MR D WOLLEN v SCHAFFNER EMC LTD [2002] UKEAT 938_01_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 938_01_2102Case No Appeal No. EAT/938/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D WOLLENAPPELLANTSCHAFFNER EMC LTDRESPONDENT
Before
His Honour Judge A WilkieLord Davies of CoityDate 21 February 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent MISS A PALMER (of Counsel) Instructed by: Mr Sean Morris The Royal Bank of Scotland 134 West Regent Street Glasgow G2 2RQ HIS HONOUR JUDGE A WILKIE QC This is an appeal by Mr Wollen against a Decision of the Employment Tribunal dated 17 May 2001 striking out his Originating application on the ground that he had failed to comply with an Order of the Tribunal dated 22 March 2001, requiring him on or before 5 April 2001 to provide full particulars of each and every allegation he sought to rely on in support of his claim against Schaffner EMC Ltd.[2]The case came on before a different panel of the Employment Appeal Tribunal on 19 December last, when they directed that it proceed to a full hearing, having, in our view mistakenly identified the appeal as against the refusal on 6 June by the Tribunal Chairman of a review. In fact upon a proper reading of the Notice of Appeal, it is clear that his appeal was against the decision to strike out dated 17 May. The Appellant had, by a letter of 24 October last, asked that the appeal be adjourned until some time late in 2003 when he would be returning home from working in Bangladesh. That application was refused by the Registrar and, accordingly, the hearing went ahead on 19 December last.[3]Today, Mr Wollen has not attended the Tribunal to make representations, nor has he been represented for the reason that he is in Bangladesh and, according to him, does not have the resources to engage legal representation. Accordingly we have heard this appeal in his absence. We have, however, had the advantage of representation on behalf of the Respondent of Anya Palmer, of Counsel, and we are indebted to her for her fair and helpful submissions and Skeleton Argument.[4]The Notice of Appeal of the Appellant was received by the Employment Appeal Tribunal on 18 July last, the notice itself being dated 16 July. That notice was out of time. It does not appear that this point was picked up at any stage until Miss Palmer's involvement. She, in her Skeleton Argument has, properly, taken the point that the appeal was out of time. She has referred us to the relevant authorities, namely the United Arab Emirates -v- Abdelghafar [1995] IRLR 243 which was approved in the Court of Appeal decision in Aziz -v-Bethnal Green City Challenge Company Ltd [2000] IRLR 111 . Although there is much merit in the argument that we should dismiss this appeal because it is out of time, we are unwilling to dispose of it on that basis. It is clear that one of the important tasks by which the Tribunal should approach such a question, is to seek an explanation from the party who is out of time, as to why they were out of time in launching the appeal.[5]Mr Wollen has never been made aware of the fact that his appeal was out of time, and has never, therefore, been given the opportunity to give such an explanation. We therefore think it would be wrong of us to determine this appeal without him having had the opportunity to do so, and therefore we do not deal with it on that basis.[6]Mr Wollen launched his application to the Employment Tribunal for unfair dismissal on 19 February last year. He had been employed by the then Respondent for just under six months, between 31 July 2000 and 10 January 2001. His complaint, therefore, had to be one for which the qualifying period of employment did not arise. His complaint was limited to the following passage in his ET1:
"Summary dismissal without warning a few days after making written complaint of: 1. Corporate malfeasance (tax evasion). 2. Complaint re the company/manager attempts to deny rights under the Working Hours Directive. 3. Unanswered complaint of bullying and harassment by managers."
[7]On 22 March, the Tribunal, in our judgment, entirely justifiably, made an Order that the Applicant furnish in writing to the Respondent and to the Tribunal on or before 5 April 2001 full particulars of each and every allegation that he seeks to rely on in support of his claim.[8]The Applicant, in purported response to this Order, sent to the Tribunal a folder, apparently containing a very large number of documents. The Regional Secretary of the Tribunals on 5 April wrote to Mr Wollen. She refers to the letter of 3 April which, apparently enclosed the folder, and she says this:
"This was referred to a Chairman …..who directs that I return your folder as being miscellaneous, and excess documents which the Tribunal is not prepared to sift through. Any germane documents can be brought to the hearing. You should understand that the Chairman does not regard this as compliance with the Tribunal's Order of 22 March 2001. You should provide the further particulars in writing without delay to the respondent. There is no need to send a further copy to the Tribunal. You have an extension to 11 April 2001 to do this failing which your Originating Application could be struck out."
