HARMONY HEALTHCARE PLC v MRS LISA MARGARET DREWERY [2000] UKEAT 866_00_2107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 866_00_2107Case No Appeal No. EAT/866/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HARMONY HEALTHCARE PLCAPPELLANTMRS LISA MARGARET DREWERYRESPONDENT
Before
His Honour Judge Peter Clark Mr J W Hougham Mr W MorrisDate 21 July 2000
[1]APPEARANCES For the Appellants MISS H MOUNTFIELD (of Counsel) Messrs Fladgate Fielder Solicitors 25 North Row London WC1R 1DJ For the Respondent THE RESPONDENT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK : This is an appeal by the respondent before the Leeds Employment Tribunal, chaired by Mr P A Morris, Harmony Health Care plc against the tribunal's decision, promulgated with extended reasons on 30th June 2000, striking out their Notice of Appearance under Rule 13(2)(e) of the Employment Tribunal Rules of Procedure 1993 and directing a date for the hearing of the applicant's complaint. We shall use the same description of the parties in this judgment as below. Striking out Rule 13(2)(e) was added to the Employment Tribunal Rules of Procedure by the Rule changes of 1993. Prior to that amendment the tribunal had no power to strike out an Originating Application or Notice of Appearance where a party behaved abusively or disruptively during a tribunal hearing. See Kelly v Ingersoll-Rand Co Ltd [1982] ICR 476 ; O'Keefe v Southampton City Council [1988] ICR 419 .[2]Rule 13(2)(e) provides, so far as is material:
"(2) A tribunal may- … (e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any … notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of … the respondent has been scandalous, frivolous or vexatious; …"
Rule 13(3) provides:
"(3) Before making an order under sub-paragraph (e) or paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made 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 why the order should not be made."
The facts[3]The applicant commenced these proceedings by an Originating Application dated 17th March 2000. She complained of constructive dismissal, breach of contract and unlawful deductions from wages on the part of her former employer, the respondent.[4]The respondent had taken out legal expenses insurance. Under the terms of the policy the insurers were to nominate a representative to act for the respondent in any proceedings covered by that policy. Having been served with the Originating Application in this case they contacted their insurers who nominated as their representative a company LPMS Limited. LPMS stands for Legal Personnel and Management Services; in other words employment consultants. LPMS assigned their Mr Turner to the case. He prepared a Notice of Appearance on behalf on the respondent, resisting the applicant's claims, which was lodged with the Employment Tribunal on 12th April 2000.[5]The case was listed to be heard as a floater at the Leeds Employment Tribunal on 26th June 2000. It was to follow a preliminary hearing and then a full unfair dismissal case.[6]On that morning Mr Turner attended at the tribunal offices with witnesses for the respondent. The applicant attended with her representative, Miss Craven of the Humberside Law Centre.[7]We pick up the events of that morning from the tribunal's decision and reasons. Having disposed of the preliminary hearing the tribunal were hearing the next case when a commotion was heard outside the tribunal room. There were raised voices and Miss Craven was heard to shout "Get out, get out of here."[8]When the tribunal retired the chairman, Mr Morris, enquired of the tribunal clerk as to what had been happening earlier.[9]It seems that the clerk had collected copies of the respondent's witness statements from Mr Turner and had provided one set to Miss Craven. Mr Turner was unhappy with this; there had been no order for exchange of witness statements. He went into the applicant's waiting room to demand their return. Miss Craven refused. According to the written accounts made by Miss Craven, the applicant and the clerk, Mr Shortman, Mr Turner became very angry, raising his voice and then grabbed one of the witness statements from Miss Craven, nipping her wrist. Miss Craven said that she thought he was going to hit her. It was, on any view, wholly unacceptable behaviour on the part of Mr Turner.[10]In his statement Mr Turner accepted that his actions were improper, although he contended that the account given by Miss Craven was exaggerated.[11]The tribunal had the parties in at 12 noon, and warned Mr Turner that they were considering striking out the respondent's Notice of Appearance under Rule 13(2)(e) and gave him until 3 p.m., when they would give him an opportunity, under Rule 13(3), to show cause orally why that course should not be taken.[12]At 3 p.m. Mr Turner made representations to the tribunal, but they concluded that his conduct of the proceedings on behalf of the respondent had been scandalous and a strike out order was made. The Appeal[13]Today, the respondent is represented by Miss Mountfield of Counsel. She accepts that Mr Turner's behaviour in the applicant's waiting room was completely unacceptable and amounted to scandalous conduct. She does not contend that if the tribunal had power under Rule 13(2)(e) to strike out the Notice of Appearance their exercise of discretion in doing so was legally perverse. However, she submits that the tribunal had no power under the Rule to strike out the respondent's Notice of Appearance on two grounds:(1) because the actions of Mr Turner did not take place "in the conduct of the proceedings" and/or(2) in assaulting a third party, Miss Craven in the waiting room, Mr Turner was acting on a "frolic of his own" and was not acting on behalf of the respondent or with the respondent's authority.[14]We shall consider each of those submissions in turn, taking into account the written representations made on behalf of the applicant in her Answer, she not being represented before us today on the ground of expense and the short notice of hearing.