MR S KHAN v ALCATEL SUBMARINE NETWORKS LTD [2001] UKEAT 454_00_0810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 454_00_0810

Case No Appeal No. EAT/454/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S KHANAPPELLANT

ALCATEL SUBMARINE NETWORKS LTDRESPONDENT

Before

Her Honour Judge A Wakefield Mrs J M Matthias Mr N D Willis

Date 8 October 2001

[1]APPEARANCES For the Appellant MR M SAHU (of Counsel) Instructed by: Messrs J R Jones Solicitors 56A The Mall Ealing London W5 3TA For the Respondents MR ROSE (of Counsel) Instructed by: Messrs Blake Lapthorn Solicitors 1 Barnes Wallis Road Segensworth Fareham Hampshire PO15 5UA JUDGE A WAKEFIELD This is an appeal by Mr Saifullah Khan against the Decision dated 9 February 2000 of an Employment Tribunal sitting at Ashford, by which his application for a review was refused. In order to understand and put into context the grounds of the present appeal, it is necessary to set out briefly the chronological history of the Appellant's claims.

[2]By an Originating Application, presented on 27 April 1999, the Appellant claimed to have been unfairly dismissed by the Respondent and to have been discriminated against by them on grounds of his race. He had been employed as an assembly technician for just over one year, up to his dismissal on 12 February 1999. In a Notice of Appearance, later amended, the Respondents denied race discrimination and claimed that the dismissal was by reason of redundancy and was fair.

[3]The hearing of the application was listed for two days, commencing 28 September 1999. At the commencement of the second day of the hearing the Appellant's representative applied for an adjournment in order that the Appellant, who had already given the greater part of his evidence, could be assisted by an interpreter. The Employment Tribunal somewhat reluctantly acceded to this request and adjourned the hearing, part heard, to 10 January 2000, with a time estimate of a further four days. By paragraph 4 of their Order on that occasion, the Employment Tribunal required:

"That the applicant do pay the respondents the sum of £500 costs in respect of the respondent's wasted costs of today to be paid on or before 10 December 1999, and in the event of non-payment the Originating Application in this case will be dismissed."

The reason for this part of the Order appears in paragraph 5 of the written Reasons of the same date as follows:

"The applicant has been represented throughout these proceedings and in the circumstances the Tribunal feel it appropriate to make an order for costs under Rule 12 of the Employment Tribunals Rules of Procedure, as in the opinion of the Tribunal the applicant has conducted the proceedings unreasonably, and an order in the sum of £500 is to be paid by the applicant to the respondent on or before 10 December, in respect of the respondent's wasted costs. Such costs are to be paid on or before 10 December 1999, otherwise the Originating Application is to be dismissed."

The Appellant did not appeal that Order, nor did he apply to the Employment Tribunal for any extension of time for the payment of costs to be made. However, by a letter dated 9 December 1999, and sent to the Respondents' solicitors, the Appellant's new representative wrote as follows, and this is part only of the letter:

"As you may be aware, our client has been ordered by the Tribunal to pay £500 in costs to your client by 10 December 1999 if he wishes to pursue his action. We are instructed that our client, who has four dependants and is still unemployed following his dismissal, is experiencing great difficulty in raising this sum by the said date. We write to request that our client be permitted a further 14 days to comply with this interim costs order."

Clearly the Respondents' solicitors would have had no power to extend the time which had been specified in the Order of the Employment Tribunal.

[4]On 30 December 1999, no payment in respect of costs having been made, and an application having been made by the Respondents' solicitors for the Originating Application to be dismissed, the Employment Tribunal made an Order to that effect, also vacating the forthcoming and continuing trial dates. Having been made aware of the dismissal of the Originating Application, the Appellant's representatives applied to the Employment Tribunal for a review of what was called in the request "the decision" of 30 December 1999 to dismiss the Appellant's Originating Application. The grounds of the application were as follows: firstly that: " the interests of justice require such a review, in that the Tribunal made the said decision:(a) without informing the Applicant that the Respondent had on 13 December 1999 applied to the Tribunal for an Order dismissing the Originating Application and;

(b) without allowing the Applicant an opportunity to make representations on this matter." and secondly that new evidence has become available since the conclusion of the hearing on 29 September 1999 at which the original Costs Order was made which could not reasonably have been known of or foreseen at that time. The Employment Tribunal then made the Decision which is the subject of this appeal.

[5]The review was refused on the following grounds:

"I am not satisfied that new evidence has become available since the conclusion of the hearing to which the decision relates, the existence of which could not have been reasonably known of or foreseen at the time of the hearing. Nor do I consider that the interests of justice require such a review in all the circumstances of the case."

