MISS JACKIE M GREENE v THE LONDON BOROUGH OF HACKNEY [1999] UKEAT 1182_98_2311

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1182_98_2311

Case No Appeal Nos. EAT/1182/98 & EAT/504/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS JACKIE M GREENEAPPELLANT

THE LONDON BOROUGH OF HACKNEYRESPONDENT

Before

His Honour Judge J Hicks

Date 23 November 1999

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR S D HEATH (of Counsel) Head of Leagl Services Trading Unit London Borough of Hackney 183-187 Stoke Newington High Street London N16 0LH JUDGE HICKS QC : Miss Greene, the Appellant, was employed by the Respondent Borough as a graphic designer from 5 September 1994 until 5 November 1997. She issued an Originating Application on 22 January 1998 complaining of unfair dismissal and race discrimination. Since the issues before us concern only certain procedural decisions by the Employment Tribunal we have not been taken through the substantive allegations and need not recite them. On 7 July 1998 the tribunal made an order, following an earlier request by the Respondent, that Miss Greene serve further and better particulars of her complaint. The hearing had already been fixed for 15 July. By letter dated 10 July 1998 the tribunal refused an application for postponement of the hearing but extended the time for service of the further and better particulars until 14 July. The request for a postponement was renewed by letter and again at the beginning of the hearing on 15 July 1998, and was refused on both occasions. There was also at the outset of the hearing a successful application by the Respondent to strike out the whole of Miss Greene's Originating Application for non-compliance with the order for further and better particulars.

[2]In form Miss Greene appeals against the order of 15 July 1998 but in reality it did not feature, except as part of the procedural history, in the arguments before us. As to the striking out Miss Greene applied for a review and was successful, on the basis that there had been a failure to serve notice on her before 15 July to show cause why she should not be struck out. There was therefore a review of that decision in the form of a complete rehearing on 10 March 1999 after service of a notice to show cause. In a decision with extended reasons promulgated on 22 March 1999 the tribunal again struck out the discrimination complaint but directed that the unfair dismissal complaint should proceed to a full hearing, which was originally fixed to begin on 21 June 1999 but is now listed for 6 October 1999. It was against that striking out of the discrimination complaint that the substance of Miss Greene' appeal was addressed. The tribunal rightly held that it had no jurisdiction to review the refusal of a postponement, but by fixing a date for the hearing of the unfair dismissal complaint it effectively bypassed that refusal and the argument on both sides before us proceeded on the basis that if the striking out of the discrimination claim were reversed by us, as in the event it was, that also would proceed to a hearing. In so far as it is procedurally necessary to regularise that position by allowing the appeal against the refusal of a postponement we do so.

[3]I say "as in the event it was" because, in view of the need for the parties and the Employment Tribunal to know where they stood before the date of the hearing fixed for 6 October, we announced on 28th September 1999 our decision to allow the appeal, restore the complaint of racial discrimination and give directions, for reasons to be given later. We now give those reasons.

[4]By the date of the review hearing further material events had occurred or, in one respect, not occurred. On 7 September 1998 the parties had been notified of that date and on 23 October 1998, with some four and a half months to go, Miss Greene's representative had served a document headed "Replies to Request for Further and Better Particulars of Originating Application". The Respondent had not, before the date of the review hearing, complained of any specific shortcomings in that document or requested or applied for any further response.

[5]In view of the reasons given by the tribunal for striking out the discrimination claim it is desirable to set out the request and replies in full. They were produced to us as separate documents, but for ease of reference we combine them:

" Request 1.0 By what section of the Race Relations Act are you alleging you were discriminated? Reply 1. S.1 (1)(A), S.2 and S.4 Request 2.0 Are you alleging direct or indirect discrimination? Reply 2. Direct. Request 3.0 If direct discrimination is alleged, please: - - Identify the discriminator; - The discriminating act; - Ways in which you allege you have been unfavourably treated. - Identify any comparators. Reply 3. - As stated at page 444 Respondents Bundle: Marion Forking and London Borough of Hackney as the employer. - As stated at page 438 Respondents Bundle: The implementation of the Unsatisfactory Performance Procedures; Marion Forkin's involvement in the Applicants work; - As stated at page 440 Respondents Bundle: The unfair allocation of work, in particular projects such as "