There was, apparently, no response to this letter but on 8 May the Respondent wrote to the Employment Tribunal. The matter by that stage had been listed for a hearing on 22 May. In the light of the Appellant's non-compliance with the Order for Further and Better Particulars the Respondent was requesting that the Originating Application be struck out on the grounds that the Applicant had failed to comply with an Order of the Tribunal.[9]On 10 May, the Tribunal Regional Secretary wrote to Mr Wollen to the effect that the file had been referred to a Chairman who had requested her to inform Mr Wollen that under the powers conferred by Rule 4(7) he proposed to make an Order that the Originating Application be struck out on the ground that he had failed to comply with the Order of 22 March. The opportunity, however, was given to Mr Wollen if he wished to say anything why such an Order should not be made, to write giving his reasons by 18 May.[10]On 11 May Mr Wollen wrote to the Employment Tribunals, purporting to give reasons why the case should not be struck out and he relied upon what he had already done, namely supplying the Respondent with copies of documents in a timely manner, following the Order. He says that:
"Within the documents were details of the allegations made against the Respondent"
The letter also indicates that what was sent to the Respondents was not numbered or indexed. There is no indication that the bundle that was sent to the Tribunal was numbered or indexed either.[11]Following upon receipt of that letter, the Chairman of the Tribunals made an Order striking out the Originating Application and giving detailed reasons for it. In particular, in paragraph 4, he says that on 3 April the Applicant produced a voluminous folder of documents he wished to rely on in respect of the Tribunal's Order and there then was rehearsed the correspondence to which we have already referred.[12]In paragraph 9 of the Decision he says as follows:
"I find that the applicant has not shown cause why his Originating Application should not be struck out. He had been asked very simply to provide further particulars of the three complaints of corporate malfeasance, denial of rights under the Working Hours Directive and complaints of bullying and harassment. It was pointed to him on 4 April that the Chairman could see no reason why he was unable to give further particulars ……but nevertheless granted an extension. Despite this extension, the applicant did not address the issue. He sent in a voluminous folder and was advised on 5 April that this was not regarded as compliance with the Tribunal's Order. He had already been advised of the possibility of strike out on 4 April and this was reiterated in the Tribunal's letter of 5 April"
The Chairman then concluded in paragraph 10:
"In the Chairman's view, the applicant has consistently refused to answer or give particulars to three claims. It was pointed out to him there was no reason why he should not be able to comply. He has been told of the sanction of strike out on a number of occasions. Tribunal Orders are not to be taken lightly. The respondent is entitled to know the case it has to meet. The applicant has been given every opportunity to comply but has deliberately sought not to do so and when he has responded has addressed or raised other issues."
And on that basis the application was struck out.[13]In our judgment, there is absolutely nothing in the history of the matter leading up to that decision or in the documentation to which we have been referred, which demonstrates that the Chairman was acting in any way improperly or outside his power, or unreasonably, in deciding to strike out the application. The request was a perfectly reasonable one for the Tribunal to have made. The Applicant, in his own application, indicated that he had written to the Respondent, setting out the complaints that he then made. It would not have been difficult for him to extract that document from the volume of documents which he provided to the Tribunal, and it is wholly unreasonable of an applicant, in a response to a specific Order, to send a volume of documents, and effectively invite the Tribunal to sift through it, in order to see whether it can identify a document or documents which provide the details which have been ordered.[14]In those circumstances, in dealing with the substance of his appeal, we are of the view that the Tribunal's Decision was perfectly correct and, accordingly, this appeal is dismissed.