MR B KANAGARATNAM v HARMAN INTERNATIONAL INDUSTRIES LTD [2001] UKEAT 0498_01_0510

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0498_01_0510

Case No Appeal No. EAT/0498/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B KANAGARATNAMAPPELLANT

HARMAN INTERNATIONAL INDUSTRIES LTDRESPONDENT

Before

His Honour Judge J R Reid

Lord Davies of Coity

Date 5 October 2001

[1]APPEARANCES For the Appellant MR KANAGARATNAM (the Appellant in person) assisted by Mr Epstein (of Counsel) appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE J R REID QC This is an appeal by Mr Kanagaratnam from a decision of the Employment Tribunal (Mr M T Garnon, sitting alone, as Chairman) by which under Rule 4(7) of the Employment Tribunal Rules of Procedure 1993 he ordered that the whole of Mr Kanagaratnam's Originating Application be struck out. Mr Kanagaratnam's Originating Application was against his then employers, Harman International Industries Ltd, and made allegations of racial discrimination.

[2]The history of the matter can be seen from the decision of the Chairman. The dates are as follows. On 28 September 2000 Mr Kanagaratnam made his application. On 29 September2000 a Chairman reviewed the file and looking at the then very unparticularised application asked that a letter be sent to Mr Kanagaratnam asking whether in fact what he was alleging was discrimination, harassment or victimisation on grounds of sex, race or disability. The letter to that effect was sent to him on 2 October. Mr Kanagaratnam's union told the Tribunal that it was not acting for him. Following that there was a further document of 31 pages filed by the Applicant which was in effect an answer to the Respondent's Notice of Appearance. Once that had been received the file was again reconsidered by a Chairman who directed there should be an Interlocutory Hearing which took place before another Chairman, Mr Pearl, on 5 December. Mr Pearl made a detailed Order as a result of that and the terms of that order were embodied in a letter dated 14 December sent by the Tribunal to the parties. By paragraph 4 of the letter, it provides as follows:

"It was directed by consent the Applicant shall by 8 January 2001 serve on the Respondent and on the Tribunal the following further and better particulars. 1 Particulars of all acts or omissions which he contends amount to acts of direct racial discrimination within Section 1(1)(a) of the Race Relations Act 1976 , setting out in the case of each separate incident relied upon – (a) the date of the incident (b) all matters and facts relied upon for the contention that the Applicant was treated less favourably than others of a different race (c) the identity of any comparator relied upon (d) any other matters relied upon in support of the allegation of racial discrimination 2 In respect of any allegation of continuing racial discrimination, the date of the first relevant act and whether the discrimination continued up to the present date of the originating application. 3 In respect of any allegation of victimisation under Section 2 of the Act, particulars of – (a) each protected act alleged and the date thereof (b) the less favourable treatment alleged (c) all other matters relied upon in support of the allegations that the Respondent had contravened Section 2 of the Act 4 Of the allegations relating to unauthorised deductions from wages, the amounts and dates of all deductions alleged."

That last part of the claim, as I understand it, is no longer persisted in.

[3]Following receipt of that letter Mr Kanagaratnam took legal advice. On the 5 January solicitors instructed by him sent a document to the Tribunal which was not the provision of the further and better particulars as ordered, but was a Section 65 questionnaire, running to about 11 pages of typescript. The document was studied by the Chairman, Mr Garnon, who made the Striking Out Order, and he says (and says rightly, because we too have studied the document) that that document could not be said to be a document which in substance gave the further and better particulars requested, and that it could not be said that any objection to it was merely a matter of form rather than of substance.

[4]The file was then reviewed on 11 January. On 26 January the Tribunal wrote to both parties to the effect that the document did not comply with Mr Pearl's order and requiring Mr Kanagaratnam to serve the further and better particulars forthwith. On 31 January 2 documents crossed. Mr Ryan, the Chairman, ordered that a letter be sent to the Applicant as required by Rule 4(7) constituting a notice to a party who has not complied with a requirement to give him an opportunity to show cause to the Tribunal why his Originating Application should not be struck out. Mr Kanagaratnam provided a further 13½ pages of manuscript which we have commencing at page 24 of our bundle which purported to comply with the order to file further and better particulars. On 2 February the matter was put before Mr Garnon who reviewed the history of the file. He directed a letter to be sent to the parties saying that all matters including the possibility of the claim being struck out would be dealt with on the next Preliminary Hearing which had already been fixed for 6 February. There was then certain further correspondence but the hearing took place on the 6 February and on that day the Chairman determined that the application should be struck out. He did so pursuant to Rule 4(7) rather than Rule 13(2) of the Rules. Rule 4(7) provides: "If a requirement under paragraph (1) or (3) [that is amongst other things a requirement for further and better particulars] is not complied with, a tribunal, before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, of the notice of appearance, and, where appropriate, direct that a respondent shall be debarred from defending altogether: but a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirements giving him an opportunity to show cause why the tribunal should not do so." (I should say that the other power under 13(2) which was not used was the power to strike out an originating application or other document on the basis that it is scandalous frivolous or vexatious, to use well known words culled from the old Rules of the Supreme Court).

