MR J BAKER v STRATFORD LABOUR HIRE LTD [2002] UKEAT 0943_01_1007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0943_01_1007Case No Appeal No. EAT/0943/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J BAKERAPPELLANTSTRATFORD LABOUR HIRE LTDRESPONDENT
Before
His Honour Judge J R ReidDate 10 July 2002
[1]APPEARANCES For the Appellant MR CHRISTOPHER MITROPOULOS (of Counsel) Instructed by: Messrs Kang & Co Solicitors 13a Station Parade Barking Essex IG1 18BD For the Respondent MR DAVID ISAAC (Representative) Instructed by: Stratford Labour Hire Ltd 53-55 The Broadway Stratford London E15 4BN JUDGE J R REID QC We have before us two matters; the first is the question of whether the Appellant, Mr Baker, should be allowed to proceed with his appeal on the basis of Summary Reasons given by an Employment Tribunal held at Stratford, following a hearing on 4 April 2001. The second is whether, if he is allowed to proceed to appeal on the basis of the Summary Reasons only, without obtaining the Extended Reasons, the appeal should succeed or should fail.[2]So far as the first of the two points are concerned, the background is this; that the Tribunal gave Summary Reasons when it determined that the Originating Application which he had brought against his former employers should be struck-out pursuant to Rule 13(2) (e) of the Employment Tribunal Rule of Procedure 1993 in so far as it sought a remedy for his unfair dismissal.[3]The requirement of the Employment Appeal Tribunal Rules is that an appeal should be conducted on the basis of Extended Reasons. However Rule 39(2) of the Employment Tribunal Rule of Procedure 1993 permits an the Tribunal to dispense with the taking of any step required or authorised by the Rules or to direct that steps be taken in some manner other than that prescribed by the Rules and it can do so that if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice.[4]The position in this particular case is that there was an error by the solicitors representing Mr Baker, as a result of which they did not apply for Extended Reasons within time. When they did apply out of time the Chairman pointed out that the application was over 5 weeks late and that he was not prepared to extend time. But he went on by indicating that, in fact, the Summary Reasons in the particular case were very detailed and close to being Extended Reasons.[5]The effect of refusing to proceed on the basis of the Summary Reasons, in this instance, would be that Mr Baker would be deprived of his right of appeal. The Notice of Appeal itself was lodged in time. The error was that of his solicitors and, in our view, what we ought to do is look and see whether the absence of the Extended Reasons makes it impractical to conduct a fair hearing of the appeal.[6]Having considered the matter and bearing in mind that this is a case in which it is not necessary to have any voluminous findings of fact, (the decision which is appealed against is not, for example, dependent on a comparison of a variety of witnesses evidence or a minute examination of documentation). We take the view that it is perfectly possible, on the basis of those summary but full reasons, to see all the material which led the Tribunal to make its decision and to appreciate fully the reasoning of the Tribunal. In those circumstances it seems to us desirable in the interest of justice to allow the appeal to proceed and we direct that the appeal be allowed to proceed on the basis of the Summary Reasons only.[7]That disposes of the first point and brings us on to the substantive matter which is before us today. The history of the case is that the Appellant was employed by the Respondent. He was not paid the full amount, as the Tribunal found, that he should have been. Over a period of time he was paid 50p less an hour than he should have been and the Tribunal found that that amounted to a fundamental breach of the terms of his contract which entitled him to resign. The Tribunal therefore held that the Respondents had unfairly dismissed the Appellant.[8]They did that at a hearing on 15 December. They did not at that stage proceed immediately to a remedies hearing. The reason that they did not do so was because the Respondent was unprepared for a remedies hearing because of one particular element in the financial claim that Mr Baker was making; a claim to the effect that, once his two-years contract with the Respondents was up, he would have remained with them for a further year and that he suffered additional loss as a result of the loss of his employment, or the prospect of loss of that employment, over the third year.[9]The result of the Respondent not being prepared to go ahead with a remedies hearing at that stage was that the Tribunal adjourned the remedies hearing and made directions so that the remedies hearing could be properly conducted.[10]They adjourned the remedies hearing to 28 February 2001 with a time estimate of half a day and gave the following directions:(1) Mr Baker should serve a schedule of claim together with evidence of his new employment on the Respondent by 5 January 2001.(2) The Respondents should serve a counter-schedule of what sums they accept to be due to Mr Baker by 19 January 2001.(3) Witness statements relating to quantum of loss be exchanged by the parties by 2 February 2001.[11]Regrettably, the various steps that should have been taken were not taken and when the matter came before the Tribunal again on 28 February it appears that the only document that had been served was the Respondents' counter-schedule.[12]On 28 February the Tribunal unanimously decided that the remedies hearing should be adjourned to be heard on 4 April, estimated time half a day. It gave Summary Reasons and I think it is desirable that I should read those Summary Reasons in full (they are fairly short): 1 "The Applicant attended and was represented by Counsel on the remedies hearing, following the decision this Tribunal made on 15 December 2000. The Respondents were represented by Mr Isaac[he, I should say, is a Director of the Respondent Company] and had a further witness present. Unfortunately the Applicant had not complied properly or in time with the directions given in paragraph 6 of the previous Decision and in particular no witness statement had been provided to the Respondents of the evidence that the Applicant wished to give. In these circumstances Mr Isaac asked that the case proceed on the basis that we did not hear the Applicant, whereas Mr Mitropoulos, who appeared for the Applicant, asked that we proceed and heard the Applicant's evidence in oral form or in the alternative adjourned the hearing to a later