Khan v London Central Mosque Trust [1998] UKEAT 1268_98_1012

EAT
Khan v London Central Mosque Trust
[1998] UKEAT 1268_98_1012 · 1998-12-10
For the First Respondents For the Second Respondents MS E JEFFERSON (Representative) Peninsula Business Services Ltd Advocacy & Litigation Department 2nd Floor, Stamford House 361-165 Chapel Street, Salford Manchester M3 5JY MR J MITCHELL (of Counsel) Messrs Gandecha & Pau Solicitors Lidgra House, 2nd Floor 250 Kingsbury Road London NW9 0PTMR JUSTICE MORISON (PRESIDENT) : This is an interlocutory appeal. It is against the decision of a Chairman sitting alone on 2nd October 1998. That hearing had been convened by a letter dated 25th August 1998 from the Employment Tribunal to the parties to the litigation. The letter indicated that a Chairman considered that a hearing for directions was desirable. It said that the parties were "entitled to attend either in person or by a representative". The person attending should come prepared to tell the Chairman how long they thought that the case was going to last. Amongst the issues to be considered at that hearing was the clarification of the issues in the case and to give any necessary orders for further particulars; to consider what orders for disclosure of documents and the attendance of witnesses should be made; to agree, if possible, what documentation should be provided; to consider how long the case was likely to last; and try and decide the date and length of the hearing; and finally "to give any other directions which may be necessary for the fair and expeditious disposal of the case".The matter with which the Employment Tribunal was concerned arose out of an IT1 which alleged 1. Unfair dismissal, 2. contravention of the Transfer of Undertaking (Protection of Employment) Regulations, 3. unlawful deduction of wages, and 4. race discrimination.The race discrimination case was initially stated in this way:
"The Director General or his staff had instructed the new employers that "I would not be working in the Islamic Cultural Centre anymore because they want new people" Where as two of the four Security Guards have already been posted at the Islamic Cultural Centre (who are Arabic speaking), I feel this amounts to racial discrimination."
Subsequently on 11th June that application was amended, with leave of the tribunal, to include a claim for wrongful dismissal in breach of contract and to clarify the nature of the complaint of discrimination, and it was put in this way:
"Drawout the fact that I am claiming that I was discriminated by reason of my nationality and ethnic group as a Pakistani vis-à-vis two Arabs form Sudan, who were given more favourable treatment than myself because, they were taken on and posted at the Islamic Cultural Centre by Extreme Security Services Ltd, whereas I was not. (Two Arabs from Sudan, had like me, formally being employed by the Islamic Cultural Centre.)"
The respondents, and each of them, had filed an answer to the complaint. Extreme Security Services Ltd and the Islamic Cultural Centre. It is to be noted that in neither of their two IT3s did the respondents contend that the complaint of race discrimination was frivolous, vexatious or otherwise an abuse of the process of the Court.At the hearing which took place before the learned and experienced Chairman, Counsel was representing Extreme Security Services Ltd, an advocate employed by Peninsula Business Services was representing the London Central Mosque Trust and the Islamic Cultural Centre, the applicant involved in this case, Mr Khan, was represented by an adviser from the Tottenham Neighbourhood Law Centre.The extended reasons for the decision that was given in this case say this:
"1 This was an Interlocutory Hearing to identify the issues and generally to make Orders and give directions for the Merits Hearing."
Paragraph 2 deals with the name of the first respondent, which is not relevant. Paragraph 3 says this:
" The Applicants complaint of race discrimination . The Applicant is of Pakistani ethnic origin. In clarifying the issue in relation to this it became clear that the Applicant's race discrimination complaint is that Arabic speakers were taken on by the Second Respondent [ Extreme ] in preference to those who were non Arabic speakers. The Applicant is a non Arabic speaker. He compares himself with the Arabic speakers who were taken on two of whom are Sudanese, one is from Pakistan and one is from Somalia. In those circumstances it appeared, in view of the definition "racial grounds" in section 3 of the Race Relations Act, that the Applicant's complaint could not succeed. Having heard representations from all I decided to strike out the complaint of race discrimination under power conferred by Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993 on the grounds that it is frivolous in the sense of having no prospect of success."
Later in the judgement the learned Chairman dismissed the second respondent from the proceedings. She said this:
"5 ... In view of the way the Applicant puts his case and the issues defined, I granted the Second Respondents application to be dismissed from these proceedings. That application was not resisted by the Applicant's representative or the First Respondent's representative."