(1) Was Mr Turner conducting the proceedings when behaving as he did in the applicant's waiting room? Miss Mountfield submits that conducting the proceedings involves running the case, discussing procedural issues with the opposing party, agreeing them if possible and if not bringing matters in dispute before the tribunal, as well as appearing before the tribunal. Thus, she accept, if a party or his representative conducted correspondence with his opponent in a vituperative or vexatious manner in the run up to the hearing, or if he was abusive to the tribunal during the hearing, he would be acting in the course of the proceedings. However, she submits, assaulting and shouting at an opposing representative in that parties waiting room, without the knowledge of the client, cannot be said to be a matter which took place in the conduct of the proceedings even if waiting for the proceedings to begin. She submits that the proceedings merely provided the occasion for the act. We profoundly disagree with that submission. The matter in issue between Mr Turner and Miss Craven was the return of the respondent's witness statements which were to be used at the hearing. The proper course, as Miss Mountfield accepts, was for Mr Turner to make an application to the tribunal either for the return of the witness statement, or perhaps for an order for exchange of witness statements. Had he taken that course she accepts that he would have been engaged in conducting the proceedings on behalf of the respondent. It seems to us that the point of Rule 13(2)(e) is to give the tribunal power to deal with misconduct of the proceedings. That is what happened here. It makes no difference that the incident occurred outside the tribunal hearing room. Had it happened before the tribunal Miss Mountfield accepts that the representative would have been conducting the proceedings. We can see no grounds for making a distinction, whether the client, in the shape of Miss O'Connor, was present or not at the time when the incident occurred.(2) Was Mr Turner acting on behalf of the respondent? Miss Mountfield submits that in acting in the way that he did Mr Turner was acting on his own account and not on behalf of the respondent. It was an independent act and not an unauthorised way of doing that which the respondent authorised him to do, that is, conduct the proceedings generally in their interests on their behalf. She relies on the Court of Appeal decision ST v North Yorkshire County Council [1999] IRLR 98 . There, the Court overruled a finding by the County Court Judge that the deputy headmaster of a special school, employed by the defendant Council, was acting in the course of his employment when he indecently assaulted a pupil on a school trip to Spain. The Court of Appeal held that by sharing a bedroom with the pupil on that trip the teacher was given the opportunity to assault the pupil but that was not sufficient to found vicarious liability on the part of the employer in an action based on negligence. We cannot accept that analogy, which Miss Mountfield accepts is not a precise one. The question is not whether the respondent was vicariously liable for the acts of its representative in negligence but whether, at the relevant time, he was acting on behalf of the respondent in conducting these proceedings. Plainly, in our view, he was. The purpose of the Rule is to provide a sanction where a representative or a party behaves scandalously in his conduct of the proceedings. It is the very behaviour which is designed to be caught by the Rule, which might in certain circumstances afford a defence to an employer facing a claim in tort based on the vicarious liability principle. We accept that the respondent did not authorise Mr Turner to behave in the way that he did. However, an applicant who instructs his solicitor or trade union representative to lodge a complaint of unfair dismissal within time does not authorise him to lodge it out of time; on the contrary. It will be no answer to a limitation defence that he relied on his skilled adviser to put in the application in time. See Riley v Tesco [1980] ICR 323 . We do not accept that that principle has been altered by the Court of Appeal decision in London International College v Sen [1993] IRLR 333 . That seems to us to be a more apposite analogy than the complainant in a discrimination case, seeking on the just and equitable ground an order extending time, relying on the bad advice of his representative. See Hawkins v Ball and Barclays Bank plc [1996] IRLR 258 , to which Miss Mountfield referred us. Further, it is well established that a party cannot rely upon the incompetence of his representative in conducting a case before the Employment Tribunal when seeking to take a new point, not taken below on appeal. See Kumchyk v Derby City Council [1978] ICR 1116 ; Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 . It seems to us that those principles apply equally to a party whose representative misconducts the proceedings on its behalf. The alternative would be to remove from Rule 13(2)(e) its intended bite. It will always be open to a party to say that he has not authorised his representative to act in the unacceptable way that he did. Nor are we persuaded that the respondent gains any support from the fact that in the ordinary civil courts incompetence or misconduct by a representative, whether solicitor or counsel, may be met with a wasted costs order. No such power is vested in the Employment Tribunal. Similarly the Employment Tribunal has no direct powers to deal with contempt in the face of the tribunal. Hence Rule 13(2)(e), which should not, in our judgment, be rendered ineffective in the way proposed by Miss Mountfield in this case.[15]One final observation. A solicitor or barrister who behaved in the way in which Mr Turner behaved would be liable to disciplinary proceedings before his professional body. That acts as a restraint upon all such professional advisers.[16]No such constraints apply to self-styled employment consultants. The effect of allowing this appeal would be send a clear message that an Employment Tribunal is powerless to impose any sanction on behaviour such as this. That we shall not do; the appeal is dismissed.[17]The application by Miss Mountfield on behalf of the respondent for permission to appeal to the Court of Appeal is refused.