Macmullen v. Cooke (t/a The Netherton Nursing Home) [1999] UKEAT 240_99_1905

EAT

Macmullen v. Cooke (t/a The Netherton Nursing Home)

[1999] UKEAT 240_99_1905 · 1999-05-19

JUDGE HAROLD WILSON :

This hearing has been concerned with the preliminary issues to do with the appeal against the Chairman's refusal to deliver extended reasons for the decision to strike out the applicant's Originating Application which alleged racial discrimination against her. That decision had been taken on or about the first day or two of June 1998 and was taken by a Chairman sitting alone because the applicant had failed to comply with an order dated 29 th April 1998. Summary reasons were attached to the decision which show that there had been an original order made on 3 rd March 1998 to provide full particulars of the allegations of racial discrimination. That order had been varied on 25 th March 1998. On 29 th March 1998, the order still not having been complied with, the tribunal made what is commonly called an 'unless order'. That is to say they ordered on 29 th April 1998 that the complaint of race discrimination should be struck out unless on or before 13 th May the applicant fully complied with the previous orders. The applicant was found to have failed so to comply. The Chairman, sitting alone, referred to the letter dated 13 th May 1998, received at the offices of the Employment Tribunals on 15 th May from the representative of the applicant, which had merely sent copies of documents. The Chairman found that this did not comply with the order that the applicant had failed to show cause why the Originating Application should not be struck out, and accordingly, it was struck out.

We have had the opportunity to consider the bundle of documents which was submitted by the person at that time representing the appellant and we can well see why the Chairman, sitting alone, concluded that the bundle did not comply with the order. It is a bundle of documents of a very general nature containing only one allegation, which by the broadest of interpretations, might be regarded as specific. But there are no particulars as required to substantiate allegations particularly of race discrimination.

The appellant sought to review that decision by the Chairman sitting alone and the matter came before a different Chairman sitting with two members on 27 th August 1998. It is noteworthy that the unanimous decision, in its first clause, extended the time for the applicant to make her application for review. The tribunal then went on to find that, upon review, it confirmed the decision of 9 th June 1998 to strike out the applicant's claim and refused the application of the applicant for variation or revocation. That decision is supported by summary reasons the fourth paragraph of which states:

"Even today the Tribunal does not have the Particulars, despite the fact that the Applicant's present Solicitors, who were instructed after the Order for striking out, wrote to the Applicant on 5 August with advice as to the manner in which she should proceed with the presentation of this application."

The tribunal went on to state:

"The Tribunal does not accept that it would be impossible to prepare the Particulars without obtaining case history papers from the Southampton Racial Equality Council. The Applicant must surely know the precise details of her race discrimination complaints because, after all, she would be the one who would have to give evidence about them in support of her case."

Upon receipt of that refusal, the appellant entered a Notice of Appeal, which was received by the offices of the Employment Appeal Tribunal on 28 th October 1998. The earlier decision had been promulgated on 8 th September 1998. It is at any rate questionable whether the Notice of Appeal was in time, but no point was taken on that. Neither do we, save to mention it because delay is at the root of this case.

Having received the Notice of Appeal the office of the Employment Appeal Tribunal pointed out to the appellant that it was not supported with extended written reasons. Accordingly, the appellant wrote to request written extended reasons from the Chairman who had presided on 27 th August 1998. By letter dated 27 th November 1998 the Chairman notified his refusal to provide those reasons because the request had been made out of time. He refused the application because it was not made until 20 th November 1998 and not received until 23 rd November 1998. There was therefore eight weeks delay with no explanation. The Chairman went on to say that there had been a history of delay on the part of the appellant, referring to the Order for Further and Better Particulars, the Order of 3 rd March 1998 and subsequent Orders, and pointing out that those Particulars had never been produced – not even at the hearing on 27 th August 1998.

The refusal or granting of a request for extended reasons out of time is a matter for the discretion of the Chairman concerned. So far as this tribunal is concerned, we have to examine the reasons he gave for refusal and unless it can be shown clearly that he exercised his discretion in a way which no reasonable Chairman properly directing himself would have exercised it, the application must fail.

We can see no reason to interfere with the way in which this Chairman exercised his discretion. Accordingly, on the preliminary point, there is no prospect of success. Were the matter to be argued fully this is no reasonable prospect of success either and the appeal is dismissed.

Having disposed of the preliminary point on the proposed appeal against the refusal to provide extended reasons, we have proceeded consider the effect of that decision on the substantive appeal. This is of course against the striking out of the appellant's application under the Race Relations Act 1976 for having failed to comply with Court Orders requiring her to provide Further and Better Particulars of her allegations. With the agreement of Ms Brown from ELAAS who represented the appellant's interests today, after a short adjournment, we proceeded to this part of the matter. The enquiry concerned whether or not there was any reason to depart from the usual practice set out in decision of William Hill Organisation v Gravas

[1990] IRLR 488

CA , where the usual practice in the absence of extended reasons is to dismiss the appeal itself because it cannot be properly continued without such reasons. Ms Brown referred us to the Employment Appeal Tribunal's more recent decision in the case of Wolesley Centers Ltd v Simmonds [1994]ICR 503. In particular she referred us to that part of the judgment to be found at page 507E. There,

Judge Hague QC presiding, stated that:

"In our judgment, it is clear from rule 32 and from the decision in William Hill Organisation Ltd v. Gavas that the appeal tribunal has a discretion whether or not to allow an appeal to proceed in the absence of full reasons. In that case, the appeal tribunal had "come to the conclusion that, in the absence of full reasons, it was quite impossible to adjudicate upon the matter being urged by way of appeal" and so refused to hear the appeal. …"

That was upheld by the Court of Appeal. However,

Judge Hague went on to say:

"We agree with Mr Bear, counsel for the employers, however, that there is no general principle that the absence of full reasons makes an appeal non-justiciable, and that the effect on non-compliance with rule 3(1)(c) depends on the circumstances in each case."

Ms Brown relied upon that statement to support her contention that, even though there are no extended reasons, because the summary reasons are unusually full, it will be possible to go ahead with the full hearing of this case.

We have had regard to the summary reasons with an eye to our other responsibility, which is to decide whether there is any prospect or reasonable chance of success on appeal and whether there has been any error of law which an appeal would correct. We have gone into detail with the summary reasons and we note that they rely quite clearly on the repeated failure of the appellant to comply with an Order made by the tribunal in the course of which there was at least one hearing. We note that the summary reasons recognised that the appellant has suffered difficulties at the hands of the Southampton Racial Equality Council, which was representing her, and we note that the tribunal concluded that there was ample opportunity to have taken other advice and/or to have complied with the Order on her own account. Paragraph 1(d) of the summary reasons records that even at the date of that hearing, which was 27 th August 1998, the tribunal still had not received the Particulars, despite the fact that the appellant's solicitors, who were instructed after the Order for striking out, had written to the appellant three weeks before on 5 th August with advice as to the manner in which she should proceed with the presentation of the application. The tribunal did not accept that it would be impossible to prepare the Particulars without obtaining case history papers from the Southampton Racial Equality Council, pointing out that the appellant must surely have known the details of her complaints, because she would have been the one to have given evidence about them.

We can find no error in law or in fact with the approach of the tribunal to the question whether or not to strike out the appellant's claims. Accordingly, we find that there is no reasonable prospect of success, were this appeal to be fully argued, and accordingly, we dismiss it.