Hackney Today" and "Pollution Report"; - As stated at page 441 Respondents Bundle: The unfair allocation of proofreading services; As stated at page 44: All matter's listed 1-7; As stated at pages 444 and 445 Respondents Bundle All matter's referred to therein; Comparator's: as stated at page 420 Respondents Bundle: White Graphic Designer's listed at page 420. Request 4.0 If indirect discrimination is alleged please state what requirements or conditions are relied on. Reply 4. N/A. Request 5.0 OF 'November 1994 witnessed Marion Forkin's unacceptable behaviour towards Meloney Brown'. Please state: (a) the nature of the unacceptable behaviour (b) the link between Meloney Brown and your allegations of racism. Reply 5. (a) Marion Forkin raised her voice when speaking to M. Brown, followed M. Brown around the office, talked down to M. Brown and treated M. Brown less respectfully to the way M. Forkin would treat a white member of staff. (b) Indicative of M. Forkin's attitude towards black people, also M. Forkin used same tone and demeanour when dealing with the Applicant. Request 6.0 OF 'December 1995 informed Marian Forkin of differential treatment and victimisation' Please state: (a) The nature of the differential treatment you informed Marian Forkin of in December 1995, November 1996 and December 1996. (b) The nature of the differential treatment you informed Paul Donaldson of in October 1996. (c) Please supply a copy of the letter dated 9th February 1997. Reply 6. (a) December 1995: As detailed at page 440 Respondents Bundle; Unfair allocation of work re:

