MR D SEECKUN v MRS L S WICKS [2000] UKEAT 1193_99_0310

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1193_99_0310

Case No Appeal No. EAT/1193/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D SEECKUNAPPELLANT

MRS L S WICKSRESPONDENT

Before

Mr Justice Lindsay

Date 3 October 2000

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS For the Respondent MR N BOOTH (of Counsel) Messrs Brooke North Solicitors Crown House Great George Street Leeds LS1 3BR MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mr D Seeckun, in the matter Seeckun –v- Mrs L Wicks. Mr Seeckun appeals against the Registrar's Order striking out such parts of his Notice of Appeal as relate to complaints of prejudice, bias and misconduct on the part of the Employment Tribunal. It is important to note racial backgrounds here because they are asserted to be of relevance. Mr Seeckun comes from Mauritius. His wife, whom he says is a partner in the relevant business although not a party to the proceedings, is from Trinidad.

[2]On 16 April 1999, Mrs Wicks, an employee of the business run by Mr Seeckun and/or Mrs Seeckun, lodged an IT1 complaining of unfair dismissal and breach of contract. On 7 May, Mr Seeckun opposed that with an IT3. On 9 July 1999, there was a hearing at the Employment Tribunal before the Chairman, Mr Puttick, and two members, Mr Foster and Mr Crowley, all of whom, I am told by Mr Seeckun, are white.

[3]Mrs Wicks's claim succeeded. It was held that she had, indeed, been unfairly dismissed, and the Respondent, Mr Seeckun, was ordered to pay £2,970 odd in relation to unfair dismissal to her. It was also held against Mr Seeckun that he had been in breach of contract and Mrs Wicks was awarded £103.50 for that breach. That all appeared in a decision sent to the parties on 29 July of last year.

[4]On 31 August of last year a handwritten Notice of Appeal was received from Mr Seeckun and much of it was directed (not all of it, but much of it) to the Employment Tribunal's conduct at the hearing itself on 9 July. In particular there is complaint as to the Chairman, including an allegation that he displayed a racist attitude and was dishonest and one sided.

[5]On 4 November 1999, the Employment Appeal Tribunal wrote telling Mr Seeckun that a sworn affidavit on the subject of bias on the part of the Tribunal was required:

"You are required to provide a sworn affidavit in accordance with paragraph 9 of the Practice Direction if you wish to pursue allegations of bias"

Nothing was heard from Mr Seeckun or from advisers on his behalf.

[6]On 27 June, of this year (a very substantial gap) nothing having been heard in the meantime, the Employment Tribunal reminded Mr Seeckun that an affidavit was required and that none had been received and added the warning that there was a risk of his appeal in part being stuck out if no affidavit was received. What the letter said included this:

"I have not yet received an affidavit detailing your allegations of bias at the Employment Tribunal and would request that if you wish to pursue this matter, you lodge an affidavit/sworn statement within 14 days of the date of this letter. Failure to lodge the affidavit may result in the allegation of bias being struck out of your Notice of Appeal."

Nothing could be clearer. Still, nothing was heard.

[7]On 14 July, the Registrar made what is called an Unless Order. It says amongst other things:

"IT IS ORDERED that unless an affidavit is received by the EAT within 10 days of the date of this Order all allegations of bias or improper conduct contained in the Notice of Appeal will be struck out"

Even so, nothing was heard from Mr Seeckun or from any adviser on his part, and on 2 August, acting on that Unless Order, an order was made by the Registrar which included this:

"IT IS ORDERED that all allegations of bias or improper conduct contained in the Notice of Appeal dated the 26 th day of August 1999 be struck out"

. And in my particular copy I do not know whether this was sent to Mr Seeckun on the long letter which had been taken to stand as a Notice of Appeal, the passages of the relevant kind have been struck out, but there are still other parts of the Notice of Appeal which are not struck out and which are not in jeopardy. In other words, on any footing, some form of appeal by Mr Seeckun may go forward.

[8]That was the striking out order on 2 August. On 3 August, Mr Seeckun indicated he wished to appeal against that striking out order. One has to refer to the Employment Appeal Tribunal Practice Direction, paragraph 9, sub paragraph 1:

"I. A party who intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint. 2. In any such case, the Registrar may enquire of the party making the complaint, whether it is intended to proceed with it. If so, the Registrar will give appropriate directions for the hearing. 3. Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers, or any others who can give relevant evidence as to the facts which form the basis of the complaint, and the provision of further particulars of the matters relied on. 4. When the direction has been complied with the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he has, and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties. 5. A copy of any affidavit or of directions for further particulars will be supplied to the other side. 6. The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

[9]Now it is important that that practice be strictly adhered to. The Chairman and members of the Employment Tribunal will have, in most cases, heard very many appeals, as part of their ordinary practice, and it is important that the case that is put up against them in any one particular matter is quickly outlined and fully outlined so that informed comments can be asked for from the members of the Tribunal, including the Chairman, whilst the matter is still likely to be lively in their minds.

[10]Delay is important to avoid; here the position is that although the hearing was on 9 July 1999, still no affidavit has been received from Mr Seeckun in support of the allegations or detailing, as best he could the allegations in order that the matter could then be sent off to the Chairman for his comments, and if necessary, for the comments of the other lay members. Sometimes, of course, delay is inevitable; a party falls ill, goes abroad for a while or something of that nature; here no reason whatsoever, save the one I shall shortly come to, is given for the failure of Mr Seeckun to answer the request of 4 November 1999 or of 27 June 2000 or to act upon the Unless Order of 14 July 2000.

[11]The only explanation Mr Seeckun gives today is that he saw a solicitor and the solicitor said that an appeal would be expensive and would involve travel and legal costs and that he might as well drop it. But he says that after that, and presumably despite that, he prepared the letter which, as I mentioned, has been taken as the equivalent of a Notice of Appeal, and that was 31 August 1999.

[12]That does not provide any explanation of why there is no answer to the request of 4 November 1999 and the subsequent matters that I have mentioned. Mr Seeckun seeks to say that he did not know what an affidavit was. There is some difficulty in accepting that, given that he had seen solicitors, but, even so, if that was true, then why on earth was there not some response after 4 November 1999 saying "I am a lay person, I do not know what an affidavit is, please explain what is truly required of me". But there is no such contact at all and it might be noted from the correspondence that I have read that at points it is not the more technical term "affidavit" but the less technical and perhaps more obvious term "sworn statement" that is used.

[13]Given that there has been no explanation whatsoever that is adequate to explain the total lack of contact between the Employment Appeal Tribunal and Mr Seeckun on Mr Seeckun's part after the request of 4 November 1999, I find it quite impossible to do other than to dismiss this appeal. The appeal therefore will go ahead with the allegations of prejudice, bias and misconduct on the part of the Employment Tribunal struck out. But, as a modest comfort to Mr Seeckun, that does leave other parts which can at least go forward to a preliminary hearing. I simply uphold the Registrar's striking out order of 2 August, and order that all allegations of bias or improper conduct contained in the Notice of Appeal be struck out and order that the appeal against that order is dismissed.