Nakatani v Japanese School Ltd [1998] UKEAT 391_97_2611

EAT

Nakatani v Japanese School Ltd

[1998] UKEAT 391_97_2611 · 1998-11-26

JUDGE PETER CLARK:

On 26 June 1998 two appeals brought by Mr Nakatani came on for a preliminary hearing before a division of this Tribunal presided over by Mr Justice Kirkwood. Mr Blyghton, who sits today, also sat on that occasion.

For the reasons given by Mr Justice Kirkwood in a judgment delivered on that day the first appeal EAT 1108/96 was dismissed, as were all grounds save for one in appeal no. 391/97. That single issue was directed to proceed to a full appeal hearing. It is that matter which is before us today.

The Respondent has indicated, by a letter from its solicitors dated 10 August 1998, that it does not intend to oppose the appeal. Nevertheless, in accordance with our usual practice, we have considered whether the appeal ought to be allowed.

The appeal is against one of four interlocutory orders made by an Employment Tribunal at the London (North) chaired by Mr Ivor Walker on 15 January 1997. The background is that the Appellant was employed by the Respondent as a teacher until his summary dismissal on about 31 May 1995. The ground put forward by the Respondent for dismissal in their notice of appearance was they could not continue to employ him without his furnishing proof of his continuing immigration status in the United Kingdom. On 29 August 1995 he presented his Originating Application to the Tribunal claiming, among other things, unfair dismissal.

That claim was initially struck out by a Tribunal sitting on 24 July 1996 for failure to comply with an order for Further and Better Particulars of the Originating Application.

On 15 January 1997 that strike out decision was set aside by Mr Walker's Tribunal. The Tribunal then went on to make this order; formally promulgated on 5 February 1997:

"The Tribunal HEREBY ORDERS that on or before 26 February 1997 the Applicant shall supply in writing to this office and the Respondent the following Further Particulars of the Originating Application:

1. Confirmation from the Home Office or the Japanese Embassy that on 31 May 1995 you were legally entitled to seek and obtain employment in the United Kingdom."

In this appeal the Appellant submits that that is in truth not an order for Further and Better Particulars of the Originating Application. It is not even an order for specific discovery, since the material sought was not then in existence.

That submission is correct. As Wood J put the matter in Byrne & Others -v- The Financial Times Ltd

[1991] IRLR 417

, 419:

".... particulars are for the purpose of identifying the issues, not for the production of the evidence;...."

Thus, whilst we can understand the Tribunal's desire to resolve a potential factual issue in the case in advance of the hearing, they had no power to do so by ordering Further and Better Particulars under Rule 4(1)(a) of the Employment Tribunal Rules of Procedure. We shall therefore allow the appeal and set aside paragraph 1 of the Order dated 5 February 1997, particularly in circumstances where failure to comply with that order can lead to a strike out order being made under Rule 4(7).