On behalf of the applicant/appellant on this appeal, Mr Purnell submits that there has been unfairness in the way in which this matter has been dealt with by the learned Chairman. He said that it is plain from the terms of the letter inviting parties to attend the directions hearing that there was no question of any part of the claim presented by the applicant being struck out on the grounds of falling within Rule 13(2)(d), indeed, the indications from the Employment Tribunal were to the contrary effect, namely that there was going to be a hearing and it was important that the estimates of time should be given. Thus, he says, what has happened on this occasion is that there has either been non-compliance with the provisions of Rule 13(3) to which 13(2)(d) is subject, or there has been inherent unfairness in the directions hearing changing course midstream from being a normal directions hearing into a case where the tribunal itself, without the parties prompting it to do so, indicating that there may be frivolity in part of the claim. He submits to us that where a tribunal is relying on an oral notice, then the tribunal should in its decision indicate that that was so and specify with some care that the parties had been given full and proper opportunity to argue the case for striking out. He points out that the applicant himself, who is somewhat deaf, never had the opportunity to give evidence to indicate what the reason was for his allegation of discrimination. In other words, what the differential treatment he was complaining about.On behalf of the respondents, and we heard submissions also on behalf of the second respondents, although for reasons given in a moment, they are not parties to these proceedings. It is said that it becomes clear that during the course of the oral hearing the learned Chairman sought to find out precisely what the complaint of race discrimination was and the allegation of less favourable treatment, and it was as a result of perceiving that this was a complaint not so much about favourable treatment based on race, but treatment based on an ability to speak a language, that she was of the view that the complaint was unsustainable and therefore should be struck out. Reference was made to the terms of paragraph 3 of the decision which I have read.I was also shown a copy of an affidavit which purports to be from the person who represented the first and second respondents at the Employment Tribunal, namely a representative from Peninsula, the advocate in front of the Employment Appeal Tribunal was not the same person and hence the affidavit, and attached to the affidavit were some notes made by that person. In the normal course of events, we might well have regarded this as a case where it would be appropriate for the applicant's representative to have sworn an affidavit and for those matters to be put to the learned Chairman for her comments before we dealt with this appeal. However, the appeal has come before us in circumstances where there is pending a hearing in relation to those parts of the applicant's complaint which are still extent, and it seems to us desirable that we should give a ruling on this appeal.It is against that background that we give this decision on this issue.It seems to us that it is incumbent on an Employment Tribunal when exercising powers under Rule 13(2)(d) or (e) to specify in the decision how sub-rule (3) has been complied with. In other words in this case it should have been made plain by the learned Chairman either that she regarded the letter of invitation, to which I have referred, as constituting notice under first part of 13(3); or, if she was not of that view, she should have set out in her decision more fully the circumstances in which she came to strike out the complaint, relying presumably upon oral notice. It is a power which must be exercised with caution. The Regulations giving rise to these rules make it plain that a determination that part of a claim should be struck out is a decision to which the provisions of Rule 10 apply. It is, therefore, a serious step to take and normally parties should be given the opportunity to reflect on their position before a tribunal proceeds to consider whether it is appropriate that an allegation should be struck out. In this case the applicant would have had some relevant evidence to give to the tribunal as to the reason why he says that he was treated differently by reason of race as defined in s.3 of the Race Relations Act 1976 . It is, as I understand it and as he had pleaded in his additional pleading, his case that he was discriminated against and not taken on after the change because of his nationality, namely that he is a Pakistani as opposed to being either a Somali or a Sudanese. It is true that there may be one other person who is from Pakistan who was also taken on and it may be that the complaint of unlawful discrimination will require very careful examination by an Employment Tribunal at the merits hearing; but it does seem to us that it was not a case for the Employment Tribunal to strike out the complaint of race discrimination without having set out in the decision the way in which Rule 13(3) had been complied with. Furthermore, it seems to us that the power to strike out should, generally speaking, not be exercised until after an applicant has been given an opportunity to explain precisely what his case was. Here, on the face of the pleadings themselves, there was a competent allegation of unlawful discrimination. It raises a case which merits a determination. In any event, if there was any doubt about what precisely was being said, it would, in our judgment, have been fairer and better had the tribunal, initially, ordered further and better particulars of the complaint of unlawful discrimination and then, if needs be, taken a decision, if appropriate, that the allegation was groundless and should be struck out, having given notice.It therefore seems to us that the sensible course in this case is for the hearing to take place before the Employment Tribunal with all the complaints being made by the applicant, including his claim for race discrimination. At that hearing the Employment Tribunal will have to consider why it was that the applicant was dismissed whereas others were taken on. He, is asked, will have to give his explanation for that and the employers in proving the reason for the dismissal will have to deal with it. Then and then only should the question of whether this is a competent claim for discrimination should be finally determined.That being so, we allow the appeal on the grounds that I have indicated, namely that the decision itself has failed to deal with an important part of the jurisdiction of the Employment Tribunal; and secondly, in any event, it should not have been a striking out case, but should have been dealt with in some other way as we have suggested.The second ground of appeal related to the dismissal of the second respondent from the proceedings, but it seems to us having regard to what the tribunal has said, it would be quite wrong for us to make any different adjudication. As the learned Chairman says the application by the second respondents to be dismissed from the proceedings was not resisted by the applicant's representative. In those circumstances, it seems to us quite wrong for the applicant's representative to seek to argue something before the Employment Appeal Tribunal which was not argued before Employment Tribunal. That being so, the second part of the appeal is dismissed.The net result will be, therefore, that the appeal in relation to the complaint of race discrimination is allowed. That allegation will remain a live issue between the parties. Of course if any further directions are required in relation to this case, in the light of our determination, then applications can be made to the Employment Tribunal, for example, for further and better particulars, but those matters are best left to the Employment Tribunal themselves and we do not intend to interfere at all with the sensible way in which this case will be progressed.