal (Case No.15219/96) claiming racial discrimination and wrongful dismissal against Netto Foodstores Ltd (Netto), relating to a period of employment from 18 September until 14 December 1995. We note from the Respondent's Solicitor's letter dated 9 October 1996 in the present proceedings that it is said that in September 1995 the whole of the issued share capital in Erteco was purchased by Netto. We shall call this "the Netto claim".The Netto claim came on for hearing before an Industrial Tribunal sitting at London (South) under the chairmanship of Mr John Warren on 1 and 2 October 1996 (the Warren Tribunal). The Warren Tribunal dismissed the Netto claim by a decision with extended reasons promulgated on 17 October 1996 (the Warren decision). The Appellant has appealed against that decision.The Erteco claim came on for a full merits hearing before an Industrial Tribunal, again at London (South) under the chairmanship of Mr Halton (the Halton Tribunal) on 4 to 6 June 1997. The hearing was not completed within the time allocated and it has been adjourned to resume on 2 September 1997.On 17 June 1997 the Appellant wrote to the Employment Appeal Tribunal. That letter purports to be a Notice of Appeal in the Erteco claim. In it, the Appellant makes two complaints:(1) That the Halton Tribunal has failed to follow the direction given by Mr Lamb on 30 September 1996 by allowing the Respondent to present a positive case.(2) The Halton Tribunal has had before it, in a bundle of documents prepared by the Respondent's Solicitors, a copy of the Warren decision in the Netto claim. He contends that this has polluted the Halton Tribunal's minds and caused prejudice to him in the Erteco claim.

Appeals to the Employment Appeal Tribunal

The jurisdiction of the EAT is conferred by statute, currently the Industrial Tribunals Act 1996 . By Section 21 of the Act:
"(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under or by virtue of -"
And then sets out the relevant statutes.(2) No appeal shall lie except to the Appeal Tribunal from any decision of an industrial tribunal under or by virtue of the Acts ..."Our procedure is regulated by the Employment Appeal Tribunal Rules 1993 . Rule 3(1) provides:
"(1) Every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal the following documents: - (a) a notice of appeal in, or substantially in, accordance with Form 1 or 2 in the Schedule to these Rules; (b) a copy of the decision or order of an industrial tribunal or of the Certification Officer which is the subject of the appeal; (c) in the case of an appeal from an industrial tribunal, a copy of the extended written reasons for the decision or order of that tribunal."
The Appellant's letter to this Appeal Tribunal of 17 June 1997 fails to comply with Rule 3(1) on all three counts. It is not in, or substantially in accordance with Form 1 or 2. No copy of any decision or order of the Halton Industrial Tribunal appealed against has been served with the notice. There are no extended or even summary reasons in writing for any such decision or order served with the Notice of Appeal.We have been addressed by Mr Bear on behalf of the Appellant under the ELAAS pro bono scheme. He submits that by altering the basis of Mr Lamb's order as to the part which the Respondent is able to play in the proceedings before the Halton Tribunal, that Tribunal has made a decision in the course of the substantive hearing of the Erteco claim; alternatively it amounts to an interlocutory order other than a "decision" as defined in Regulation 2(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . Further, the Halton Tribunal is, or may be prejudiced by having looked at the Warren decision which is under appeal and, by an order made by this Appeal Tribunal presided over by Morison J last Monday, has been allowed to proceed to a full hearing.He recognises that it may be said that this appeal is premature and that the Appellant should await the Halton Tribunal's final decision and then, if dissatisfied, appeal against that decision. However, he argues that if there has been injustice during the course of the current hearing, it is more likely to be corrected at this stage, rather than after the Halton Tribunal gives its final decision.Whilst we appreciate the difficulties of an Applicant conducting his case in person before the Industrial Tribunal, we cannot overlook the procedural failings in this appeal. Not only is the Notice of Appeal defective in the three respects which we have identified, but the Appellant failed to ask the Halton Tribunal to rule on the alleged variation in Mr Lamb's order on 4 June, and to give reasons for that ruling, so that a proper appeal could be made.In these circumstances we have concluded that it would not right, as we are urged to do, to adjourn this appeal so that the Appellant may now ask the Halton Tribunal to do that which he should have asked them to do on 4 June. Instead we shall dismiss this appeal as being improperly constituted.We should however add that we are confident that in giving extended reasons, if asked to do so for its eventual final decision on the Erteco claim, the Halton Tribunal will comment on the points made here and below by the Appellant, and in particular:(1) whether it varied the direction of Mr Lamb, and if so, its reasons for so doing, and(2) Whether it considered the Warren decision, now under appeal, and if so, what weight if any it attached to that decision in the context of the Erteco claim, so that in the event of a further appeal this Appeal Tribunal is able to fully understand the reasoning of the Halton Tribunal in reaching its final decision.