date. Documents were provided by the Applicant which the Respondents had not seen before and there were incomplete papers for the Tribunal members. In short the situation was not satisfactory and, although whatever the decision this Tribunal made it could be perceived as unfair to one party or the other, the least unfairness to the parties the Tribunal considered was to adjourn the case to be heard on another date when directions hopefully had been complied with. The directions given today are that: 1) The Applicant should serve an amended schedule of loss within seven days [as I understand it the schedule of loss introduced at the hearing]; 2) The Applicant should serve a witness statement within seven days; 3) The Applicant should supply copies of any relevant documents within fourteen days; 4) the Applicant is put on notice that if he fails to comply with any of these directions he risks having his claim struck out; 5) The remedies hearing shall now take place on 4 April 2001 at 10am (estimated time half a day).[13]Following on from that, on 7 March the date arrived for the service of the amended schedule and witness statement and, we are told, that Mr Baker sent to the Respondent and the Employment Tribunal witness statements and enclosures.[14]On 8 March, apparently not having received the documentation, the Respondent wrote to the Employment Tribunal applying for the matter to be struck out. On 13 March Mr Baker, or his solicitors, wrote and faxed the Employment Tribunal and the Respondents with a final schedule of loss and extra documents. This apparently included an illegible (or so the Respondents said) copy of a payslip and a report from the college where he was studying. According to the Respondents there was no finding of fact in relation to that. The schedule of loss and witness statement were received on 16. On 14 March, the due date for service of extra evidence on which Mr Baker relied expired.[15]On 4 April the matter came back for hearing. When the matter came back for hearing the first stage was to consider the application that the remedies claim be struck out, pursuant to Rule 13 (2) (e). The first problem that confronted Mr Baker and Ms Woodruff (who was Counsel then representing him) was that they had clearly not complied, at least in detail, with the Directions. But there were further and more substantial problems.[16]They had produced an amended schedule and though we have been supplied with copies of the schedule, which was made available at the February hearing, we have not been given a copy of the schedule of loss produced for the hearing of 4 April. We are told that in the material part it is in identical form to the one that has been produced to us.[17]They had produced also a letter purporting to be from a Mr Gingles who, we were told, was Mr Baker's Line Manager at some point. The Employment figures given in that letter, which would appear to have been produced shortly after the hearing in December, were entirely inconsistent with the figures given in the schedule of loss. For example, the schedule of loss shows Mr Baker as having been employed at £4.50 an hour and earning £526.50 per month for the period December 2000 to June 2001. This compares with the figure in the letter, which as I say is dated either December or possibly early January, which suggests that his rate of pay was £666.67 gross and £582.10 net per month. The letter went on:
"I cannot see that Jamie's rate of pay will increase beyond £5.00 per hour within the next eighteen months."
[18]To compound that inconsistency, the Respondents produced a letter, apparently faxed through to them that morning. The fax heading at the top indicates it was faxed at 9.21am on 4 April, though the manuscript date on it is 04/03/01. We are satisfied that that is simply a mistake and it should read 04/04/01. That letter reads:
"I confirm that Jamie is earning £11,000 per year - £5.29 per hour. He has been on this rate since Jan 01."
[19]On production of that letter Ms Woodruff did not challenge the information contained in it. The position therefore was this: that there were three inconsistent versions of the claimant's claim before the Tribunal and it was quite impossible to tell what the case was that he was, in truth, making.[20]The Tribunal, when presented with this, made a decision, paragraphs 9 – 11 of which read as follows: 9 "Ms Woodruff says that the Tribunal should not concern itself at this stage with the content of documents, such going to proving or not that part of the Applicant's case. Ms Woodruff also states that it would be unfair to strike out the Applicant's claim bearing in mind the delays are short and the Respondents have not been prejudiced thereby. 10 We have come to the conclusion that, where the Applicant has failed to comply with the directions given on 15 December 2000 by 28 February 2001 and then further failed to comply with directions given on 28 February 2001 within time, he has put himself in a dangerous situation. The Applicant was informed clearly at the last hearing that he risked having his claim struck out. Furthermore, the relevant document on which the Applicant relies is undated and unsigned and inconsistent with his amended schedule of loss which, if the fax produced by Mr Isaac is correct, does not show the correct rise of earnings in January 2001. 11 Ms Woodruff did not challenge the information in the fax and therefore an amended schedule of loss which the Applicant knows to be wrong has been presented to this Tribunal. In these circumstances, we have no hesitation in striking out that part of the Applicant's Originating Application relating to remedies for unfair dismissal. We believe that he and/or his lawyers have treated the Respondents and this Tribunal in a manner which is or borders on being contemptuous. These proceedings have been conducted on the Applicant's behalf in a manner which is covered by the Rule in question. They therefore struck out the application so far as it related to remedies.[21]The argument that Mr Mitropoulos has addressed to us is this. The relevant part of the Rule, 13 (2) (e), provides that a Tribunal may 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, has been scandalous, frivolous or vexatious.[22]He then refers us to Harvey on Industrial Relations at Paragraph T-347 which says:
"This ground for striking out, i.e. Rule 13(2)(e) was introduced by the 1993 Rules. Its purpose is to provide a means for dealing with litigants who conducted their cases in a disruptive and unruly manner, or refuse to obey the directions or the Chairman, but whose cases could not be struck out on any of the other two grounds [i.e.

