Addoo v Newham Healthcare NHS Trust [1999] UKEAT 1423_98_1404

EAT
Addoo v Newham Healthcare NHS Trust
[1999] UKEAT 1423_98_1404 · 1999-04-14
MR JUSTICE LINDSAY: We have before us by way of a Preliminary Hearing the Appeal of Mr I K Addoo in the matter Addoo -v- Newham Healthcare NHS Trust . We are particularly grateful to Miss Jill Brown, who under the ELAAS scheme, has appeared today for Mr Addoo, whose Appeal this is. It is a procedural case and one needs, therefore, to look at the procedural background.On 10th March 1998, the Industrial Tribunal at Stratford received Mr Addoo's form IT.1 which, in the box in which he is required to specify the type of complaint he was making, said only "Unfair Dismissal. Please see attached". The dismissal seems to have been alleged to have taken place on 17th December 1997 and so there was quite a gap between the dismissal and the complaint in March 1998. Within an accompanying letter there was reference to the Race Relations Act 1976 and the Sex Discrimination Act 1975.

(i) having mentioned Unfair Dismissal) it said:

"(ii) The Respondent has committed or is to be treated as having committed an act of discrimination which is unlawful by virtue of; (a) Part 11 of the Race Relations Act 1976; and/or (b) Part 11 of the Sex Discrimination Act 1975;
(iii) The Respondent has committed or is to be treated as having committed an act of victimisation which is unlawful by virtue of(a) Part 11 of the Race Relations Act 1976; and/or(b) Part 11 of the Sex Discrimination Act 1975.On 2nd April 1998, the Respondent Trust lodged its form IT.3 which said that Mr Addoo had been dismissed for gross misconduct, but it also raised the point that the complaint, if any, under the 1976 Act and 1975 Act was totally unclear. What they said was this:
"1.1 In box 1 Mr Addoo states his complaint as unfair dismissal yet in his supporting documentation he also refers in broad terms to discrimination by virtue of the Race Relations Act and Sex Discrimination Act of victimisation by virtue of the Race Relations Act and Sex Discrimination Act.
1.2 What is unclear within the documentation is whether the discrimination/victimisation is direct or indirect and whether it applies to both sex and race.1.3 In the documentation, Mr Addoo does not plead any details. In order to respond fully, the Trust requires clarification in respect of specific incidents: names, dates etc, for each act of race/sex discrimination or victimisation.1.4 In Point 7, Mr Addoo states:
"By reasons of the matters aforesaid amongst other things"
. In order to respond the Trust requires clarification on the specifics of "amongst other things".In their summary, in their IT.3, the Trust said that they requested that clarification was sought from Mr Addoo in respect of the specific claims made. That was a perfectly reasonable response.On 20th July 1998, the Chairman ordered Particulars to be given by 31st July 1998. The Order on that day, said:
"Of her own motion, the Chairman of the Tribunal orders that on or before 31st July 1998 you send to the Respondent the Further and Better Particulars in relation to the complaint of direct racial discrimination and direct sex discrimination of the incident that the Applicant relied upon in which he alleges that Sister Maxwell was involved, which incident took place in or about 1985, together with any documentary evidence as to what action the Respondent took as a result of the incident and that by the same date you send a copy to this office."
One notices there a reference to 1985 and Sister Maxwell. There is, apparently, in the chronology the fact that there had been some interlocutory hearing on 17th July 1998 and it can only have been then - and this has, in fact, been confirmed to us by Miss Brown - that the detail, such as it was, of Sister Maxwell and the incident in 1985 emerged. So some form of explanation must have been given. But in that Order for Particulars, there was, as is not uncommon, a specific note:
"Failure to comply with any Order of the Tribunal may result in the Originating Application being struck out in whole or in part before or at the Hearing and the proceedings dismissed or the Respondent being debarred from defending altogether."
So there was a specific warning not only that part of the claim might be struck out but, if there was no compliance, the whole of the claim might be struck out. That was reiterated in a further part of the note which said:
"Failure to comply with any Order of the Tribunal may also result in the whole or part of the Originating Application being struck out at or before the Hearing."
So it must have been quite clear to Mr Addoo, on reviewing that, that he was in some jeopardy as to the whole of his case if he failed to comply with the Order for Particulars. It is to be borne in mind that if the Racial Discrimination or Sexual Discrimination complaints related only to events in 1985, they would of course, be hopelessly time-barred. The time-bar emerges after 3 months and, consistent with the time-bar, the incident in 1985, if it was to be relied upon at all at any hearing, could only be relied upon as being some component pointing towards an unfair dismissal.No application was made to set aside the Order of the 20th July 1998, although the Chairman's letter specifically mentioned that as a possibility. No Appeal was made against it and no Review was sought of it. Indeed, to some extent, Mr Addoo gave sustenance to the Order by asking for an extension of time, which he did on 14th August 1998.On 19th August 1998, the Employment Tribunal extended time to 27th August but they accompanied it with a further warning that if he did not comply consideration would be given as to whether the Originating Application - that is to say, the whole of it - should be struck out. There was, unfortunately, no compliance and so on 7th September 1998 a letter was written to Mr Addoo. The Applicant was warned that unless reasons were given within 14 days as to why an Order should not be made a Chairman would consider striking out the Originating Application for non-compliance with the Order. So it must have been quite clearly visible to Mr Addoo that he was in real jeopardy unless he came up with Full Particulars. Unfortunately, he did not come up with full, or indeed, any of the specified particulars.There is a requirement in Rule 4(7) of the Industrial Tribunal (Constitution) Regulations 1993 where the paragraph ends:
"A Tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with a requirement giving him an opportunity to show cause why the Tribunal shall not do so."
It seems to us that the letter of 7th September 1998 that is recited in the Striking Out Order gave that opportunity sufficiently.And so it was that on the 30th September 1998 the Striking Out Order was made. Paragraph 5 of the Extended Reasons says:
"No reasons having been provided in answer to that letter [that is the letter of 7th September 1998] I order that the Originating Application be struck out."