[5]The way in which the Tribunal approached Mr Kanagaratnam's attempt to comply with the further and better particulars was by looking at it, by accepting that the provision for striking out was a Draconian remedy, and by bearing in mind that Mr Kanagaratnam was plainly not a trained lawyer. The Tribunal, through the Chairman, expressed itself as leaning in the Applicant's favour to the extent necessary to compensate him for his disadvantage of legal knowledge in comparison to the trained human resources officer representing the employer. The Chairman said that it was his function to identify the case which Mr Kanagaratnam wished to pursue and examine its contents with an open mind. He cites an example:

"….had I seen anywhere in the documents that he had provided a claim of indirect race discrimination or one which could be formulated as such then my decision may well have been different."

[6]The determining parts of the decision letter were in these terms:

"23 The power to Strike Out is a Draconian power exercisable infrequently. However in this case where the employment is continuing the Applicant is protected from any victimisation by reason of him having done a protected act, the questionnaire which has been served can perfectly properly be used in evidence in any subsequent proceedings based upon any subsequent act by the Respondents which may constitute direct or indirect race discrimination or discrimination by way of victimisation. I am not therefore in this case, as I would be in some, preventing the Applicant from bringing a fresh Originating Application if, but only if an act of Racial Discrimination now occurs. However, to require a Respondent to answer a case which no reasonable person could be expected to understand would, even before coming into force of the Human Rights Act, have been quite unjust." (I pause to say that I understand that Mr Kanagaratnam has now been dismissed by the Respondents and that there are new and separate proceedings, either already launched or about to be launched, in which Mr Kanagaratnam will make allegations of racial discrimination of one sort or another. He will therefore not by any striking out be deprived of his day in Court). Reverting to paragraph 24 of the decision, the Chairman said: "24 By Striking Out this case I a not penalising the applicant for being late with the provision of anything. Neither am I penalising him for not being able to plead his case succinctly or with skill. My decision to Strike Out is based on the fact that the most detailed reading of the many pages of document which he had filed at the Tribunal and more importantly listening to him today leaves me with absolutely no idea of the basis upon which he intends to say that he has been treated less favourably on racial grounds than a suitable comparator. The whole purpose of Mr Pearl's directions was to illicit from the Applicant for the benefit not only of the Tribunal but also of the Respondent who has to answer the Applicant's case those points upon which the case could possibly be argued. For the purpose of my decision today, I accepted as true everything that the Applicant had pleaded. Even then I was left in no doubt that he had not complied with the order to provide better particulars sufficient to enable the Respondent to identify the nature, in broad terms, of the Applicant's case to the extent necessary for them to be able to answer it. On that basis I decided that there was no alternative but to Strike Out the entire Originating Application."

[7]Grounds of appeal have been advanced today, (and lengthy grounds were also advanced in writing) but the only substantive grounds were that the Chairman had erred in law because the power to strike out when there had been purported compliance in good faith and an argument had been delivered in good faith was not a power which existed and jurisdictionally the Tribunal could not strike out in those circumstances. The argument appears to stem from decisions under the old Supreme Court rules where Unless Orders had been made and where it was suggested that an action had automatically come to an end, for example, by a strike out, because inadequate particulars had been delivered in good faith in answer to an order for further and better particulars.

[8]The position in this case, in our judgment, is different. What happened here was quite simply that an order was made which required distinct and identifiable particulars to be given so that the Respondents could answer the case which was being sought to be made against them. The rule in our judgment is clear, that a power is given under which when orders for particulars are not complied with, the Tribunal can strike out. The test in such circumstances is an objective test. The Tribunal is not deprived of the power to strike out merely because subjectively the person answering the request thinks he has given the particulars or because he thinks he has done the best he can. Of course in determining whether or not it is appropriate as a matter of discretion to strike out, rather than giving an Applicant further leeway to try and make good the deficiencies in his particulars, the Tribunal will, as did the Chairman in this case, have regard to the difficulties which a particular Applicant may have in formulating his case and the difficulties that he may be labouring under by, for example, not having legal advice, or because he has difficulties with language or whatever. It is clear in this case that the Tribunal did take every step to see whether Mr Kanagaratnam could do something to remedy the deficiencies and thereby, albeit well out of time, comply with the order.

[9]I have already read the passages in the Chairman's decision. It is clear that he looked at all the material before him. He listened to what Mr Kanagaratnam had to say to him on the day to see whether there was any possibility of avoiding a strike out. He took the view at the end of the day that he could not. In those circumstances he ordered the strike out. In our judgment it cannot be said that in doing so he in any way erred in law. He gave a full and sympathetic hearing. He took into account all matters which it was appropriate for him to take into account. He reached a decision which he regarded as an appropriate decision and which we could not upset as being an improper use of his discretion or as being in some way outwith his jurisdiction. In our judgment the decision which he arrived at was an admirably reasoned decision. It was a decision sympathetic to Mr Kanagaratnam so far as it was possible but at the end of the day the Chairman, in our judgment rightly, took the view that the application being made by Mr Kanagaratnam could go no further because of the failure to supply particulars.

[10]In those circumstances the appeal must be dismissed at this stage without going to a Full Hearing. I should repeat, as I said earlier, that by reason of Mr Kanagaratnam's dismissal, at some later stage, Mr Kanagaratnam will in other proceedings be able to ventilate, if he can formulate them, at least some of the grievances as to his treatment by this company which he feels that he has, but so far as this application is concerned the appeal is dismissed.