At a preliminary hearing of this appeal at this Appeal Tribunal the matter was permitted to proceed to a full hearing on three bases. As we understand those bases, and in the context of the judgment of the Employment Appeal Tribunal on that occasion, they are as follows: firstly, that the decision made on 29 September 1999 that the Applicant pay £500 costs was, or may have been, made without any enquiry as to his means and that it was arguable that such an enquiry should have been made. Secondly, that the Order dismissing the Originating Application was made without the Appellant being told of the Respondents' application to dismiss and therefore, by implication, without the Appellant being given any opportunity to make representations. Thirdly, that there may have been new evidence since 29 September as to the means of the Appellant which might have justified a review. Although the Notice of Appeal and the Skeleton Argument of the Appellant venture into many other and wider areas than these three, we have kept our deliberations and our decision within the compass of the permitted grounds.

[6]Dealing then with the first ground of appeal. It is clear from notes provided by the Employment Tribunal since the preliminary hearing at the Employment Appeal Tribunal, that the original Order of 29 September 1999 was made in the knowledge of the Appellant's very limited means. The Chairman's Notes read on this point:

"1. No representations as to means were made on behalf of the Appellant save that the Tribunal was informed that the Appellant was still out of work. 2. The Respondent indicated it was prepared to limit its costs to £500.00, the costs thrown away being greater than that sum. 3. The Tribunal understood the Appellant to be impecunious at the time but felt that either he or his representative were at fault in not making the application for an interpreter at the end of the first day's hearing (at the very latest). In the circumstances the Tribunal felt it was just to make the costs order."

Given that the Order of 29 September 1999 was never appealed and is certainly not within the scope of this appeal today, the only possible relevance of there being no specific enquiry as to the Appellant's means is whether, in making the Decision on the Review, the interests of justice required the Employment Tribunal not to implement, or to delay implementing, the full force of the 29 September Order, given that there was now the additional fact that the Appellant had not paid the money and was, in the words of the Request for Review "experiencing great difficulty in raising the required £500 himself" We are quite unable to say that the Employment Tribunal misdirected itself or made a perverse decision in refusing, on that ground, to review its Order to dismiss the application. The Employment Tribunal, on 29 September, was fully aware that the Applicant was unemployed and impecunious. He had not appealed the Order then made, nor had he asked the Employment Tribunal for further time to pay the £500. The circumstances detailed in the Request for Review added nothing new or relevant. The appeal therefore fails on that first ground.

[7]As to the second ground of appeal, we also find this to be of no merit.

(d) as follows:

"A tribunal may …. (d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious; (e) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, the respondent has been scandalous, frivolous or vexatious;"

Then in sub-paragraph 3:

"Before making an order under sub-paragraph (d), (e) or f) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

This requirement, in our view, was one to give the party affected (that is, the Appellant) an opportunity to show cause at the time of making the original Order on 29 September, not at the time of the implementation of that Order by the actual dismissal of the Originating Application when the condition had not been met. There was no requirement, in our view, to go back to the Appellant and give him a further opportunity at that time to be heard. The appeal therefore also fails on that second ground.

[8]Finally, on the point of new evidence, the alleged new evidence is that which is referred to in sub-paragraphs 1(vi) - (x) of the Request for Review, and these read as follows:

"(vi) At the start of proceedings on 29 September, the Applicant's adviser brought the matter to the attention of the Tribunal. The Tribunal agreed to adjourn proceedings, but made a £500 interim costs Order against the Applicant. Payment was to be made to the Respondents by 10 December. (vii) On 29 September, after the costs Order was made, the Applicant's adviser stated to the Applicant that - as the costs had arisen in consequence of his (i.e. the adviser's) delay in bringing the matter to the attention of the Tribunal, the TGWU would pay the £500 so that the action may proceed. (vii) On 29 November 1999 the TGWU notified the Applicant that it would not, in the event, pay the £500. (ix) The Applicant approached Barking Race Equality Council who made representations to the TGWU on the Applicant's behalf. These were unsuccessful. (x) The Applicant has a wife and three children. Since his dismissal he has relied on Job Seeker's Allowance and Child Benefit for income. Accordingly, he experienced great difficulty in raising the required £500 himself."

[9]All the matters in those sub-paragraphs (vi) to (ix), are concerned with dealings between the TGWU and the Appellant and cannot, in any sense, be said to be new evidence as to the Appellant's means which could make a review of the Order necessary in the interests of justice. Neither does the content of sub-paragraph (x) amount to new evidence. It refers simply to the difficulty in raising the money, together with matters which were known to the Appellant and could have been adduced in evidence at the time of the original hearing in September 1999. We are therefore quite unable to find any merit in the argument on this third ground, and the appeal fails also on that basis. The appeal, overall, is therefore dismissed.