MR S KHAN v ALCATEL SUBMARINE NETWORKS LTD [2000] UKEAT 454_00_0407
[1]APPEARANCES For the Appellant MR M SAHU (of Counsel) Instructed by: Messrs J.R.Jones 56A The Mall Ealing London W5 3TA JUDGE D WILCOX: This is an appeal against a decision of the Employment Tribunal sitting at Ashford on 9 February 2000, refusing the Applicant's request for review and also seeking leave to appeal on a number of grounds. The Appellant's first language is Urdu, he speaks some Punjabi, he has a facility in English language. It is said that his facility of the English language is rudimentary and he was at a disadvantage when coming to deal with evidence and matters canvassed before a Tribunal. That is the assertion. The Tribunal saw and heard him; he was cross-examined in fact before them, having given some evidence before them. None the less, two days out in the hearing, the representatives who were looking after his interests, asked for an adjournment to allow an interpreter to be appointed.[2]It is the Tribunal, master of its own procedures and having seen and heard the Appellant, were willing to grant that request but they took the view that this was a matter that should have been known to the Appellant and at least his representatives at the outset before the hearing commenced, thus time was wasted. They made an order whereby he was to pay the costs thrown away, limited to £500. It was ordered that he should file a witness statement, indicating those parts of his evidence that he was in doubt about or had not understood and it was on this basis that the hearing was adjourned to a date some time in January. It was an order Risi it would seem. It is clear that on the face of it there was no inquiry as to means. We take the view that it is arguable that there should have been an inquiry as to means at that stage.[3]We are told subsequently, that his union accepted responsibility for paying the £500 and then withdrew that offer. There is no evidence other than the Appellants assertion as to that. But suffice it to say there was a state of affairs that had arisen, that indicated or may have indicated that the Appellant was unable to meet the costs of paying the sum assessing by the Tribunal. We then move to a date in December. On 9 December the Tribunal were acquainted of the Appellant's difficulty as to payment. On 13 December they made an order on the application of the Respondent, striking out the originating application; that was an order that seems to have been made without notifying the Appellant of the application, and without giving him the opportunity of making any further representations, as to whether that strike out should occur.[4]Our attention has been drawn to r.13 (2) (e) and 13 (3) of the Employment Tribunal Regulations 1993 requiring that a Tribunal should send notice to the party against whom it is proposed, that such an order should be made, giving him an opportunity to show cause orally or by way of written representations, why the order should not be made. I make this comment: By his letter informing the Tribunal as to means on 9 December, he was in fact making written representations, albeit limited to means, but he was not expressly told of the application that it was proposed to be made. We think that it is arguable that he should have been told and we give leave for this second matter to be canvassed before a full Tribunal. Thirdly, it is complained of that the Tribunal did not grant a review, having evidence of his means that it is arguable had changed since the original date of the order, namely 29 September.[5]We think that it is arguable that that matter should have been further enquired into by a Tribunal. We give leave therefore on those three bases for this matter to proceed for full argument before a Tribunal. We ask that the Chairman do provide a note limited to what representations, if any, were made as to means on behalf of the Appellant as to the amount of costs sought by the Respondent and any comments he may have to make, upon the issue of means and an inquiry on 29 September. This will be ½ a day, category C. The normal direction please as to skeleton arguments and a full chronology.