(1) MR F ROBINSON (2) MRS V TANNER v SWALLOWFIELD CONSUMER PRODUCTS [1999] UKEAT 695_99_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 695_99_1910Case No Appeal No. EAT/695/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR F ROBINSON (2) MRS V TANNERAPPELLANTSWALLOWFIELD CONSUMER PRODUCTSRESPONDENT
Before
Mr Justice Holland Mr P DawsonDate 19 October 1999
[1]APPEARANCES For the Appellants MR N D HART (Solicitor) Messrs Slee Blackwell Solicitors 10 Cross Street Barnstaple Devon EX31 1BA MR JUSTICE HOLLAND : By an IT 1 of 23rd February 1999, Mr Robinson complained of unfair dismissal by his employers, Swallowfield Consumers Products. That complaint was to be associated with a similar complaint by a fellow employee, Mrs Violet Tanner. By an IT 1 of the same date she complained similarly of unfair dismissal by the same respondent. Why the matters go together is because there is some common background in terms of fact, namely that the dismissals seemingly flowed from an attempt by the respondents to reorganise their shift working.[2]We need, for present purposes, say no more about the nature of complaints, we can go to why the matter comes before us. Seemingly at the instigation of the respondents to the complaints there was hearing before the Employment Tribunal sitting in Exeter on 29th April 1999 which hearing was conducted by reference to Rule 7, Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993. By Rule 7(4) it is provided:
"If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter."
[3]With that provision to mind, we turn to the order made by the tribunal:
"On the Pre-Hearing Review the Tribunal considers: (1) that the claims by Mr Robinson and Mrs Tanner have no reasonable prospect of success."
[4]At the same hearing the tribunal was similarly concerned with a complaint made by another former work colleague of Mr Robinson and Mrs Tanner, namely Mrs Mills. In her case, the tribunal refused to make a similar finding.[5]Developing the matter in some short reasons, the tribunal dealt with the cases of Mr Robinson and Mrs Tanner together and did so in these terms:
"1 … There was a reorganisation of the working hours and a change in the shift pattern. The two applicants were unable or unwilling, and that is not necessarily any criticism of them, to fit in. It is suggested that because most of the employees agreed to the change the respondents needs were satisfied. It seems to us totally impracticable to make exceptions on a shift system. If the majority has voted to accept a new shift system the very small minority cannot be dealt with as exceptions. 2. We take the view that in these two cases there is no reasonable prospect of success. 3. The Tribunal orders that pursuant to Rule 7(4) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, Mr Robinson and Mrs Tanner must pay a deposit of £50.00+ (each) as a condition of being permitted to continue to take part in the proceedings relating to this matter."
[6]In a separate ruling the tribunal noted that in Mrs Mills' case there was a conflict of evidence on a vital issue and for that reason declined to make a like ruling.[7]The overall consequences for Mr Robinson and Mrs Tanner were first, the need to pay the respective deposits; but second, to be confronted thereafter with a potential risk in terms of costs, all that is spelled out in the Notes to the Order.[8]On behalf of these two applicants, Mr Hart has argued that the decision of the tribunal can arguably be faulted as to law and that in those circumstances the matter should now go forward for an inter partes hearing at which the appeal can be heard. He would submit that this is not a case in which there is no discernible point of law so that we could now dismiss it.[9]We having had the advantage of Mr Hart's submission and his skeleton argument, agree with him. We discern points of law that would justify a inter partes hearing. The points that we discern are as follows.[10]First and foremost, there is a question as to the capacity of this tribunal to reach a decision that either applicant had no reasonable prospect of successfully establishing unfair dismissal. We put the matter rhetorically. Could any such decision as to the weight of their respective cases be properly made in the absence of evidence and submissions upon such? This first point is encapsulated in the finding by the tribunal:
"It seems to us totally impracticable to make exceptions on a shift system"
Is that a finding that any tribunal can make, absent evidence?[11]The second concern we have is as to whether the tribunal could have reached this conclusion given the decision of the Employment Appeal Tribunal in St John of God (Care Services) Ltd v Brooks [1992] IRLR 546 .[12]The third and final point that we discern (and plainly a lesser point) is as to whether the decision to make a Rule 7(4) Order was arguably perverse, given that as at the date of making it the tribunal anticipated a hearing in any event, that is with respect to the associated complaint of Mrs Mills.[13]Those being the points that we discern, the matter will now go forward. We categorise this as Category C case. We anticipate a hearing of no more than two hours. We would order exchange of skeleton arguments 14 days before the hearing. We will invite this Appeal Tribunal to seek to find as early a hearing date as is possible. It is plain to us that this matter is effectively an interlocutory appeal and the sooner it is dealt with the better, so that if the appeal be successful there may be a timely hearing as to the true merits.