MR B AFOLAYAN v STAR TEXACO LTD & OTHERS [1999] UKEAT 888_98_1005

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 888_98_1005

Case No Appeal No. EAT/888/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B AFOLAYANAPPELLANT

STAR TEXACO LTD & OTHERSRESPONDENT

Before

Mr Justice Morison

Date 10 May 1999

[1]) Messrs Cooper Whiteman 45 Doughty Street London WC1N 2PL MR JUSTICE MORISON (PRESIDENT): This is an Appeal against a decision of an Employment Tribunal Chairman sitting alone on 12 th May 1998 in which he decided that the Applicant's complaint of unlawful discrimination on grounds of race should be struck out. We take it that he was exercising or purporting to exercise his power under Rule 13(2)(d) of the Industrial Tribunal's (Constitutional etc) Regulations 1993 Schedule I. The basis upon which the complaints were struck out were "on the grounds that no arguable basis has been identified upon which the complaints could succeed, so that it can only be said that they are frivolous and vexatious". We understand that to mean that he was of the view that the Originating Application did not disclose a cause of action and therefore was frivolous and vexatious. The circumstances giving rise to the Tribunal's decision is somewhat complicated and we shall elaborate it. In doing so, we would like to pay tribute to both Counsel who have assisted us on this Appeal and have drawn our attention to the documents in a helpful way. The Originating Application making a complaint of unlawful race discrimination was presented to the Employment Tribunal on 28 th October 1996. Under para 12, which is the details of the complaint, the Applicant had written some 4 type-script pages of details.

[2]The precise terms of the complaint do not seem to us to matter at this time, although we shall be referring back to them in due course. For their part, the employers filed an IT.3 Notice of Appearance giving very full details, running to 22 paragraphs of the reasons why the Applicant's complaint was rejected. That Notice of Appearance is dated 27 th November 1996. There was no suggestion by either party of the other that their cases had not been properly set out, until the case came on for hearing on 22 nd January 1998. At that time, by a decision which was sent to the parties on 23 rd January 1998 the Tribunal adjourned what was intended to be the full hearing of the complaint because they were of the view that the case was not yet ready for hearing. They said this: "The complaint of the Applicant has not been set out in such a way as to indicate the basis upon which he complains. That the treatment of him by the Respondents was discrimination on the grounds of his race".

[3]They went on to indicate that the complaint had been presented to them as long ago as the 26 th October 1996 (they mean the 28 th October) and that it had been prepared with the assistance of a Law Centre. "There is nothing in the particulars provided to suggest that Mr Afolayan, the Applicant, had been dismissed by the Respondents. Rather the particulars provide a catalogue of complaints of unfair treatment. There is nothing in the particulars provided to indicate the basis upon which it is said that such unfair treatment was discrimination on racial grounds."

[4]They went on at para 4 to deal with the Employer's suggestion that the complaint should be struck out on the grounds of being frivolous and vexatious and on the basis that the complaint did not have any reasonable prospect of success. The Tribunal rejected that application in these terms:

"Whilst we have some sympathy with the basis of that application we do not consider that it would be in the interests of justice to strike out the Applicant's complaint. That is because neither at the request of the Respondents nor of the Tribunal's own motion has the Applicant been asked to clarify the basis of his complaint. We considered that he should be given at least one opportunity to redress the deficiencies in the particulars thus far provided. The Respondents' remedy, should they be so minded, must lie under the provisions of Rule 12 of the Rules of Procedure 1993."

[5]The provisions of Rule 12 are the cost provisions. Having decided to postpone the hearing the Tribunal indicated that it would make directions which were enclosed separately with the decision. Those directions, dated 23 rd January, contain these two paragraphs:

"For reasons referred to at the Hearing and in the Reasons attached to the postponement decision the Tribunal do not consider that the complaint of the Applicant has been set out with sufficient particularity. He has failed to identify any basis upon which it could be concluded, that the treatment of him by the Respondents was discrimination on the grounds of his race. The Applicant is to have 14 days from the date of this letter to identify in proper form the basis of his complaint. This claim is already over a year old and it is intended that this direction be strictly adhered to. If the Applicant does not comply with the direction within 14 days he should, within that period, show cause why the complaint should not be struck out as frivolous and vexatious."

