MR A A LAWAL v TRICIA FOSTER AEB CHESTERFIELD LAW CENTRE [2001] UKEAT 0342_01_1009

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0342_01_1009

Case No Appeal No. EAT/0342/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A A LAWALAPPELLANT

TRICIA FOSTER AEB CHESTERFIELD LAW CENTRERESPONDENT

Before

Mr Recorder Langstaff

Date 10 September 2001

[1]APPEARANCES For the Appellant MR A A LAWAL (the Appellant in person) MR RECORDER LANGSTAFF QC This is an appeal from a decision of the Employment Tribunal sitting at Sheffield, Extended Reasons for which were promulgated on 15 February 2001. The Chairman, sitting alone, exercised the powers under Rule 7(4) of the Employment Tribunals (Constitution etc) Regulations 1993 to order the Appellant to pay a deposit of £150 as a condition of being permitted to continue to take part in the proceedings.

[2]The proceedings themselves were a complaint by the Appellant that he had been discriminated against on the grounds of race and that he had been victimised, in essence, because he had not been called for a job interview. It appeared to the Chairman that the only evidence that the Appellant had been discriminated against on the grounds of race was that he had not been called for interview. He came to the conclusion that it was unlikely that that would be a sufficient basis to persuade the Tribunal, whatever the burden of proof at the end of the day, that there had, in this case, been discrimination against the Appellant upon the grounds of race. The employer was likely, we think, to discharge the burden unless it could be shown by answers to questions or by evidence that others similarly qualified had been interviewed. It would then be for the employer to show that it was not on the basis of race that he had selected someone else or failed to select the Appellant for interview.

[3]So much for the facts of the case. The Appellant before us today challenges the exercise of the discretion on a number of bases. He says, as we understand his submission, that exercising the power under Rule 7(4) is tantamount to indicating that the case has been pre-judged. Rule 7(4) of the Rules provides as follows:

"If upon a pre-hearing review the Tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a Tribunal have no reasonable prospect of success, the Tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter."

I have quoted the Rules as they were at the time that the Chairman exercised his discretion.

[4]Mr Lawal says, that because the basis for ordering a deposit is a conclusion by a Tribunal that the party has no reasonable prospect of success, that inevitably is likely to influence a subsequent hearing, notwithstanding the provision in Rule 7(9) that:

"No member of a Tribunal which has conducted a pre-hearing review shall be a member of the Tribunal at the hearing of the Originating Application."

Mr Lawal has also pointed to the reservations that have been expressed by two former Presidents sitting in this Tribunal as to the exercise of powers which may lead to a strike out by a Chairman sitting on his own. He also has pointed out to us in a graphic phrase that the Chairman here was saying by the order made, in effect, 'let's see the colour of your money and then we will throw your case out'. He has handed to us an order which was made on 16 March and promulgated on 26 March 2001 which indeed ordered that this application be struck out. The reason for the strike out was the non-payment of the deposit of £150 which is the subject of this appeal.

[5]Mr Lawal complains that such a pre-judgment and the rules that permit it are fundamentally a breach of his Human Rights, being contrary to

Article 6 of the Convention

. Where a case is pre-judged, he suggests the fair trial of his Civil Rights obligations become impossible. He argues as well that because this order was the first step, as he sees it, in a process of strike out, the Employment Tribunal was debarred from taking such a step in consequence of the decision of the Court of Appeal in Care First Partnership Ltd v Roffey and Others . He has shown us the report of that case in 'The Times' for 22 November 2000. That was a case in which the Employment Appeal Tribunal dismissed an employer's appeal against a decision of the Ashford Employment Tribunal. The Ashford Tribunal had held that it had no jurisdiction before hearing evidence to dismiss an application on the ground that it had no reasonable prospect of success. The Court of Appeal upheld the decision of this Tribunal to dismiss the employer's appeal.

[6]We think that the Care First Partnership Ltd , however understood, is dealing with a different situation. As

Lord Justice Aldous is reported to have said:

"It was important to analyse exactly what the employers were in that case seeking to do."

They were [the report says] seeking the summary disposal of the case on the complainants' witness statements where no order had been made that the statements should stand as the evidence in the case and where there was no order barring the complainants from giving oral evidence. The stage had not been reached where a decision could be reached on the merits. We should emphasise, for our part, that this was at the very start of what had been intended to be a Full Hearing of an application before the Tribunal. That gives rise, we think, to very different considerations, on any showing, than does the exercise of the power with which we are concerned, which is specifically provided for by the 1993 Regulations and by Rule 7(4) made scheduled to those Regulations.

[7]Subject only then to the Article 6 point, we have to ask whether the Chairman was entitled to exercise the discretion in the way that he did. The exercise of his discretion was based upon his view that the case had no reasonable prospect of success. For the reasons we have given earlier in this judgment, we think that it was within the Chairman's scope of discretion to take such a view of the case. We consider therefore that it was open to him, if he chose to do so, to make an order pursuant to Rule 7(4). We cannot see that in doing so he exercised his discretion on any wrong basis. It follows that, subject only to the Article 6 point, that this appeal would have to be dismissed.

[8]We turn therefore to the Article 6 point. We regret to say that we think that this point is also unarguable. We do not consider that it could arguably be said to be a breach of Article 6 that one party to litigation be required to make a small payment, which is within his means to pay, as a condition of continuing in the litigation, where it reasonably and properly appears to the Court that those proceedings may be, and probably are, without foundation.

[9]It must be remembered that Article 6 is not an article that looks just at one party's rights in litigation but looks at both parties. It seeks to maintain fairness to both the Appellant and the Respondent in this case as it does between the Applicant and the Respondent in any case before a Tribunal. On that simple basis we do not see that any breach of Article 6 is here arguable. For those reasons this appeal fails and must be dismissed.