MRS M RAICHURA v LONDON BOROUGH OF HARROW & OTHERS [2000] UKEAT 434_00

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 434_00 EAT_0112Case No Appeal No. EAT/434/00 EAT/557/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M RAICHURAAPPELLANTLONDON BOROUGH OF HARROW & OTHERSRESPONDENT
Before
His Honour Judge D M LevyDate 1 December 2000
[1]APPEARANCES For the Appellant MS V BURNHAM Appearing under the Employment Law Appeal Advice Scheme JUDGE D M LEVY QC We have before us today the preliminary hearing of two appeals by Mrs Raichura (the Appellant). The appeals arise in these circumstances: the Employment Tribunal made an Order on 2 February 2000 ("the Order"). We find this information from a decision which we understand was made by Mr Flint sitting as a Chairman at London North on 16 March 2000 in which he refers to the Order and on an application for Review, dismissed the application. A third complaint by the Appellant is still to be determined by the Employment Tribunal. The first appeal is against the Order.[2]By the Order, two claims which the Appellant had made: alleging racial discrimination and racial harassment were struck out because of the failure of the Appellant to give particulars of her claims. We have had assistance from Ms Burnham on the ELAAS scheme, helpfully identifying for us the main ground of the appeal.[3]It is this: prior to the hearing on 2 February 2000, notification had been given to the Appellant that further and better particulars would be needed of her application. This is to be found in a letter of 8 November from the Employment Tribunal to her, in which paragraph 5 reads:
"Having regard to all these matters you are required to show cause i.e. give reasons why these two applications should not be struck out because of your failure to give proper particulars as directed at the earlier hearing for directions. Cause must be shown on or before Wednesday 8 December."
[4]There was correspondence from the Appellant to the Chairman in which she complained that she had written for an adjournment of the hearing and had not had any reply to her application and therefore had not attended at it, but following that further correspondence, Mr Carl Banks wrote to her on 10 December, a letter on behalf of the Chairman which states in the third paragraph, at page 19 of our bundle:
"There is no question of striking out your claim as some of your claims are in time."
[5]Our attention is drawn to the Employment Tribunal's Constitution and Regulations 1993 Schedule 1 Rule 4(7):
"If a requirement under paragraph (1) or (3)" and this is for particulars "is not complied with …"
The provision for striking out:
"shall not strike out or direct unless it has sent notice to the party who had not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so."
It appears to us arguable that that proviso to the rule was not complied with in this case, and therefore there is an arguable case to go forward.[6]In the alternative Ms Burnham submits that it would be right to allow a further ground of appeal to go forward to a full hearing. In essence she submits that given various other factors, the decision to strike out on 3 February was perverse. Ms Burnham, having been instructed in this matter at the last moment, submits it would be appropriate for the Notice of Appeal to be amended to set up that ground in an appropriate chronological order. We will permit perversity to be a ground of appeal as an alternative to the alleged breach of the 1993 Regulations.[7]The second appeal by the Appellant, is against the Review decision, referred to above, (the "Review Decision") on 16 March 2000. The name of the Chairman is omitted at the top of the Decision but we understand that the decision was that of Mr Flint[8]The Chairman says in paragraph 2, that he refused the application for review on the grounds that in his opinion it had no reasonable grounds of success. If the Appellant succeeds on the appeal which she had leave to go to a full hearing, it seems to us that the review will fall by the wayside. In the course of the hearing on that appeal, the EAT will consider all the grounds in favour and against a strike-out on the first occasion, and therefore nothing will turn on the review.[9]In the circumstances, we will not allow this appeal against the Review Decision to go further. We would, as always, thank the representative of ELAAS who has helped us in this case. She managed to take us through the many papers with remarkable speed and dexterity. The amended Notice of Appeal should be served within 14 days. Category C, half a day.