Catton v. Shribman & Anor [2002] UKEAT 111_01_1010

EAT
Catton v. Shribman & Anor
[2002] UKEAT 111_01_1010 · 2002-06-20
[1]By a Decision promulgated on the 26 th October, 2000 the London Central Employment Tribunal (the Chairman Mrs. Hill sitting alone) struck out the Appellant's complaints of sex and race discrimination and breach of contract under Rules 13 (2) (d) and (e) of the Employment Constitution and Procedure Regulations 1993, which were then in force. The Appellant's subsequent request for a Review was dismissed by the Chairman on the 6 th December 2000. The Appellant appealed against the Decision to strike out his complaints and his substantive appeal was heard by this Appeal Tribunal on 20 th June 2002.[2]Before us the Appellant represented himself. The Appeal was resisted by both Respondents, who were represented by Martyn Barklem of counsel. When the hearing began the Appellant initially applied for the hearing to be adjourned on the grounds that the legal representative he had been expecting had failed to appear. This application was resisted by Mr. Barklem and, having heard counsel's submissions, the Appellant withdrew his application for an adjournment and told us that he was anxious for the matter to be heard and for there to be no further delays. We therefore proceeded to hear the appeal and indicated that the Appellant could ask for time during the hearing if he needed to consider matters raised in argument which he was unable to deal with immediately. In the event the hearing proceeded smoothly and without interruption; and we were grateful to both the Appellant and counsel for the help they gave us in dealing with the issues arising in this case. Background[3]The procedural history in this case is relevant to the Tribunal's decision to strike out the claims and we shall therefore deal with it in greater detail than would normally be the case. These proceedings began when the Appellant lodged an Originating Application with the Tribunal on the 17 th May, 2000. He is from New Zealand and, whilst staying and working in the United Kingdom, was placed by the First Respondents, an employment agency, in a job with the Second Respondents as a Reconciliations Assistant. He held that job only for some 10 days between the 13 th and 23 rd March 2000. He complained that during that time he was subjected to sexual harassment by his supervisor, Jenny Spendiff, in the ways particularised in his IT1. This led him to complain about it and he contends that he was promptly dismissed as a result. He also complains about some abusive comments made to him by Mark Edwards of the First Respondents, namely that when the Appellant complained Mr. Edwards had said that he was a "traveller" and that "many people in your position have had to put up with worse and you should be grateful", the word "traveller" being in this context a recognised expression used to refer specifically to Australasian migrant workers. In his IT1 he complained against both Respondents of sex discrimination, victimisation, racial discrimination (this arising from the remarks of Mr. Edwards) and of breach of contract.[4]Our EAT Bundle contained only the Notice of Appearance filed in response by the Second Respondents, dated 26/6/00. However, the First Respondents also filed a Notice of Appearance, which is contained in the Supplementary Bundle (SB) provided for us by the Appellant, at pp. 34-37. Both Respondents denied all the allegations. We have also seen Sex Discrimination Act Questionnaires, which were served on the Respondents (SB 24-32) and a Reply from the Second Respondents at pp.40-48. We point out at this stage that Mr. Barklem also handed in a number of documents during the hearing before us, described as extracts from the Employment Tribunal bundle, and we added these to the back of the Supplementary bundle from pages 179 – 184.