"Hackney Today", also Applicant informed M. Forkin that the Applicant was being treated disrespectfully. November 1996: The Applicant informed M. Forkin that the Applicant starting the Grievance Procedure regarding M. Forkin's treatment of the Applicant, the Applicant also stated that she had informed the Head of Personnel at which M. Forkin stated that she would start the Unsatisfactory Performance Procedures and also raised her voice and made false allegations regarding the Applicant. December 1996: The Applicant informed M. Forkin that she was discriminating against the Applicant in the way that the Applicant's work was being monitored and compared to other designer's. 6. (b) The Applicant informed P. Donaldson that M. Forkin had treated the Applicant differently to other staff; that M. Forkin had spoken to the Applicant using a derogatory tone; that M. Forkin had made false allegations regarding the Applicant's work and that the Applicant had been treated less favourably than other staff when being allocated work. (c) copy enclosed. Request 7.0 OF 'November 1996 during these meetings I was subjected to unacceptable behaviour from Marian Forkin'. Please give examples of the unacceptable behaviour providing evidence of the same. Reply 7. As stated at page 420 Respondents Bundle: M. Forkin used a derogatory tone and condescending manner when dealing with the Applicant; M. Forkin often shouted at the Applicant; M. Forkin also made false allegations regarding the Applicant. Request 8.0 OF 'November 1996 Marian Forkin demonstrates covert racism was implemented as far as possible within the restriction of the Council's procedures'. Reply 8. The Applicant was refused a proofreading course other member's of staff were offered proofreading courses. Documentary evidence enclosed. Job's were ringfenced by M. Forkin for white member's of staff. All matter's referred to in replies above. Request 9.0 OF 'November 1996 Marian Forkin provided false information to me regarding clients and suppliers and client's comments'. Please provide documentary evidence of the false information supplied, the clients and suppliers referred therein. Reply 9. Information provided verbally by M. Forkin to Applicant, no documents available. Request 10. OF 'November 1996 Marian Forkin instructed staff to observe my every action how I worked, who I spoke to on the telephone, what was discussed with client'. Please provide: (a) Evidence of the instructions to staff. (b) The identity of staff instructed to observe you. Reply 10. (a) Evidence will be provided in the course of the Applicant giving her evidence. (b) As stated at page 433 Respondents Bundle: Glory Hall. Request 11.0 OF 'November 1996 Marion wrote a complaint memo to me 24 months after my employment commenced'. Please provide a copy of the said memo. Reply 11. copy enclosed. Request 12.0 OF'18 November 1996 … Marion's behaviour was totally unacceptable Marion had lost her temper, spoke to me in a derogatory tone and raised her voice'. Please provide evidence of how she spoke to you in a derogatory tone. Reply 12. Evidence will be provided in the course of the Applicant giving her evidence. Request 13.0 OF 'Date 27 February 1997 I wrote a formal letter to Lorraine Langham …'. Please provide a copy of the said letter. Reply 13. copy enclosed. Request 14.0 OF 'Date February 1997 I informed Marian that she had discriminated against me …'. Please identify the discriminating act. Reply 14. The Applicant complained of the way that the Applicant's work was singled out; the way in which the Applicant was spoken to and M. Forkin's general treatment of the Applicant. Request 15.0 OF '… Dealing with minor errors in my work differently to that of the white and mixed race designers'. Please state: (a) The identity of the white and mixed race designers. (b) Their job title. (c) Their grades. Reply 15. As stated at page 420 Respondents Bundle. Request 16.0 OF 'Making accusations about my professionalism and conduct without clear evidence'. Please provide evidence of the accusations about your professionalism and conduct. Reply 16. Evidence will be provided in the course of the Applicant giving her evidence. Request 17.0 OF '5 November 1997 the Council failed to follow its established procedure for employees charged with unsatisfactory work performance'. Please state how the Council failed to follow its established procedure for unsatisfactory work performance. Reply 17. The Respondent failed to follow the procedures contained in the London Borough of Hackney Framework Document. (i) No appropriate training in the form of proofreading was given after requests from the Applicant. Refer page 47 and 48 Frameworks document. (ii) No effective supervision was given to the Applicant and the performance standards were not applied across the staff group (designers) also lack of appropriate training. Refer page 48 Frameworks document. (iii) No specific training or training timescales were agreed at the Guidance interview. Refer page 48 Frameworks document. (iv) The manager did not explore other options that may be open with the Applicant. Refer page 50 Frameworks document. (v) The requirements of the procedures relating to the Performance Review Meeting were not followed in that the Manager had not identified and instigated appropriate support and training as outlined in the procedures. Refer page 50 Frameworks document. (vi) The Respondent failed to consider penalties applied in similar cases; the individuals disciplinary record and general service; mitigating circumstances. Also the Applicant was not allowed to call witnesses at the final hearing. Request 18.0 OF '… I was treated differently to other colleagues of different ethnic backgrounds who carried out the same duties as myself'. Please state: (a) the identity of the other colleagues (b) their ethnic background (c) their job title (d) their grades Reply 18. As listed at page 420 Respondents Bundle"

[6]The tribunal's grounds for striking out the discrimination claim are given in the following extracts from its reasons:

"12 … The request by the Respondent for further and better particulars of the Originating Application which was dated 29 May 1998 contained 18 questions of which all but question 17 relate to the complaint of racial discrimination. None of the questions have been answered. … The Applicant's representative submitted a reply on 23 October which is long after the date for compliance. The reply is in the main a catalogue of generalities setting out little in the way of clear facts. Even had it been made at the time for compliance on 14 July 1998, it would not have been an adequate response to the order for further and better particulars. 13 The principles to be applied when considering whether to strike out a pleading for non-compliance with an order is for the question to be asked whether there is a real or substantial or serious risk that as a result of the default, a fair trial will not longer be possible ( Landauer Limited –v- Comins & Co [1991] Times 7 August CA). We therefore have to consider whether as a result of Miss Greene's non-compliance with the order a fair hearing is possible. 14 In answering that question on the complaint of racial discrimination, we took into account that the Respondent still does not know the case being brought against them or the nature of the complaint of racial discrimination. The allegations made in the Originating Application go back as far as 1994 and the Tribunal took into account that memories fade and people cease to be available. 15 We are satisfied that there is a serious risk that the complaint of racial discrimination could not be decided fairly and it is therefore the unanimous decision of the Tribunal that the complaint of racial discrimination should be struck out in its entirety pursuant to the power conferred under Rule 4(7) of the Employment Tribunals Rules of Procedure 1993 for Miss Greene's failure to comply with the Tribunal's order for further particulars dated 7 July 1998."