[6]It was indicated in the Order for Directions that 2 days had been set aside for the hearing of the complaint. It is to be observed in passing that the Order of the Tribunal for Further Particulars was not in response to any written request and therefore the Order for Particulars was not targeted at any particular shortcoming in the Particulars supplied of the details of the IT.1. The order was to identify "in proper form", the basis of the complaint. Whether such an Order is appropriate is a matter that we shall consider in due course.

[7]After that Order had been made the sequence of events is as follows.

[8]On 4 th February 1998 the Applicant delivered some Further Particulars. Those Particulars relate to an allegation in para 5 that he had been required by his employers to empty his pockets at a particular meeting, open his wallet and to have some of his papers seized as he alleged, and to para 6, where he was contending that a manager behaved in a particular way towards him and suspended him for 1 week because of his black race, which is an allegation of discrimination on the grounds of his colour and of ethnic origin, presumably.

[9]On 27 th February 1998, the employers wrote to the Stockwell & Clapham Law Centre, the Applicant's advisers, about the Particulars which had been supplied. Amongst other requests they said:

"Would you please let us have details of all the white and Asian Employees of the First Respondent whose circumstances were similar to the Applicant in the manner pleaded in paras 5 and 6 of the IT.1 who were treated more favourably than the Applicant ."

[10]They observed that this was the crux of the case and accordingly, was essential, as they put it, for their clients to have their information. They asked for a reply within 7 days.

[11]On 8 th March 1998, the solicitors for the Respondents wrote to the Tribunals and referred back to their letter which had been copied to the Tribunal dated 27 th February. They wrote this:

"We accordingly be obliged if you would treat this letter as our application for a Preliminary Hearing to deal with the following matters: 1. An Application to strike out the Applicant's case on the grounds that it is frivolous and discloses no cause of action; 2. In the alternative, to put the Applicant on notice that a Costs Order will be made against him if the matter does proceed to a Full Hearing and he is unsuccessful at that Hearing. We would not propose to call any witnesses at the Preliminary Hearing and would imagine that it should not occupy the Tribunal's time for more than 30 minutes."

[12]The Tribunal did not respond to that letter, so again, a week later the solicitors wrote to the Tribunal referring them to their letter of 8 th March and said they were awaiting notification of the Preliminary Hearing and in the meantime, they enclosed a copy of a letter which they had received from the Applicant's representatives.

[13]On 16 th March 1998, the solicitors for the Respondents wrote to the Applicant's representatives and responded to their request for Further Particulars saying they regarded much of what was being requested as a "fishing expedition".

[14]On 17 th March 1998, the Tribunal said this in a letter addressed to the Respondents' solicitors and copied to the Applicant's advisers:

"I have referred your request for a Pre-hearing Review to a Chairman of the Tribunals who has refused the application on the ground that the triable issues are adequately defined and there will be no saving in time and costs in holding a Pre-hearing Review. The Tribunal cannot reach the view that the contentions put forward by the Applicant/Respondent have no reasonable prospect of success without hearing all evidence and no such evidence is received at a Pre-hearing Review."

[15]It seems to us that that letter is a full and proper response to the application which had been made to them in the Respondent's letter of 27 th February 1998.

[16]A week later, on 24 th March 1998, the Tribunal sent a letter to both parties which has given rise to some difficulty. The letter appears to be in standard form in the sense that it has, at the bottom of it, a form number, IH 46 and under the name of the case which is highlighted, it says this:

"A Chairman of the Tribunals considers that a Hearing for Directions (and the words Hearing for Directions have been highlighted on the computer) is desirable in this case. The Hearing will take place before a Chairman sitting alone to…." and then it sets out "various matters between (a) and (f) of which only two are relevant. (b) Consider what if any orders are required for disclosure of documents and the attendance of witnesses. (That (b) is highlighted on the computer) (f) To consider the application to strike out complaint."

[17]This form has caused confusion in this case and we wished to invite the Tribunals to consider carefully, whether in future it is appropriate to send out such a letter in this format. It could be thought that the Tribunal were fixing the Hearing for Directions to consider what, if any, Orders were required for disclosure of documents and the attendance of witnesses because that was the only one of the specified matters which had been highlighted on the computer. It would look as though (a), which was to clarify the issues in the case and give any necessary Orders for Further Particulars, cannot have been regarded by the Tribunal as being pertinent having regard to the decision which had been made and recorded in a document a week before. On the other hand, it could be said that the Tribunal were simply highlighting that which they regarded as the most important, or that there was some peculiarity about their machine which always highlighted (b). In any event, it has been contended on behalf of the employers that this was a Notice of a Hearing to consider, amongst other things, the application to strike out the complaint.

