MRS D M JONES v KENT COUNTY COUNCIL [2002] UKEAT 1051_01_0602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1051_01_0602Case No Appeal No. EAT/1051/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS D M JONESAPPELLANTKENT COUNTY COUNCILRESPONDENT
Before
His Honour Judge WilkieDate 6 February 2002
[1]APPEARANCES For the Appellant MR I WILSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE WILKIE QC This is a Preliminary Hearing of an appeal by Mrs Jones against a decision of a Chairman of the London South Tribunal dated 5 June 2001 which struck out her complaint that she had been excluded from membership of her employer's pension scheme because she was a part-time worker.[2]The Applicant presented her complaint on 23 December 1994. The date on which her employment with her employer, Kent County Council, came to an end was apparently more than six months prior to the commencement of the proceedings. The time limit for bringing such a complaint is six months from the ending of the employment relationship in question, there being no provision for extending that limit in any circumstances.[3]The matter was one of a large number of matters held in abeyance whilst the general issue of the discriminatory nature of the omission of part-time employees from pension status was being determined elsewhere. By March 2001 however, this application came to be dealt with by the Employment Tribunal.[4]The Extended Reasons of the Tribunal Chairman record that by a letter dated 22 March 2001 the Applicant was invited to show cause why her complaint should not be struck out pursuant to Rule 13(2)(d) of the 1993 Regulations on the grounds that, as it must inevitably fail, it would be frivolous or vexatious to pursue it. The reasons go on to record that as the Applicant had failed to show cause why her complaint should not be struck out the Order was made striking it out.[5]Mrs Jones seeks to appeal against this decision and a subsequent failure to view this decision on two technical grounds. The first is that under 13(2):
"The tribunal may – … (d) 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 respondent has been scandalous, frivolous or vexatious; …"
Paragraph (3) provides however that:
"Before making an order under sub-paragraph (d), …. 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…"
It is apparent, both from what Mrs Jones says and from a letter of 18 January 2002 from the Employment Tribunal to the Employment Appeal Tribunal, that there is no record of a letter of 22 March 2001 on their files. Mrs Jones' contention has throughout been that she never received any such letter and therefore did not have the opportunity to show cause.[6]It seems to us that on the basis of that documentation it may well be that the Tribunal Chairman erred in making his Order under Regulation 13(2)(d) when the necessary precondition for its operation did not exist. Certainly there is sufficient for this matter to go forward to an Inter Parties Hearing on this issue.[7]Mr Wilson has, on behalf of Mrs Jones, submitted a second procedural argument. That arises from a letter from the Employment Tribunal Regional Office, London South, to Mrs Jones dated 5 September 2001. That letter asks Mrs Jones to supply the Secretary to the Tribunal with the last date on which she worked for an employer under the teacher's superannuation scheme, upon receipt of which, that letter said, Mr Booth, the Chairman, would be asked to review his Order. This letter was in response to a letter of 1 August 2001 from Mrs Jones apparently seeking a review of the Order on the footing, under paragraph 11(1(a) of the Regulations, that the decision was wrongly made as a result of an error on the part of the Tribunal's staff, namely the failure to give opportunity to show cause. Mrs Jones, on 19 September, wrote to the Regional Secretary of the Tribunals, a letter which, amongst other things, gave the information requested about the last date on which she worked for a relevant employer. Notwithstanding her having supplied that information as requested, there is, we are told, no further correspondence from the Employment Tribunal to Mrs Jones, and certainly nothing which would indicate that Mr Booth was asked to, or had, reviewed the Order. Accordingly, the second string to Mrs Jones' appeal is an unlawful failure to review the prior decision as she had requested.[8]Once again, we think this is an eminently arguable point to be pursued at an Inter Parties Hearing. We therefore give permission for that to go forward. It would no doubt be helpful to the Tribunal at the Full Hearing if the present hand written additional grounds of appeal were put in a more formal and, dare we say, legible form.