(f) or pleading scandalous, frivolous or vexatious (d)]"

[23]He goes on to say that this provides for two distinct situations. The first of which is where there has been a contumelious and intentional default by the Applicant. He says that appears to be the basis on which the Tribunal had acted but he submits that the conduct of Mr Baker has not been contumelious or intentional.[24]His submission is that the directions given on 28 February have been substantially complied with and that there was no possible way in which the conduct of the Applicant or his advisors could be described as bordering on the contemptuous.[25]The Respondents had been furnished with all relevant statements and documents approximately 3 weeks before the remedy hearing and, he says that, in any event, even when there is a peremptory order there is still power to extend time for compliance and it is necessary to look with care at any case where there is an attempt to strike out the claim. He submits, that this the case where there has been delay but it has not been inordinate or excusable and that therefore because there could be a fair trial the matter should not be struck out.[26]His suggestion is that the Tribunal could have dealt with the matter perfectly adequately by an adjournment making an Order for Costs if they thought that the conduct was unreasonable and that the order of striking out was a draconian sanction which was one which was inappropriate for this type of case.[27]His final point was the remedy of striking out, where failure to comply with a Rule has not rendered a fair trial impossible, is likely to be a breach of Article 6 of the European Convention on Human Rights as being a breach of Mr Baker's right to have his civil rights determined at a fair and public hearing, within a reasonable time, by an independent Tribunal. Reference was made to a decision reported in The Times in December 2001.[28]The position, as we see it, is rather different. This was not merely a case of delay. This was a case where the Tribunal could properly say that it had been treated in a contumelious manner. Both it and the Respondent had been treated with disdain.[29]Although it is true that a variety of documents had been served, some of them within time, others not that far out of time, it could never truly be said that there had been any serious attempt to comply with the Directions which had been given. These were Directions, moreover, which had been given after a previous default and had been given with the express warning that failure to comply might result in the application being dismissed.[30]The position that faced the Tribunal and the Respondents was that it was quite impossible, even at the hearing, to tell what the case for compensation was which was being advanced. In the first place there was a schedule; in the second place was a letter advanced by the Applicant, which his Counsel described as being a relevant document; in the third place there was a fax, the content of which was not challenged by his Counsel.[31]The end result was that, if one looked at the schedule as being the defining document, what was being put before the Tribunal was a document which Mr Baker must or ought to have known was substantially inaccurate. I say he must or ought to have known because we do not know as between himself and his solicitors where the blame, for what appears on the face of it to be a substantially inflated claim, lies.[32]The Tribunal were entitled to look at the proportionality of the matter; here was a claim worth a little over £5,000. We take the view that they were quite entitled in all the circumstances to say that this was a claim which, given the behaviour of the Applicant or either by himself or through his advisors, should not have been allowed to proceed any further.[33]It is true that other Tribunals might have considered proceeding in other manners. It is possible that another Tribunal might have been satisfied by making an Order for Costs against Mr Baker. We note, incidentally, that, under the Employment Tribunal Rules it would not have been possible to make a waste of costs order against the legal advisors. There is no power under Section 81 of the Supreme Court Act in a Tribunal to make a wasted costs order.[34]It is possible also that another Tribunal might have been content simply to strike out that part of the claim which related to his claim for future loss of earnings (what is described as the 'compensatory award') and proceed there and then with his claim for the basic award and for his lack of statutory protection. Those two figures, according to the amended schedule, amounted to something under 10% of his claim.[35]We cannot say, however, that, in taking the course which it chose to adopt, the Tribunal erred in law. It reached a conclusion which may have been harsher than the conclusion to which other Tribunals would have come, but given the way in which the Applicant, either personally or through his advisors, had chosen to treat the Tribunal and his opponent, it was not a decision which could be said to be outside the bounds of what a reasonable Tribunal could do.[36]In our judgment, therefore, the Tribunal's decision is not one which could be upset on appeal and in those circumstances, although we have permitted the claim to proceed to a full hearing on the basis of the Summary Reasons, we dismiss the appeal.[37]Nothing that has been said in this judgment pre-judges or affects one way or another the position as between Mr Baker and the solicitors who have represented him. That is a matter with which we are not concerned.[38]Finally, we should like to thank Mr Mitropoulos for the care and skill with which he conducted this appeal.