The formal part of the Order reads

"In exercise of the powers conferred upon me under Rule 4(7) of the Employment Tribunal's Rules of Procedure 1993, I Order that the Originating Application be struck out for the Applicant's failure to comply with the Tribunal's Order for Further Particulars dated 29th July 1998."
On the 9th November 1998, Mr Addoo lodged a Notice of Appeal. I do not think, given that we have the assistance of Miss Brown on behalf of Mr Addoo, that we need go through those grounds one by one because she has argued the case in a different and better way but suffice it to say that in that Notice of Appeal, it is not possible to detect any allegation that there was an error of law as opposed to matters of fact. It has to be borne in mind that the concept of justice involves fair dealing not just with the Applicant but also with the Respondent to a complaint. A Respondent is entitled to know just what he or it is accused of having done and that is particularly appropriate in cases of serious matters such as Racial Discrimination or Sexual Discrimination. It is also, in order to be just to a Respondent, fair that complaints should not hang over their heads unnecessarily long. Racial Discrimination or Sexual Discrimination are serious allegations, yet Mr Addoo's complaint, even as expanded in the correspondence which we have since been shown, remained hopelessly unspecific. It is common, of course, to give a degree of latitude to litigants in person, as Mr Addoo was in those earlier stages, but some discipline is necessary in order for the just progress of cases. Mr Addoo had ample opportunity to specify just what his case was and it was made quite plain to him what the consequences of his failure to do so might be and yet, he failed. It could be that many Employment Tribunals would have struck out only the sexual discrimination or racial discrimination aspects of Mr Addoo's complaint. The difficulty is that the matters are not easily separable. In his attached letter to his IT.1, which claimed for unfair dismissal, he raises discrimination and sexual discrimination and in the para 11(7) he said "by reason of the matters aforesaid .....", which on the face of things, referred to the whole of the preceding pages, "..... the Applicant was dismissed from employment." It does seem that Mr Addoo was intending to intermingle race discrimination and sex discrimination allegations as a component of unfair dismissal, and indeed, having regard to the time-bar, it could only be that he had that in mind, if he had anything in mind on this subject, because, of course, as separate complaints the events of 1985 were hopelessly time-barred.Miss Brown concentrates, rightly in our view, on the possibility that the Employment Tribunal could (and, she would say, should) have struck out only the racial discrimination and sexual discrimination aspects of the case and have allowed the unfair dismissal aspect to continue. But the question is, given that the Employment Tribunal has a discretion and given that that discretion included the ability to strike out the whole, could it here by said necessarily to have been error of law to have struck out the whole than merely the part? On balance, we feel it is impossible to conclude that there was an error of law in the Tribunal's exercise of its discretion whereby it struck out the whole. There was an intermingling of the claims which meant that it was difficult to separate the two, and, in any event, Mr Addoo had been clearly warned, more than once, that a consequence of failure on his part to supply particulars was not merely that the racial discrimination and sex discrimination aspects might be struck out but that the whole might be struck out.Therefore, we see no arguable error of law and we dismiss the Appeal even at this stage.We thank Miss Brown again for the help that she has been able to give us.