[18]On 6 th April 1998, yet Further Particulars were provided purported to answer the problems which had been previously identified by the employers.

[19]On 8 th April 1998, the date for the Hearing for Directions was listed as for 12 th May 1998 at Stratford.

[20]On 13 th April 1998, the solicitors for the Respondents wrote to the Law Centre advising the Applicant saying that the Particulars which had just recently been given "… do not in fact accord with the request made and raise a whole new series of allegations which have never previously been made. We accordingly reserve our right to continue with the Strike-out application on the Directions Hearing which has been fixed for 12 th May. This letter has been copied to the Tribunal."

[21]On 17 th April 1998, the Law Centre acknowledged receipt of that letter and said:

"We note the contents of your letter and will only state that we have complied with the Tribunal's Order and will resist your application to strike out the Applicant's claim. With regards to your second letter, we are taking our client's instructions and will respond accordingly. This letter has been copied to the Tribunal."

[22]The matter then came before the Tribunal Chairman, sitting on his own and it is his decision which has given rise to this Appeal. There is a dispute between the parties as to what happened at the hearing. Mr Soor of Counsel representing the employers, who was present at the Employment Tribunal, was clearly of the recollection that the purport of the meeting on 12 th May was to consider what the employers had wished to raise; namely, their application that the IT.1 should be struck out. The Applicant himself who was present, together with the person who was representing him from the Law Centre, have both sworn affidavits in which they set out their belief that they had been taken by surprise by the suggestion that the hearing was to consider the strike-out. It is suggested by both of them that that was not what the hearing was concerned with to the best of their recollection, and therefore, when they received the written decision of the Tribunal, they were surprised to note that the claim had been struck out.

[23]The Affidavit of the representative for the Applicant was received too late to be submitted to the Employment Tribunal Chairman for his comments, but he saw the Applicant's own affidavit and the Chairman says this:

"The assertion that the Applicant was unaware that he faced the risk of a striking out appears to be dealt with at para 2 of the Extended Reasons. I attach a copy of the letter from this office to the parties dated 24 th March 1998 which, as you will see, includes a specific reference to striking out as one of the matters to be considered at the Directions Hearing."

[24]The paragraph in question of the Tribunal's decision says, and I think I have quoted already:

"The Respondent's say the requirement has not been met and this Hearing has been convened (inter alia) to consider the Respondent's application that the complaint should be struck out."

[25]On behalf of the Appellant it has been submitted to us that the requirements of Rule 13(3) have not been complied with. 13(3) requires the Tribunal to send notice to a party against whom it is proposed that the Order should be made, that is, to the order striking out a case in this particular example, giving him an opportunity to show cause why the order should not be made, but this paragraph shall not be taken to require the Tribunal to send such notice to that party, if the party has been given an opportunity to show cause orally why the Order should not be made. It was submitted to us that the first part of the Rule had not been complied with. No Notice had been sent to the party against whom it was proposed that the Order should be made, because the proper interpretation of the Notice dated 24 th March 1998, was simply that the Tribunal was going to be dealing with the question of discovery and attendance of witnesses as a result of that paragraph in the letter being highlighted and none of the others being highlighted. Accordingly, the question arose as to whether the Applicant had been told orally that there was a proposal that his case should be struck out and that he had had a fair opportunity of dealing with it. On this, as we have indicated, there is an unfortunate conflict of recollection.

[26]It was also submitted to us that the Chairman should not have been sitting on his own if he was to dispose of a race or sex discrimination case. This is not one of those matters listed in Section 4 of the Industrial Tribunal Act 1996 which entitles a Chairman to sit on his own. His only power to do so must derive from the fact that these were interlocutory proceedings where the rules appear to contemplate that in such proceedings a Chairman may sit on his own, but Counsel submitted that, having regard to guidance given by this Court in the past, Tribunals should sit as a full panel when dealing with cases such as these, even at an interlocutory stage if the Tribunal is minded to get rid of the case by striking it out.

[27]For the Respondents it was submitted to us that, effectively, the Applicant has had plenty of opportunity to advance his case and had plenty of notice that the Employer's Application that the case should be struck out as disclosing no reasonable cause of action was to be determined on the 12 th May. Mr Soor, who was there, told us that there was no objection taken at the Tribunal hearing when he advanced his case for striking out and he finds it, I think, impossible to understand how it comes about that neither the Applicant himself nor his representative was aware that he, Mr Soor, was advocating a striking out on the grounds that the case could not properly be heard and determined.

