MR PAUL BONAVIA v (1) MINISTRY OF DEFENCE (2) MR C T J ARMSTRONG [2001] UKEAT 1084_00_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1084_00_2102Case No Appeal No. EAT/1084/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR PAUL BONAVIAAPPELLANT(1) MINISTRY OF DEFENCE (2) MR C T J ARMSTRONGRESPONDENT
Before
Mr Justice LindsayDate 21 February 2001
[1]APPEARANCES For the Appellant MR S SIMBLET (of Counsel) Southwark Law Centre Hanover Park House 14-16 Hanover Park Peckham London SE15 5HG MR JUSTICE LINDSAY (PRESIDENT) : This comes before us by way of a preliminary hearing of the appeal of Mr Bonavia in Bonavia v(1) Ministry of Defence(2) Mr C R J Armstrong . Before us today Mr Simblet has appeared for Mr Bonavia. The chronology is this: on 3rd December 1997 Mr Bonavia presented an IT1 for sex discrimination. He claimed to have been unfairly dismissed from the Army as long ago as January 1991. He claims that he was dismissed by reason of being homosexual. He gave particulars spread over some two pages of typing, although I am bound to say that it is not entirely clear whether he was there saying that he was discriminated against because he was a homosexual or by reason of the mistaken belief that he was homosexual. But certainly it appeared in his allegations that he had been abused and there was quite an explanation of the nature of his case in his IT1. No explanation of delay from January 1991 to December 1997 was given, but that we do not need to go into further, at any rate at this stage.[2]On 7th January 1998 the Treasury Solicitor on behalf of the Ministry of Defence asked for the case to be consolidated with a number of other cases and to be adjourned generally awaiting a decision of the European Court of Justice.[3]On 7th January 1998, the same, day, the Ministry of Defence set out a number of grounds of resistance to Mr Bonavia's claim and claims of others:
"1. It is admitted that the Applicant was employed by the Respondent as a Sergeant in the Royal Military Police until his discharge on 22nd January 1991. 2. It is admitted that the Applicant was administratively discharged on the ground that his retention was incompatible with Armed Forces and, therefore, Army policy."
They said in their paragraph 5:
"The Respondent avers that the Tribunal lacks jurisdiction to hear the claims for unfair dismissal for the following reasons: (1) Unfair Dismissal : The Respondent avers that the Industrial Tribunal does not have jurisdiction to hear the Applicant's complaint of unfair dismissal. In this regard, it is submitted that section 191 of the Employment Rights Act 1996, which affords to person in Crown employment the right not to be unfairly dismissed, does not apply to service as a member of the Naval, Military or Air Forces of the Crown as set out in Schedule 2 Paragraph 16 of the Employment Rights Act 1996. (2) Consequently, the Respondent submits that the Applicant does not have the right not to be unfairly dismissed. (3) Further, the Respondent avers that the Industrial Tribunal lacks jurisdiction to consider the application on the ground that it was presented outside the three month time limit prescribed by section 111(2) of the Employment Rights Act 1996; the Respondent avers that the effective date of termination was 22nd January 1991. (4) Sex Discrimination : The Respondent avers that the Industrial Tribunal lacks jurisdiction to consider the application on the ground that it was presented outside the three month time limit prescribed by section 76(1) of the Sex Discrimination Act 1975."
They took the point in their paragraph 6:
"It is denied that section 1 of the 1975 Act is applicable to discrimination on the ground of sexual orientation as distinct from discrimination on the ground of gender. It is denied that the Applicant was discriminated against on the ground of gender."
They said that even if there had been discrimination, which they denied, it was lawful because it was done for the purposes of safeguarding national security and ensuring combat effectiveness. So the wide range of issues that were likely to need to be gone into at a substantive hearing was thus emerging from the papers.[4]On 9th December 1998 there was a directions hearing. On 23rd December 1998 the decision of the tribunal at London (South) under the chairmanship of Mr D N Milton at that hearing on 9th December 1998 was sent to the parties. It begins by saying:
"The unanimous decision of the Tribunal is that: … (ii) ALL APPLICANTS WHO WISH TO DO SO HAVE LEAVE TO AMEND THEIR ORIGINATING APPLICATIONS BY 1 FEBRUARY 1999."
