MR K A MAYNARD v MALTON BACON FACTORY [2002] UKEAT 0433_01_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0433_01_2003Case No Appeal No. EAT/0433/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K A MAYNARDAPPELLANTMALTON BACON FACTORYRESPONDENT
Before
His Honour Judge J McMullenDate 20 March 2002
[1]APPEARANCES For the Appellant MR DAMIAN BROWN (of Counsel) USDAW Legal Department Oakley 188 Wilmslow Road Manchester M14 6LJ HIS HONOUR JUDGE J MCMULLEN QC This case and the associated application are about Employment Tribunal procedure and Employment Appeal Tribunals. It consists of an appeal and an application by the Applicant in proceedings against the decision of an Employment Tribunal, Chairman Mr A J Simpson, sitting at Leeds on 22 February 2001, promulgated with Extended Reasons on 5 March 2001. It is conducted under Section 28(4) of the Employment Tribunals Act 1996 – ie Judge alone, there being no relevant ground of appeal or application to the contrary. The Applicant was represented by a trade Union representative, the Respondent by a solicitor. The Applicant claimed unfair dismissal and disability discrimination arising out of events which took place in July 2000.[2]The issue before the Chairman was whether the claim should be struck out because of a failure by the Applicant to comply with a direction given by a previous Chairman on 7 November 2000. The Chairman decided that the Originating Application should be struck out and the Applicant should pay £500 towards the costs of the Respondent. The Applicant appeals against that finding, seeks to amend the Notice of Appeal and to rely on the additional grounds which are set out in a skeleton argument and oral submissions today.[3]Logically the application to amend should be taken first. By the amended notice it is contended: the decision was perverse; the Chairman failed to have regard to the terms of the Directions Hearing on 7 November 2000; the sanctions therein foreshadowed were in breach of Rule 13(3) at that time - now Rule 15(3) - of the Employment Tribunal Rules ; no notice was sent to the Applicant prior to the strike out; the Chairman wrongly considered the relationship between medical evidence and the Disability Discrimination Act ; in awarding costs the Chairman considered the ability of the Applicant to sue his Union for negligence and the Chairman erred in that he had no power to strike out and award costs at the same time.[4]There appears to me to be no jurisdictional reason why the amendment should not be allowed. At the end of any Preliminary Hearing directions are usually given for any amendments to be made to the Notice of Appeal before it is served. They are made without reference to the Respondent and by definition without the benefit of a full Appeal Tribunal hearing. They can only be made by order – see Practice Direction paragraph 2(6) - as the Registrar pointed out in a letter of 25 June 2001.[5]In this case the reason for a late amendment to the Notice of Appeal is set out in a letter from USDAW to the Registrar. The Union's position is, in my view, fully understandable in the light of the Chairman's criticisms of the Union's conduct of the case in paragraph 6 of his decision. That is, that the Applicant had put his trust in the Union which may have been misplaced. In the light of that, I regard it as fully understandable that the Union did not at once amend the Notice of Appeal or seek permission to do so. The Respondent was invited to comment and indicates in its response no prejudice but it is partly correct in its criticism of some delay caused by the Union thereafter. I will however, allow the amendment.[6]I began to hear counsel on the question of costs. I propose that if the Respondent wishes to raise the question of costs in conducting correspondence at the invitation of the Registrar that matter should be put into its Respondent's notice and an itemised bill should be presented to the Full Hearing from which it will be inferred I will allow the second part of the appeal.[7]The Applicant was employed by the Respondent for one week in July 2000 having given up a job of eight years' standing. He contends that at interview he told the Respondent he had a perforated ear drum and that he was subsequently dismissed because he was a safety risk. This would therefore be a breach of the Disability Discrimination Act 1995 . As the Chairman found, his predecessor Chairman, Mr Hildebrand, had found on 7 November 2000 that the Applicant was granted leave to serve a specialist report by an ENT surgeon. That was to be done by 12 January 2001. It was not. The previous Chairman had decided that the parties did not have a discretion to agree any variation in the directions between themselves and went on to say as follows:
"Any party in default in respect of the directions should immediately contact the Tribunal so that consideration can be given to an extension of time and/or orders to secure compliance with the directions. In the event that there is default consideration may have to be given to sanctions being imposed in costs in relation to the default identified."