[28]He pointed out to us that the reason why it was necessary to have Further and Better Particulars of the complaint was not for any particular technical reason but such information was required, having regard to the terms of the IT.1 itself. Para 3 of the IT.1 unparticularised, said this:

"However, Miss Kelly failed to deal with the Applicant's grievance or his appraisal. He was told he would have to be transferred to Hounslow in order for the Manager to complete another assessment of the Applicant. The Applicant complained that he was being discriminated against and victimised because he had raised a grievance against his Manager without informing Miss Kelly, his Area Manager. The Applicant protested to Miss Kelly, who told him that she was not pleased by his letter to Mr King."

[29]Just pausing there, what is said by Mr Soor with some force as we see it, is that the motivation which was ascribed to the employers was not in connection with the complaint which he had made by way of a grievance in terms of a racial element, but rather, that she was dealing with him because she was put out by the way he had gone over her head. In other words, going over her head was the motivation for her actions and there is no evidence that it is part of the Applicant's case that she was upset by this because of his race. In other words, it would appear that race has got nothing whatever to do with that part of his complaint.

[30]The same could be said for the Further Particulars which had been provided by the Applicant. At page 83 of our file, in the letter of 6 th April 1998 and 3 rd April (it appears to be variously dated) 3 paragraphs up from that letter it says this:

"At the disciplinary hearing on the 13 th August, Miss Kelly arbitarily demoted (and subsequently suspended) the applicant before a full hearing of the applicant's case, to his knowledge no other employee, Asian or white was treated in such a manner."

[31]Again, Mr Soor quite rightly makes the point that it does not appear to him to constitute a complaint of discrimination on the grounds of race. Indeed, it appears to be a complaint which has no racial connotation at all, since no other employee, Asian or white, was treated in such a manner. Thus, he says the Further and Better Particulars were genuinely required and they had been pressing for them so that they could prepare themselves properly for the hearing, and in those circumstances, he says that the Tribunal complied with its obligations under para 13(3) and that the Appeal should be dismissed. He dealt with the other grounds of Appeal, but it seems to us that the real point at issue relates to what the Tribunal should do when it is considering an application to strike out as the Tribunal apparently considered it was doing when it gave its decision under Appeal.

[32]We have not found this at all easy. Not least because the Employment Appeal Tribunal has great respect for Mr Soor who appears here regularly, Speaking for myself as President, when Mr Soor tells me, as he did, that it must have been quite apparent to everybody at the hearing on 12 th May that he was applying to strike the case out, I accept without hesitation what he says. But the problem of course, is that we are confronted with two affidavits in the other Direction and all one can say is there must be a risk, we consider, that the Applicant and his representative, albeit inexplicably, did not fully appreciate that at the hearing on 12 th May that was what was on the agenda. If the case had rested solely on a difference in recollection we would not have been minded to have allowed this Appeal, but it does seem to us that what has happened here can be described as a procedural mishap.

[33]I return to the Orders which have been made by the Employment Tribunal in this case. It seems to us clear, on 17 th March 1998, that the Employment Tribunal was expressly rejecting a suggestion that the case should be struck out because of lack of particularity of the application. It was the Tribunal's view, as expressed in the decision of 17 th March 1998, that the triable issues were, at that time, adequately defined. Furthermore, they were of the view that before a case could be struck out on the basis that it had no reasonable prospect of success, it would be necessary for oral evidence to be taken from the Applicant to give him a chance to explain why it was that he said the treatment about which he was complaining related to his race.

[34]That decision was followed by a Notice to which we have referred, on 24 th March 1998. We have to say that that Notice is unsatisfactory in its form. It seemed to the President at any rate, that on the reading of that letter it was clear that the Tribunal were only going to consider at the forthcoming hearing what Orders, if any, were required for disclosure of documents and the attendance of witnesses. He would have taken that view because of the way the document was structured and highlighted and having regard to the fact that it was unlikely that the Tribunal was concerned with (a). It seems to us that Industrial Tribunals should not use standard form letters when giving legal decisions unless it is clear what points are being made. The danger of using a standard form letter is that it cannot easily or readily be adjusted to the particular circumstances of the case as here. Although they said in (f) that they were to consider the application to strike out complaint, at the time when that letter was written on 24 th March, insofar as an application to strike out had been made it had already been turned down by the Tribunal 7 days before. There was no further application to strike out the complaint which was extant at that time.