[5]Thereafter the procedural history, so far as is relevant, was as follows. The Second Respondents' solicitors, Langley & Co., wrote to the Tribunal on 4 th July 2000, asking for a Pre-Hearing Review to be held, on the grounds that the Appellant had no reasonable prospect of success at a full hearing (SB 179). However, nothing seems to have come of this because the substantive complaint was fixed for hearing for 2 days on 25 th and 29 th August 2000 and a notice to that effect was sent to the parties on 19 th July (SB 64). The Tribunal made an Interlocutory Order for Discovery against the Second Respondents (SB 69) on 14 th August. On the following day the Second Respondents' solicitors, Langley & Co., faxed a letter to the Tribunal asking for the discovery order to be set aside (SB 71). Importantly, in this fax they also asked "….that the tribunal order that the Applicant's originating application be struck out under Rule 13 (2) (e) of the Industrial Tribunals Rules of Procedure 1993 on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicants has been scandalous, frivolous or vexatious." The conduct referred to related to alleged, abusive and inappropriate telephone calls made to the Respondents by the Appellant's fiancée acting on his behalf; and to the Respondents' allegation that the Appellant was pursuing the proceedings in the form of a vendetta, to secure maximum publicity and compensation. The Appellant denies any such behaviour.[6]It is common ground both that Langley & Co. never wrote to the Appellant, informing him of their request for the claim to be struck out, and that the Tribunal never copied their letter to the Appellant. The Tribunal replied to Langley & Co. on 18 th August, informing them that "….you may raise this matter with the Chairman at the hearing." On 18 th August Langley & Co. also wrote to the Appellant enclosing copies of the documents and witness statements they intended to rely upon at the tribunal (SB 183).[7]Subsequently, on 24 th August, the Tribunal granted the Appellant's request for a postponement of the hearing on 25 th and 29th because of illness (SB 81). By letter dated 31 st August the Tribunal then ordered that there be a hearing for Directions on the 13 th October 2001 (SB 82). This notified the parties that on that day a Chairman sitting alone would be dealing with the usual "case management" directions to clarify the issues and ensure the fair disposal of the case. No reference was made to any application by the Respondents for the claim to be struck out.[8]It seems that during this period, in the run up to the dates originally fixed for trial, there was what this Appeal Tribunal, in their judgment at the Preliminary Hearing, referred to as "a considerable degree of friction" between the Appellant and members of staff at the Tribunal. A letter from the Regional Chairman was sent to the Appellant dated 4 th September (EAT bundle 49-50) referring to various telephone calls received by the staff from a "Ms. Harris" and stating:
"….I must emphasise that this is your complaint to the Employment Tribunal and that it is in your interests that all should go smoothly. It is not helpful in achieving that for you or your representative to abuse the staff over the telephone. If you have requests to make, you should do as you did in relation to your postponement request and put them in writing."
The Chairman also recognised in her letter that the Appellant had not been well and asked him to let the Tribunal know if he would be too unwell to attend the hearing on 13 th October.[9]The Appellant replied by letter of 7 th August (SB 85), explaining that his partner, Miss Hamidi, was dealing with things for him, that a number of mistakes had been made by the person handling the file at the Tribunal and that this had caused them to complain. He denied that they had ever been abusive and referred to receiving letters from the Tribunal apologising for administrative mistakes. Such letters of apology are to be found at SB 63 and 67. Finally the Appellant confirmed that he would be well enough to attend the hearing in October. A further letter from the Regional Chairman of 8 th September (SB 86) noted what had been said and informed him that Mr. McIver was dealing with his complaints about the Tribunal mistakes.[10]Mr. McIver wrote to the Appellant himself, also on 8 th September (SB 87), following his investigation into the complaints made and the telephone conversation he had had with the Appellant. Some of the complaints were upheld and others were not. The importance of this letter however lies in the information contained in the concluding paragraphs. Mr. McIver there informed the Appellant that he had read the notes written about the case by the member of staff complained about and confirmed that "…they contain no derogatory comments or references and are entirely in line with our procedures." He then stated:
"….During our telephone conversation we agreed that we would now draw a line under previous matters connected with your case and that with the appointment of [DG] as your dedicated case officer, matters will hopefully now proceed without further problems."