The actual decision, which is the first part, properly-so-called, before extended reasons, makes no reference whatsoever to the service of further or better particulars. But the body of the reasons include paragraph 11 which says:
"11. Directions . IT IS MOST IMPORTANT THAT ALL APPLICANTS WHO WISH TO DO SO SHOULD AMEND THEIR CLAIMS, EITHER IN THEIR OWN WORDS OR BY SOME FORM OF ADOPTION OF THE FORMULA ALREADY USED BY APPLICANTS WHO HAVE AMENDED THEIR CLAIM. We should point out however, that it does not necessarily follow that all Applicants were treated in the same fashion. …"
That is the only passage that seems to relate to formal changes, to use a rather neutral word, or additions to what one might call the pleadings in the case. It does not make any reference at all to further and better particulars properly-so-called. Insofar as it makes reference to amendment, it does say "all Applicants who wish to do so", so there is no absolute order that there should be amendments but that consideration should be given to the subject and if it was wished to amend, it should be done as that passage indicates.[5]The next stage in the chronology that we need to refer to is 14th July 2000, when there was a striking out order. It is headed in the matter:
"MR C R ARMSTRONG & OTHERS"
But amongst the number of ten cases being dealt with was Mr Bonavia's. It says:
"In exercise of powers conferred on me under Rule 4(7) of the Employment Tribunal Rules of Procedure 1993, I order that the Originating Applications be struck out for the Applicant's failure to comply with the Tribunal's Order for Further Particulars dated 23rd December 1998."
Under extended reasons it says:
"2. By Order dated 23rd December 1998 the Applicants were ORDERED to send to the Respondent and to the Tribunal Office further particulars, but failed to do so within the time stated. 3. On 23rd December 1998 the Applicants were warned that unless they amended their Originating Application by 1st February 1999, the Chairman would consider striking out the Originating Applications for non-compliance with the Order. 4. No reasons having been provided in answer to that Order. I order that the Originating Applications be struck out."
That was sent to the parties on 14th July 2000.[6]On 23rd August 2000 a Notice of Appeal was received from Mr Bonavia by the Employment Appeal Tribunal as to that striking out. On 31st August 2000 an application which had been made by Mr Bonavia to the Tribunal below for his case to be reviewed as to the striking out was declined. In a decision sent to the parties on 31st August 2000 the reasons given by the Chairman say:
"I record that all claimants in these proceedings were originally granted leave to amend their Originating Applications by virtue of an Order made on 11 November 1997. That Order gave the Applicants half a year in which to seek advice and take the potentially quite simple step of amending their existing claims. Since these two Applicants [ one was Mr Bonavia ] (and others) had not amended their claims by the designated date the Respondent sought to strike out their claims by reason of that failure. The whole case came before me and a full Tribunal on 9 December 1998. On that occasion the Applicants were given a last chance to amend if they wished and the Order and Reasons setting out that position was in my view expressed in very clear and strong terms."
One notices there that they were given a last chance to amend "if they wished", so again, there was no suggestion of an obligation in absolute terms.[7]In the meantime, on 23rd August 2000 there was a Notice of Appeal from Mr Bonavia, as we have mentioned, with attached grounds of appeal. It makes the very simple point that:
"The appellant was not ordered to send any further particulars to the Respondent or the Tribunal and therefore cannot be in default by not doing so."
In addition, there was an argument based on a communication with the tribunal on 5th January 2000 (which was, I think, oral) and a written communication on 7th April 2000.[8]We regard it as plain that if further and better particulars were not obligatory but merely required to be served if the "applicant wished to do so" that the striking out was arguably – and, of course, at this stage all we need to say is "arguably" – an error of law. We send the whole Notice of Appeal to a full hearing.[9]We will hear Mr Simblet further on the point, but subject to hearing him further, it seems to us appropriate that Mr Bonavia should, within a fairly short period of 14 days, swear and serve an affidavit as to whatever written or oral communications with the Employment Tribunal he wishes to rely on at the full hearing. The papers at the full hearing must include the order of 23rd December 1998, which has been added to our papers at the last minute, and it would probably be prudent also to add the papers referable to the hearing for directions on 15th April 1999.[10]The Ministry of Defence - again this is matter of time-tabling of evidence - should be given 14 days to answer whatever evidence Mr Bonavia puts in on the point which we have just described, and Mr Bonavia is then to have ten days to reply.[11]It will be convenient if the whole procedural history of the case is rather more fully explained than it has been as yet. But, as we have indicated, we do see an arguable point of law to go to a full hearing and we would mark it Category B and mark it for two hours.[12]Mr Bonavia's costs and incidental of today's hearing are to be assessed for the purposes of Community Legal Service Funding Regulations.