[7]In our judgment the tribunal erred in law in three respects in its approach to and decision on that issue.

[8]In the first place it was simply not the case that "None of the questions [had] been answered". The replies fall into three broad categories. Some were plainly unexceptionable, in particular 1, 2, 4, 5, 6 (except the first item of 6(a)), 8 (except the second item), 9 and 11. Some were plainly inadequate, in particular 12 and 16. The remainder were arguable, many of them depending on consideration of the documents referred to in order to see whether or not the information supplied was within specified bounds and was readily and conveniently identifiable at the places cited. Much of this was very fairly and properly conceded by Mr Heath, for the Respondent, in argument; apart from 12 and 16, he said, the most important failure to reply adequately was in 3. There would plainly be room for differences of judgment between different reasonable tribunals addressing the detailed examination of the third category, but in the absence of time to allow remittance of the question to an Employment Tribunal we had to form our own view, which was that in addition to 12 and 16 the inadequacies of significance lay in the words "As stated at pages 444 and 445 Respondent's Bundle: All matters referred to therein" in Reply 3 and "Jobs were ringfenced by M. Forkin for white members of staff" in Reply 8. We shall return to the question how we decided to deal with those defaults after considering the other respects in which we concluded that the tribunal fell into error.

[9]The second lay in the tribunal's failure to distinguish between the criteria to be applied in considering whether to strike out under Rule 4(7) of the Employment Tribunals Rules of Procedure 1993 for failure to comply with directions and those to be applied in considering whether to dismiss for want of prosecution under Rule 13(2)(f). It was the former power which the tribunal expressed itself to be exercising, but the considerations of delay and of the possibility or otherwise of a fair trial on which it relied are characteristically those appropriate to the exercise of the latter. When deciding whether to strike out for failure to comply with a direction it is at least material, and often decisive, whether the direction was peremptory, for example by being in the form of an "unless" order. No consideration was given by the tribunal to that question, nor to the possibility that the situation could be met by making such an order.

[10]But thirdly, assuming in the tribunal's favour that despite its reliance on Rule 4(7), and the fact that that was the only rule referred to in the notice to show cause, it was in fact open to it to exercise instead or in addition the jurisdiction to strike out for want of prosecution, or to apply the same principles as if it were doing so, it erred in its approach to the exercise of its discretion in that respect. The first question in such a case is whether there has been inordinate and inexcusable delay. Allowing for the fact that greater expedition can properly be expected in tribunal proceedings than has often, at least in the past, been required in litigation, it may be that it would not have been perverse to find that the delay in this case was of that order, but at least the question needed to be addressed. Perhaps more importantly the issue whether there could be a fair trial, that is one not causing unacceptable prejudice to the Respondent, is inadequately treated. A general statement that "memories fade and people cease to be available" is of little or no weight in the absence of evidence and findings on the question how far that is a significant factor in the instant case. The statement that the Respondent still did not know the case being brought against it was not a fair summary of the position over most of the field of Miss Greene's complaints, in the light of the material available at that date, including the document of 23 October 1998.

[11]Those were our reasons for allowing the appeal. In view of the imminence of the substantive hearing in the Employment Tribunal it was common ground that if we did so we should exercise our own discretion whether to restore the complaint of racial discrimination and, if so, give appropriate directions. Taking into account the facts as set out above we came to the conclusion that we should exercise our discretion to restore the discrimination complaint, subject to the following directions relating to the replies dated 23 October 1998 served in response to the order for further and better particulars, as described above :

"(1) In Reply 3 the words "

As stated in pages 444 and 445 Respondents Bundle: All matters referred to therein" are struck out and the Applicant is debarred from relying upon or pursuing them. (2) In Reply 8 the words "Jobs were ringfenced by M. Forkin for white members of staff" may not be relied upon or pursued unless the Applicant files and serves on the Respondent full particulars of all incidents alleged under this head by 4 pm on 1 October 1999. (3) The allegations which are the subject of Requests 12 and 16 are struck out unless by 4 pm on 1 October 1999 the Applicant files and serves on the Respondent full particulars as ordered on 7 July 1998; this direction to apply separately to each such Request."