[11]The parties attended the Directions Hearing on 13 th October 2001. The Appellant was at that stage represented by solicitors, as were the Second Respondents, the First Respondents appearing by counsel. It is common ground that, before the application to strike out the claim was made at the start of the hearing, the Appellant had received no notice of such application from either of the Respondents or from the Tribunal. He had therefore attended, with his solicitor, on the understanding that the Tribunal would be dealing only with the directions described in the letter to him from the Tribunal of 31st August. It would seem, further, that the First Respondents had not anticipated making such an application before the day of the hearing. Their counsel had prepared a case summary for the Tribunal (SB 166-169), setting out the factual and legal issues for trial, referring to discovery and witness statement orders and inviting the Tribunal to fix the dates for hearing. However, the hearing actually commenced, as the Chairman states in paragraph 6 of the Decision, with an application by both Respondents that the claim should be struck out under Rules 13 (2) (d) and (e). A bundle of documents running to some 200 pages was produced by the Second Respondents, many though not all of which, we are told by Mr. Barklem, were the same documents which had been sent to the Appellant on 18 th August. However, the Appellant had had no notice that the Respondents were going to make an application to strike out or were intending to rely upon documents in support. In that sense he was taken completely by surprise.[12]The Chairman heard the application and granted it, striking out the complaint under Rule 13 (2) (d) and (e). Unusually, for an Employment Tribunal, the entire proceedings were tape-recorded because a pilot scheme for tape-recording was under way at London Central. Tapes of this hearing are therefore in existence but they are not before us in this appeal for reasons we shall explain later. The Tribunal's Decision[13]In paragraph 6 of the Decision the Chairman referred to the application being made under paragraphs (d) and (e) of Rule 13 (2). She further stated that "….The Applicant had been forewarned by the Respondent that the application would be made." It is accepted that neither the Respondents nor the Tribunal had forewarned the Appellant that the application was to be made on 13 th October. The Chairman therefore misdirected herself on this point.[14]After summarising the Appellant's complaint, as pleaded, the Chairman referred in paragraphs 9 – 15 to some of the allegations of "scandalous" or "vexatious" conduct relied upon by the Respondents and contained in various attendance notes and correspondence in the bundle of documents being used at the hearing. No evidence was called. The Appellant denied many of the allegations, as the Chairman recognised in paragraph 16.[15]In paragraph 19 the Chairman held that:
"In reaching my decision I took into account not only the matters that were before me in the bundle prepared by the Respondents but also the matters contained within the Tribunal file. These indicated that the Applicant's fiancée had, according to a number of Tribunal clerks, been exceedingly rude and abusive such that they had cause to register a complaint about her to their manager. I was also aware that the Applicant's fiancée and the Applicant together had made a formal complaint about the conduct of Tribunal staff. This matter had been the matter of internal investigation. The results of which have been notified to the Applicant."
It is unclear what matters were being referred to here. We have not seen the file referred to and the contents of the file were never shown to the Appellant. Nor was he told what they comprised.[16]In paragraph 21 the Chairman gave her reasons for striking out the racial discrimination claim against the First Respondents under Rule 13 (2) (d) as follows:
"The claim had no potential to be successful. The Applicant had not in any way identified the claim that related to his position as a New Zealander. To use the word "traveller" is a word connected with gypsies. It is not a word that is seen referring to a person from New Zealand even if they are travelling around the world. It could not be seen as a word that relates to his race or ethnic origin…….The case was wholly without merit and the only purpose in bringing it would appear to be vexatious or scandalous and therefore I strike the claim out."
Rule 13 (2) (d) provides that a Tribunal may:
"subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application…. or anything in such application….on the grounds that it is scandalous, frivolous or vexatious"
[17]In relation to the complaint of sexual harassment the Chairman found, at paragraph 22, that "The evidence in relation to sexual harassment appeared on the face of it to be so thin as to be unsustainable but I could not be satisfied that the presentation of the claim itself could be said to be scandalous or vexatious. I therefore considered the remaining claims on the grounds of whether the way in which the proceedings had been conducted under Rule 13 (2) (e) applied." She stated that she "….accepted the evidence that abusive telephone calls had been made directly to the Respondent", found that "The behaviour of Jenny Spendiff would not in the minds of a normal person be seen to be that of harassment". and concluded that "Whilst it is quite normal for litigants pursuing a claim of sex discrimination to expect there to be some financial recompense, the way in which this presented was to be as a vendetta as asserted by the Respondents." In the final paragraph the Chairman concluded that, in order to meet all the requirements of the Human Rights Act, she had "….no alternative but to strike out these claims.

(e) gives a Tribunal power:

"….subject to paragraph (3), at any stage of the proceedings, order to be struck out any Originating Application…..on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Appellant….has been scandalous, frivolous or vexatious."
