Sproulls Solicitors v Bruce [1999] UKEAT 397_98_0103

EAT

Sproulls Solicitors v Bruce

[1999] UKEAT 397_98_0103 · 1999-03-01

MR JUSTICE HOLLAND : The Applicant in this matter, Mr V M Bruce, is severely disabled, so that he is reliant upon a wheelchair. As we understand it, he is a qualified solicitor. He lives in Ilkley in West Yorkshire. It would seem that he has been minded to seek to obtain employment as a solicitor elsewhere in the country. To that end (so he at least would say) he applied for a job as an assistant solicitor with Messrs Sproulls solicitors of Camelford in Cornwall. We need not develop the precise history of that application; suffice it note, first, that it was unsuccessful and, second, that it led to Mr Bruce making a complaint to an Employment Tribunal seemingly complaining of some form of discrimination or victimisation by reason of his disability. We have to put the matter in that way: the original IT1 is not before us.

Messrs Sproulls, seemingly discovered that this was not the only complaint that Mr Bruce had made, that there was something of a track record in terms of like complaints and having regard to that and having regard to the realities of the matter, they decided that they would seek to settle this claim for a hopefully modest sum. To that end, there were telephone conversations between Mr Bruce and Mr Sproull the senior partner of Messrs Sproulls. It may well be that having regard to the views of the latter about the nature of the claim and its bona fides , the telephone conversations were terse, but at all events they undoubtedly resulted in apparent agreement by Mr Bruce to settle his complaint for the sum of £750. We have before us the record of the Tribunal indicating just such a settlement.

Then, to the consternation of Messrs Sproulls, a further complaint was made by Mr Bruce: this we do have. It is dated 14 January 1999 and the nature of the complaint is "Discrimination by victimisation contrary to the Disability Discrimination Act 1995". It says that the date of the discriminatory act was on or after the 12 November 1998 and there then follow at some length the particulars of the discriminatory act. Essentially as we currently read those particulars (without, it has to be noted, the assistance of Mr Bruce himself) he appears to be complaining about the circumstances leading up to the settlement of the first complaint.

At all events, Messrs Sproulls, the Respondents, took the view that this application was indeed frivolous and vexatious and wished to strike it out as such.

That step in its turn has led to a great deal of toing and froing as to timing and as to locus. Crucial is a decision of a Chairman, Mr Sara, seemingly at Exeter, who decided on 16 February 1999 to remit this application, indeed the whole matter to Leeds for hearing. Turning as to why he took this view, he dealt with a matter thus. First he directed himself that the issue would require oral evidence about the terms of settlement of the first claim. His Extended Reasons then go on:

"3. The applicant originally stated that he would be happy to attend a hearing on 19 February. He subsequently suggested that the case should be considered on written representations, but it is now clear that the respondents are not prepared to agree that they will themselves not be present and represented at the hearing. On 5 February 1999 the applicant applied for a transfer of the hearing to the Leeds Employment Tribunal. He pointed out that as a disabled person he would have to arrange a helper to travel down and that a Truro venue would be more difficult for him. The application was dismissed on the grounds that the applicant had already stated that he was prepared to deal with the matter by written submissions and that, as the cause of action arose in Cornwall, it would be unreasonable to expect the respondents to travel to Leeds for the hearing.

4. On 7 February 1999 the applicant renewed his application for a postponement and a transfer and on 11 February the respondents provided their response. The applicant made it clear that his offer to have matter heard on written representations was dependent on the respondents' agreeing to this course. He also emphasised the probable need for oral evidence. He drew the Tribunal's attention to s.21 Disability Discrimination Act 1995 , which is not yet in force, but which may place on Employment Tribunals a duty to make adjustments for disabled people. It is clear that such an adjustment would include moving a hearing to a place which is more convenient for the disabled person.

5. It has also come to the Tribunal's notice that there are 23 other applications made by the applicant claiming disability discrimination against other potential employers. Eleven of these have been referred to the Leeds Regional Office. No doubt these will all give rise to applications by the respondents claiming that the proceeds are vexatious. It may well be convenient for all of these applications to strike out to be made together."

On the basis of all the foregoing, the Chairman decided that the transfer to Leeds would be justified. Since the matter is to be transferred to Leeds, it has been fixed for hearing on 15 April 1999. The Respondents appeal to this Tribunal primarily against the direction of the Chairman that there be a transfer to Leeds. The essential point that they make is that Mr Sara has proceeded on the basis of misinformation as to the fact of other like cases.

It is right to observe that Mr Bruce himself plainly had some difficulty in understanding this point, and the enquiries of this Tribunal with Leeds have indicated the following. There are it seems, just three matters at Leeds with Mr Bruce as Applicant which are still current. One such is part heard, one such is currently subject to an appeal by Mr Bruce to this Tribunal and the third is this particular matter.

True, there are some four other cases that are at Leeds, in which Mr Bruce is the Applicant but all those four are currently dormant. Thus it is, that there is no question of this matter being heard with other cases featuring like applications presently in Leeds: it is standing on its own, and it will have to be dealt with individually.

In the judgment of this Tribunal, remove that factual plank then the decision of the Chairman cannot be readily defended and indeed without such we surmise that he would have undoubtedly maintained the hearing in the south west, presumably at a Tribunal as directed by the local Regional Office, probably Truro.

Is there now a good reason to keep the matter at Leeds? It is entirely true that weight has to be given to the disability of the Applicant: that was plainly a factor before the Chairman and so it should have been, but it is not the only factor and on the other side of the scales there is the fact that a hearing in Leeds means that there is an alleged need for attendance on the part of Mr Sproull who is entitled to ask why he should come to Leeds to defend conduct that is complained of, which conduct took place in his office in Camelford - when this case is not now associated with others at Leeds.

With this revised perspective , we unhesitatingly uphold the appeal against the direction that the matter be transferred to Leeds. There is a further aspect of the matter, and that is the hearing date. The problem there is that Mr Sproull is away from his office for a long period until 1 July. We have pointed out in the course of argument that an application to strike out on the grounds that the complaint is frivolous and vexatious, is not normally supported by evidence. The standard approach to such an application is to take the facts as alleged by the Applicant and to consider the matter on that basis.

If we were confident that that was the way in which the matter would proceed, we would say no more about the matter of date; it would be a question of fixing such once the case is remitted back to the right Tribunal to suit the convenience of that Tribunal as well as of the parties.

However, we note, first, that Mr Sara himself thought that evidence might be required. We note yet further that the Applicant is in person and we note the role of Mr Sproull senior as being at the heart of any complaint, and in those circumstances, we would direct that no hearing of this matter should take place until after the 1 July. We are encouraged to take that view, having noticed representations on the part of the Applicant that there is no particular urgency about this matter, representations which strike us as being entirely realistic. Thus it is and we allow this appeal.