[35]Accordingly, it seems to us, that what has happened here can only be described as a procedural mishap. We accept that although the employers have written to say that they were going to put on the agenda an application to strike out in their letter of 13 th April 1998, it did not follow that at the hearing the Tribunal would be prepared to deal with it, not least because it would appear that on 17 th March that possibility had already been dealt with. Therefore, in our judgment no sufficient written notice had been given by the Tribunal that it was proposing to consider the question of striking out. In those circumstances, it all hinges on precisely what happened at the Employment Tribunal hearing on 12 th May and whether what happened constituted sufficient and proper notice to the party that he was faced with a striking out application.

[36]We wish to emphasise that nothing we say should cast any doubt at all on the integrity of Mr Soor's position. We have no doubt at all that from his perspective and that of his clients, that is precisely what the Tribunal was considering. But in the light of the affidavit that we have been provided with and in the light of the Chairman's comments, it does seems to us possible that there has been a misunderstanding in this case. That misunderstanding should not have arisen because it seems to us, in normal circumstances, an Employment Tribunal should be in a position to give written notification in a case such as this, of the fact that an application to strike out was on the agenda. It is not without significance that the Chairman himself referred to the letter of 24 th March as being notification that such an application was being made whereas, we think that letter was at the best, misleading.

[37]In any event, it seems to us, that before a case such as this is struck out it will often be appropriate for the Employment Tribunal if not invariably appropriate to give the Applicant himself or herself an opportunity to explain more fully why it is that their complaint is one which should be heard and determined by the Tribunal. This was a case where the Applicant should have been invited as the Tribunal thought on 17 th March 1998, to explain how he put his case himself. It is essential that Employment Tribunals should not become complicated by requests for particulars and details and forms. The essence of the jurisdiction is that parties should be able to go to the Employment Tribunal relatively easily in terms of the completion of an IT.1 and any necessary proper particulars. That is not to say that employers should be left in a position where they do not understand the case against them and there may well be cases where it is essential that complaints about lack of particularity should be pursued before the Tribunal, ultimately, if needs be leading to an Order that the case be struck out. But that step should be taken carefully, and only after the Tribunal has satisfied itself that it is not just a question of form but indeed, in substance the Applicant has no genuine case to advance.

[38]The result of this is that we have been left with a feeling of discomfort about what has happened in this case, through no fault of the parties. It seems to us that the Tribunal has not done what was required of it which was to give proper notification in writing of the intention to hold a striking out hearing, and, if it was going to do so, to give the Applicant an opportunity, if he wanted it, to amplify his complaint by what he said at the witness table. But that said, it seems to us that there are obvious defects in the claim as presented by the Applicant in the respects which we have indicated and we are not of the view that the right course is for this case to proceed immediately to a full hearing before an Employment Tribunal. We consider that there needs to be a hearing to determine precisely what it is that the Applicant is saying and that the Respondent, employers should be given the opportunity to have their case considered that there is nothing in the application as it stands which raises a case of racial discrimination against them. In other words, it seems to us that what is needed in this case is a proper consideration after due notice has been given of the Respondents' application to strike out this complaint. At that hearing, it will be open, as it seems to us, to the Applicant, not his witnesses but to the Applicant, to explain to the Tribunal on oath how he puts his case and on the basis of that additional material, it should then be possible for the Tribunal to say whether he has advanced any sensible case of unlawful discrimination on grounds of race.

[39]Mr Afolayan will know that there is a distinction to be drawn between an employer who behaves unfairly and unreasonably on the one hand, and an employer who behaves unfairly and unreasonably on grounds of race on the other. It is only if there is a connection between the race of the individual or the colour as the case might be and the treatment which has been accorded to him that there can be a viable complaint under the discrimination legislation.

[41]In those circumstances, the Appeal will be allowed and the matter remitted back, as I have indicated, for hearing before a freshly constituted Tribunal. We think it would be of advantage if the Chairman was to be supported by two lay representatives, even though at the moment, as it seems to us, a Chairman was entitled to adjudicate on this matter on his own, I would like to leave open the question as to whether he was lawfully entitled to do so under the terms of the Statute and the Rules for another occasion, but it seems to us, that in this case, the application to strike out should be heard by a full panel of lay members and Chairman. That is on the assumption that the employers wish to run this argument. If they do not, then of course, the case can be set down for hearing in the normal way.