The Appeal[18]The Appellant sought a Review of this Decision on the grounds that he had had no notice of the application to strike out the claim and that the interests of justice required such a review. This request was refused by the Chairman in a decision sent to the parties on 6 th December 2000. The Appellant then appealed to this Tribunal against the Decision of 26 th October.[19]At the Preliminary Hearing held on 13 th June 2001, the Appellant appearing in person, this Appeal Tribunal decided that arguable grounds existed to proceed to a full hearing and identified them in their judgment. Leave was given to amend the Notice of Appeal to add one further ground. We need not deal in detail with the somewhat protracted procedural history before the EAT since that date, in relation particularly to the disputes about the Tribunal tape recordings, because, on 14 th June 2002, the matter came before Mr. Justice Lindsay (President) for directions.[20]The President set out in his Judgment the 6 issues to be considered at the full hearing of this appeal, according to the Preliminary Hearing judgment of 13 th June 2001, namely: 1. Whether the Appellant had been given adequate warning that there would be a strike out application to be ruled on at the hearing on 13 th October; if not, whether it was a proper exercise of discretion to proceed to hear the application. 2. Whether he had had an adequate chance to respond to the application and, in particular, whether he had an adequate chance to deal with the Respondents' 200 page bundle of documents, which was produced on the day. 3. Whether he had had the opportunity to see notes of complaints by staff at the Employment Tribunal on the file, which were relied upon in the Tribunal's striking out of his claim; and whether, given that matters had been resolved to everyone's satisfaction in that regard by 8 th September, it was right for the Chairman to rely on such complaints in any event. These three issues may conveniently be grouped together under the general heading of procedural errors, amounting to an error of law. 4. Whether there was any jurisdiction existing at the time the Chairman heard the case enabling her to strike out on a view of the merits of the case, considering in particular the case of Care First Partnership v Roffey. 5. Whether the Tribunal had dealt adequately with the issues of breach of contract and victimisation, which were not in fact referred to at all in the Decision. 6. Whether there was bias apparent in the conduct of the Chairman, Mrs Hill.[21]The President considered that the tapes and transcripts of the hearing went, essentially, only to the 6 th and last of those issues, namely bias. He therefore stated that "Issues 1, 2, 3, 4 and 5 can all be very adequately dealt with without admission in evidence of the existing transcripts and without further transcripts or without any listening by the Employment Tribunal to the tapes." In this way, he separated out the issue of bias from the other issues and directed that the 5 remaining issues should all be dealt with on the 20 th June, the date fixed for the hearing of the appeal, unless the panel hearing the matter ruled otherwise. There would be no requirement, in those circumstances, for that panel to admit any transcript or listen to any tape. He gave guidance as to the approach to be adopted if, after the hearing of the appeal, the issue of bias had to be determined and directions had to be given as to the tapes.[22]We agreed with that course and the parties did not seek to persuade us on the 20 th June to adopt a different one. We turn therefore to consider the 5 issues identified above. Issues 1 – 3: The Procedural Errors[23]It seems clear to us that the Appellant had not had any notice that the strike out application was to be made on the 13 th October and this has not been disputed. The Appellant therefore prepared with his solicitor and attended on that day, on the basis that the Tribunal was to deal only with case management directions to progress the matter to a hearing. The Chairman therefore erred in holding, at paragraph 6, that the Appellant had been forewarned by the Respondent that the application would be made. By the time of the Review application, the Chairman states in paragraph 2 of that decision:
"….As it was apparent that the Applicant's representative had not fully appreciated that he may need to deal with an application to strike out, he was given 25 minutes in which to take instructions from his client following the submissions by the Respondents' representative …."
This would appear to contradict the clear finding in paragraph 6.[24]The Chairman further sought, on the Review application, to rely upon the provisions of Rule13 (3), on the basis that a tribunal was not required to send to a party written notice of the application to strike out under Rule 13 (2) (d) or (e) if the party has been given an opportunity to show cause orally why the order should not be made. However, no reference to rule 13 (3) appears in the Decision which is the subject of this appeal. In our view that is because the Chairman was proceeding, erroneously, on the basis that the Appellant had been forewarned.[25]In any event, we consider that reliance upon the opportunity given to a party to show cause orally, in place of written notice, contained in Rule 13 (3) is not appropriate where the grounds for the application to strike out concern conduct occurring some time before the date when the application is heard, or occurring over a period of time, as in this case. In such circumstances it is important to ensure that a party called upon to answer accusations about such conduct has proper notice of that application and is able properly to prepare to defend himself. The opportunity to show cause orally which is given to a party within Rule 13 (3) must, we think, be an adequate opportunity, in particular given the draconian nature of an order to strike out their claim.