[8]The conduct of the Applicant's case by the Union was the subject of cross-applications. The Union sought an extension of time to serve a specialist medical report contending that, although it had initially delayed instructing a specialist, its subsequent letter had been mislaid. The Respondent said that the claim should be struck out on the grounds that there had been a failure to carry out the direction. The Chairman directed himself by reference to the relevant provision of the Employment Tribunals Rules of Procedure (1993 as they were at the time). He was citing Rule 13(2) as it then was. By his reference to Draconian powers he expressly acknowledged that he was about to exercise the harsh power traditionally associated with the law giver of Athens in the 7th Century BC. Draco's code of zero tolerance punished all crime with death; it did not survive long after his own. I do not understand Parliament to have given Draconian powers to Tribunals and if it did then care should be exercised in their use. The Chairman balanced the interests of the Parties, the possibility of prejudice and the right of the Applicant to sue his Union. The Chairman concluded that the complaint should be struck out and the Applicant should pay costs assessed at £500.[9]The decision is criticised by Mr Brown, on behalf of the Applicant, in the following respects. First, it is contended that the Chairman did not have regard to the terms of the Directions Hearing, which I have cited above, on 7 November so as to visit any default with costs sanctions, rather than with the Draconian sanction of a strike out. In my view that is a reasonably arguable point.[10]Secondly, it is contended that the striking out was in breach of what was then Rule 13(3) and is now Rule 15(3), which provides that a tribunal cannot strike out an application without itself having sent notice to the relevant party giving an opportunity to show cause why an order should not be made. It is mandatory and in any event it should proceed in accordance with Rule 4(7). That, too, is in my judgment a reasonably arguable point.[11]Thirdly, it is contended that the Tribunal Chairman ought to have found that the real prejudice in this case in striking out the Originating Application was to the Applicant, with only a possibility of an injustice to the Respondent. The Chairman considered that there may be difficulties in calling medical evidence from an in-house practitioner who had since left the company. That is a matter for the Tribunal to consider. Of course, the Chairman would have known that striking out would cause 100% prejudice to the Applicant, whereas allowing the case to go forward, for example, in the absence of medical evidence, or even with medical evidence by the Respondent alone, would cause him some prejudice but it would not be fatal to his case. In those circumstances it appears to me that a reasonably arguable point is raised as to the factors taken into account by the Chairman in exercising the discretion which he did. My attention has been drawn to National Grid Company plc v Virdee [1992] IRLR 555 followed here by Mr Justice Lindsay when a similar principle was enunciated in London Borough of Lambeth v Blandford unreported 6 June 1997 where the President said:
"…it is not for us merely to ask the question whether we would have decided the case as had the Chairman. We have to recognise that he is the master of fact. He is only to be overturned in his discretion if he errs in a point of law, but it is in that context that [counsel] refers us to two cases in particular. The first is the case of National Grid Company Plc v Virdee [1992] IRLR 555, a judgment of the Employment Appeal Tribunal under Wood J, and it would be appropriate to read paragraph 26 of that case: "
To summarise the principles as we have sought to distil them from the cases, they are that the principal object of rule 4(4), as the similar rules in the County Court and the High Court, is to obtain compliance with the orders made and that it is only in the most serious cases that punishment should be considered. In the first instance punishment is envisaged either under rule 4(3) or by striking out under rule 4. The latter is far more serious and final. It should only be utilised in those cases where any judgment ultimately obtained could not be considered to be fair between the parties." As the President put it :
"A strong test to be satisfied."
[12]In my judgment, punishment is not the purpose of the rule about striking out but to secure compliance with the direction of the Tribunal. It is reasonably arguable that the Chairman failed to apply what Mr Justice Lindsay described as a strong test and which appears to fall into the category of extreme cases.[13]Fourthly, it is contended that the Tribunal considered whether medical evidence was necessary and in so doing failed to apply Abedeh v British Telecommunications plc [2001] IRLR 23 and Vicary v British Telecommunications plc [1999] IRLR 680 both of which indicate that the question of disability is one for the Tribunal with or without medical evidence. In my view this too is a reasonably arguable contention.[14]Fifthly, it is contended that the Tribunal erred in making its decision by taking into account the fact that the Applicant could sue his Union. In my judgment it is reasonably arguable that that is not a proper factor to consider when considering a strike out. The fact that the Applicant may be able to launch proceedings against his trade union or legal adviser is not a necessary component of the assessment of prejudice or the absence of prejudice. The Applicant who had placed his trust in the Union, as the Chairman found, would then be forced to find alternative solicitors and to sue if so advised.[15]So, all of those grounds as set out in the skeleton argument of Mr Brown today are reasonably arguable and should deserve the attention of a Full Hearing.[16]The second decision made by the Chairman, that is on costs, is also criticised. It is to be noted that the Applicant's representative at the hearing indicated that she could not, in the light of the findings by the Chairman, resist an application for the costs of the hearing. The Chairman went on to say that:
"Even if she had not made that concession, there is no doubt in my mind that the conduct of the proceedings by the applicant's representatives, for which he is unfortunately liable, was unreasonable. I make an order accordingly."
As Mr Brown engagingly accepts, in paragraph 22 of his skeleton, the Tribunal could either order costs incurred by the default as per the previous order, or costs - but not strike out and costs. It seems to me therefore that the issue of costs as decided by the Chairman is inextricably linked to his primary decision and the view he took of the conduct of the Applicant's representatives.[17]I would have been minded to dismiss the appeal on this exercise of discretion by the Tribunal Chairman but given that the concession made by the Applicant's representative at the Tribunal was based upon hearing the Chairman's finding on the primary point - strike out - it seems to me that that issue should still be open to the Applicant's representative at a Full Hearing. It is because of the linkage between the two and for no other reason that I consider that it is reasonably arguable that this part of the appeal should be the subject of a Full Hearing.