MS Z M FINCHAM v H M PRISON SERVICE [2001] UKEAT 0925_01_0312

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0925_01_0312

Case No Appeal No. EAT/0925/01 EAT/0991/01 EAT/1256/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS Z M FINCHAMAPPELLANT

H M PRISON SERVICERESPONDENT

Before

His Honour Judge D M Levy

Date 3 December 2001

[1]APPEARANCES For the Appellant MR S CRAMSIE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE D M LEVY QC This is the Ex Parte hearing of the appeal of Ms Z M Fincham against various Orders made by Employment Tribunals sitting in Ashford, Kent. Five grounds of appeal are put forward by Mr Cramsie, who appears on behalf of the Appellant under the ELAAS scheme.

[2]The first ground arises from a decision made by a Chairman sitting alone to strike out part of the claim of the Appellant. It was made in these circumstances. Ms Fincham put in her Originating Applicant on 18 December 2000. A notice of appearance was entered on 5 January 2001. On 19 February 2001, following a request from the Respondent, the Appellant was ordered by a Chairman to give particulars. The Appellant purported to furnish the particulars sought in a document received by the Tribunal well prior to 26 March 2001. On 26 March 2001 the Respondent wrote to the Employment Tribunal stating:

"I would therefore respectfully ask the Tribunal to regard this letter as an application for a Pre-Hearing Review of this case at which consideration could be given to two issues namely whether the Tribunal should exercise its power to strike-out under Rule 13(2)(f) and, in the alternative, whether the Tribunal is able to say that the matter which has to be determined has no reasonable prospect of success such that an Order should be made against the Applicant requiring her to pay a deposit in order to continue these proceedings."

On receipt of that letter the Tribunal wrote to the parties saying that a Chairman was considering:

"… whether to strike out the Originating Application under power conferred by Rule 4(7) of the Employment Tribunals Rules of Procedure 1993 for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing within 7 days of the date of this letter."

That was dated 11 June. On 14 June the Appellant, by an untrained legal representative assisting her in the Citizens Advice Bureau, did reply to that letter. Having considered that response, a Chairman sitting alone, held that in his view:

"… the Applicant does not put forward any or any sufficient reasons why the complaints under the Race Relations Act 1976 should not be struck out for failure to comply with the Tribunal's order. I have therefore decided to order that the Applicant's complaints under the Race Relations Act 1976 be struck out."

[3]Mr Cramsie, having analysed how the matter was put to the Tribunal in the representative's letter and the way that has been dealt with in the striking out orders, has submitted that in the interests of justice that order should not have been made. He accepts that the way this is set out in the Notice of Appeal could be clarified. We think that the point which he has made is arguable. We will therefore allow this appeal to go forward on that ground.

[4]The grounds of appeal also contained an appeal against the decision by the Chairman on the Appellant's application for review to give no assistance to the Appellant. In the light of the first ground of appeal being permitted to of to a Full Hearing that is not pursued.

[5]A further ground of appeal which the Appellant wishes to raise is one which arises from what happened before the hearing of the Employment Tribunal on 18 July commenced. The same representative from the Citizens Advice Bureau suggested to a representative of the Appellant that he could advance a claim under Section 47B of the Employment Rights Act 1996 but not under Section 103A of that Act and suggested that the claim to be followed was that under the second. Mr Cramsie submitted that that was not a proper alternative to be put before the Appellant, because a representative should have been advised they should be argued in the alternative.

[6]We accept that that point may properly go to appeal but it is not taken up in the Notice of Appeal. Therefore, there are certain loops through which the Appellant will have to pass in order to allow this to be put forward. First, Ms Fincham will have to make an affidavit to set out what Mr Cramsie has said on her instructions, namely this is what happened at the Tribunal. Secondly, the Chairman will have to be asked to comment on that. Thirdly, before the point can be raised on appeal, it appears to be a point raised out of time and it will be open to the Respondents to object at the hearing of the appeal, if so advised, that this is a point which cannot properly be taken. Subject to the rights of the Respondent on that ground, and subject to the information coming to the Tribunal, we think this is an arguable ground of appeal. The affidavit by the Appellant should be sworn in 14 days so that the Chairman's comments can be received.

[7]The fourth ground on which Mr Cramsie submits that an arguable case should go forward to appeal arises from the findings made by the Tribunal in paragraph 4 of the Extended Reasons. Paragraph 4 reads:

"We do find however that on the Applicant's evidence as heard this morning, none of the disclosures made tended to show any of the matters set out in section 43B of the Employment Rights Act 1996. We have looked very carefully at the Applicant's statement and we have looked at our notes of her oral evidence given today. At page 7 of her letter of 12 June to Mrs Field, she states "

I feel under constant pressure and stress awaiting the next incident". That is not a statement which tends to show that her health or safety has been, is being or is likely to be endangered." Mr Cramsie submits that the holding of law which is stated to follow from the statement is arguably wrong. We respectfully agree. Paragraph 4 concluded:

"At no time did the Applicant say anything to a manager which would tend to show that there had been a breach by the Respondent of the Race Relations Act."

[8]Here, Mr Cramsie, on instructions, says that he understands that there was some evidence insofar as the Appellant had mentioned to a Mr Searle in April 2000 matters which could amount to such a breach. That is something which, if the Chairman's notes of evidence were produced, would be discussed. He says en passant , that that sentence alone might be an incorrect holding of the law. Insofar as the Appellant wishes to rely on that in the Notice of Appeal, we will allow that to go forward also.

[9]The final ground of appeal which Mr Cramsie seeks to put forward is found from the findings in paragraph 5 of the Extended Reasons:

"Finally, we considered whether the Applicant's disclosures or any of them tended to show a failure by the Respondent to comply with any of its legal obligations. We find that they did not."

Arguably, Mr Cramsie says, on the facts as found, the decision is wrong. That is a matter, he says, on which there is no authority and it could usefully be argued on appeal. It is perhaps not his strongest point but in the context of this case we think it is one which should go forward to a Full Hearing. Estimated time of the hearing ½ day plus. Category C.