[26]Further we do not consider, in all the circumstances, that this Appellant can be said to have had an adequate chance to respond to the application. Even allowing for the fact that(a) many of the documents in the bundle had been disclosed in August and(b) that the Chairman extended some 25 minutes to the Appellant's representative before requiring him to respond to the application, we consider that the Appellant would not have been able properly to deal with the allegations being made. It is hard to see how he could have been expected to address his mind to the various allegations in the documents being relied upon, which appear to have been taken at face value, when he had not had an opportunity to formulate a response or to provide documents of his own rebutting the allegations, which he clearly denied.[27]We find, in addition, that the Chairman erred in having regard to matters on the Tribunal file relating to the dispute which had taken place between the Appellant and the Tribunal staff. In the first place, he was neither shown the contents of the file nor given any details as to what they comprised. We find it hard to understand what these matters might be, given the correspondence which we have seen between the Appellant and the Tribunal referred to above. Further, we take the view that the Appellant was entitled to assume, following the resolution of his complaint and the letter from Mr. McIver of the 8 th September, that nothing was going to be held against him in relation to the future progress of his claim. He was told in terms that nothing derogatory was written about him in the case notes entered by the member of staff about whom he had complained; and Mr. McIver's letter spoke of the need to "draw a line" under the dispute and move forward in a positive way.[28]We therefore find that the Appellant has made good his complaints about procedural errors, such as to amount to errors of law on the part of this Chairman, for the reasons given and that it was an improper exercise of discretion to proceed to hear the application in the circumstances. The Appellant also relied, in this context, on breaches of the Human Rights Act but we do not consider that human rights principles add anything to the general domestic principles which already apply, in relation to the fair conduct of Tribunal proceedings, and we therefore do not consider it necessary to address them in this appeal. Jurisdiction[29]This issue concerns the decision to strike out the racial discrimination claim under Rule 13 (2) (d), which the Chairman found to have "no potential to be successful" and to be " wholly without merit". The point here is a short one. In Care First Partnership Ltd. v Roffey and Others [2001] IRLR 85, the Court of Appeal held that an employment tribunal had no jurisdiction under the 1993 Rules of Procedure to strike out the applicants' claims at the start of the hearing on the grounds that they stood no reasonable prospect of success. In Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288 , the Court of Appeal distinguished cases where there was no reasonable prospect of success from those which were on any footing bound to fail, which could properly be said to be "frivolous" or "vexatious", such as to found jurisdiction to strike out under Rule 13 (2) (d). Mr. Barklem submits that the racial discrimination complaint here was a claim which could properly be said to have no chance whatever of success and was therefore properly struck out under the Rule.[30]We do not accept his submissions. The Chairman dealt with the word "traveller" as if it was capable of bearing only one meaning, namely that it related to gypsies. She further observed that it could not be seen as a word that relates to the Appellant's race or ethnic origin. The meaning relied upon by the Appellant however, is one which relates to Australasian migrant workers and is, he maintains, often used by employment agencies to describe workers like himself, from New Zealand, working here in temporary jobs. It thus, at least arguably, falls within the definition of "racial grounds'" in section 3 (1) of the Race Relations Act 1976 . The precise words used by Mr. Edwards and their meaning are in our view matters of evidence to be considered at the hearing. As the House of Lords has recently emphasised in Anyanwu and another v South Bank Students' Union and South Bank University [2001] IRLR 305 discrimination cases should not be struck out save in the plainest and most obvious cases. "Discrimination cases are generally fact-sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest." (Lord Steyn at page 308, paragraph 24).

(d) Breach of Contract and Victimisation

[31]The final issue to be determined is whether the Chairman erred in failing to deal adequately with the Appellant's claims for breach of contract and victimisation. It is correct that no mention is made in the Decision of these claims or their merits specifically and it is quite clear from the Originating Application that the Appellant had pleaded them as separate heads of claim. However, save for the racial discrimination claim which is dealt with under Rule 13 (2) (d), the Chairman deals with all remaining claims under the general head of conduct during the proceedings within Rule 13 (2) (e). These claims appear therefore to have been wrapped up in the general findings as to scandalous conduct in paragraphs 22-23. No separate error of law arises in these circumstances, in our view, in the failure to consider these complaints specifically.[32]We therefore conclude, for the reasons given above, that this appeal should be allowed and the Appellant's complaint reinstated. In these circumstances it is now unnecessary to determine the further allegation of bias made in the final ground of appeal and there are no longer any directions required in relation to the tapes and transcripts which related to it. This is a case where we consider that the complaint could not reasonably have been struck out below by a Tribunal properly directing itself on the law. We therefore direct that this matter should now be remitted to a freshly constituted tribunal to be determined on its merits.