MR E ROBERTS v TRUSTEES OF THE CONGREGATION OF THE SISTERS OF THE SACRED HEARTS OF JESUS AND MARY [2000] UKEAT 942_99_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 942_99_2806Case No Appeal No. EAT/942/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E ROBERTSAPPELLANTTRUSTEES OF THE CONGREGATION OF THE SISTERS OF THE SACRED HEARTS OF JESUS AND MARYRESPONDENT
Before
His Honour Judge J Altman Mr A E R Manners Mr P M SmithDate 28 June 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED. HIS HONOUR JUDGE ALTMAN: This appeal comes before us by way of an appeal from the decision of the Employment Tribunal held at Liverpool on 19 July 1999 whereby the originating application was struck out and the Appellant was ordered to pay costs in the sum of £500. This took place on the day on which the Appellant's originating application was due to be heard. The Appellant had worked from 1980 to December 1998 and he was dismissed from his post as Deputy Head Teacher. In his originating application on 22 February 1999, the Appellant claimed that he had been unfairly dismissed for incapacity.[2]Following the striking out of his application on 19 July it was on 2 August 1999, when a Chairman sitting alone, refused the application for a review, which had been made on the ground that the interest of justice required such a review and, formally, it is from that decision that the appeal is made.[3]The Appellant has not appeared today on this hearing, which is a preliminary hearing to deal with the issue as to whether the appeal raises an arguable point of law, which can be considered in full by the Employment Appeal Tribunal. On an earlier occasion when this matter was listed before the Employment Appeal Tribunal, the Appellant did not attend due to illness. Today he has notified the Employment Appeal Tribunal by fax, that he is unable to attend and has asked us to proceed on the material before us, and which, of course we do.[4]The background to the case is that before the original hearing before the Employment Appeal Tribunal, the Appellant had made applications for witness orders, which had been refused on the ground that he had not made clear the relevant evidence which was proposed to adduced as relevant to the issues in the case. On the morning of the hearing, the Appellant applied for a postponement, so as to call witnesses, so that the merits of that application could be assessed. The learned Chairman asked to have a look at the witness statements and documents, so as to evaluate the application, witness statements not having been provided earlier. In paragraph 8 of the decision, the learned Chairman describes the response of the Appellant as follows: 8. "Mr Roberts declined that request, and indicated that he would not submit to the jurisdiction of the Tribunal. In paragraph 9 the Chairman then went on to say that this process was gone through twice and at that the end of that exchange the view was taken that: 9. "Mr Roberts' conduct in failing to submit to the jurisdiction of the Tribunal is scandalous and vexatious. In these circumstances, on the application of the respondent, we struck out the originating application pursuant to Rule 13 (2) (e) of the Industrial Rules of Procedure 1993." An order for costs was also made.[5]At the earlier listing of this case for a preliminary hearing, the Chairman was asked to deal with the issue as to whether the Appellant had been warned that his claim was to be struck out. On 15 February 2000, the Chairman wrote to the Tribunal in the following terms:
"I warned Mr Roberts on three occasions that if he persisted in his stance we would consider striking out his claim."
The Appellant has furnished grounds of appeal of some substance in relation to the refusal of the review raising once again the earlier arguments as to the dismissal and the need that he had to call various witnesses. His complaint was put in the notice of appeal in the following terms:
"I do not believe that the law has been served in this case and would submit that although the law has been invoked in relation to the decision taken; it was a decision which was made without reference to the facts of the case to be presented and therefore unsound."
[6]It is clear that the facts to which he refers are those relating to his claim for unfair dismissal. However, the facts upon which the Employment Tribunal relied in striking out the claim originally, and subsequently in refusing the review, were not the facts of the complaint for unfair dismissal, but the facts of the way in which the Appellant had conducted himself before the Employment Tribunal. On the decision for review, the Chairman said as follows:
"The (Appellant's) complaint was struck out because he refused to submit to the jurisdiction of the Tribunal, and notwithstanding the Tribunal fully explained, more than once, that it wished to see his statements and documents before it considered his application for an adjournment."
Regulation 13 (2) (e) provides that:
"Subject to paragraph 3 at any stage of the proceedings (a Tribunal may) order to be struck out any originating application…on the grounds that the manner in which the proceedings have been conducted by…the applicant….has been scandalous, frivolous or vexatious."
[7]The conduct of proceedings before Employment Tribunals is within the discretion of the Chairman and when a reasonable request is made of an applicant by a chairman as a condition precedent to proceedings and the chairman is simply refused what is he to do? Are the Tribunal to say 'Alright, we will not be responsible for determining how the matter should proceed. You the Applicant can decide instead of us.' Or is the Tribunal to say 'If you will not co-operate with enabling us to conduct these proceedings in the way we consider fit, then we cannot proceed and the matter must be struck out.' The decision as to whether or not to strike out on the grounds put forward was quite clearly, it seems to us, within the discretion of the Tribunal on the first occasion and we have seen nothing to support the proposition that in exercising their discretion the Tribunal acted unlawfully.[8]When it came to the review, the position was unchanged. The same facts, as to the way in which the Appellant had conducted himself at the hearing, were reiterated and the determination that the Appellant had conducted himself scandalously and vexatiously therefore withstood the application for review and must withstand any challenge that the Tribunal erred in the exercise of its discretion in this case. We can see no error of law whatsoever, on the face of the decisions that we have seen, and accordingly this appeal falls to be dismissed at this preliminary stage.