EAT/944/01 MR P METANIE v (1) BOC EDWARDS 2) PERTEMPS RECRUITMENT PARTNERSHIP LTD [2002] UKEAT 944_01_0802

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 944_01_0802

Case No Appeal No. EAT/944/01 EAT/970/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/944/01 MR P METANIEAPPELLANT

(1) BOC EDWARDS 2) PERTEMPS RECRUITMENT PARTNERSHIP LTDRESPONDENT

EAT/970/01 MR P METANIEAPPELLANT

(1) PERTEMPS RECRUITMENT PARTNERSHIP LTD (2) BOC EDWARDSRESPONDENT

Before

Mr Justice Burton Mr P R A Jacques

Date 8 February 2002

[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE BURTON The Appellant, Mr Metanie, has brought appeals against Orders made by the Employment Tribunal at Brighton and this is the preliminary hearing to see whether such appeals should be permitted to proceed.

[2]The history of the applications before the Employment Tribunal must be briefly stated in order that the appeal can be understood. It seems that there has been a number of proceedings brought by the Appellant, but we are only concerned with two of them, which have now been consolidated in the Brighton Tribunal and are both the subject matter of this preliminary hearing.

[3]An application was made on 30 August 2000, the short subject of which can be described as being a complaint, as against both Pertemps Recruitment Partnership Ltd and Boc Edwards, that temporary staff were being treated differently from permanent staff.

[4]In November 2000, Further and Better Particulars of that allegation, or that case, were ordered, and on 28 November 2000, there was an application brought by the Appellant to strike out the Notice of Appearance which it seems failed.

[5]In December 2000, the second of the two consolidated proceedings was launched by a further application. That application contained four heads. The heads of complaint were as follows:

"1 The Type of Complaint a. Unfair dismissal under Race Relations Act 1976. b. Unfair dismissal under Employment Rights Act 1996 (As amended) Section 104 a and b. c. Wrongful dismissal for Breach of Contract in relation to Grievance/Disciplinary hearings as a statutory right. d. Wrongful dismissal for Breach of Contract in relation to termination of employment whether permanent or in three months assignments."

[6]On 5 February 2001, an Order was made by Mr Simpson as Chairman in relation to the two applications, and I think it was at that stage that they were consolidated. The Order made by Mr Simpson reads, in general terms, as follows:

"1 The Applicant shall by 19 th February 2001 provide full particulars of his claim for unfair dismissal pursuant to s.104 of the Employment Rights Act 1996 specifying each right asserted by him which he contends contributed to his dismissal. 2.

(c) of his ET1 [in the second action] to read: "

Wrongful, unlawful and/or unfair dismissal for breach of contract in relation to Grievance/Disciplinary hearings as a statutory right." The Applicant shall by 19 th February 2001 provide full particulars of each breach of contract and each statutory right relied upon in support of his claims in relation to paragraphs 1(c) and 1(d) of his Originating Application. 3. The claims made pursuant to [the two cases] shall be joined and heard simultaneously…." Orders were also made in relation to Further and Better Particulars which were sought by the Applicant of the Respondents' Notice of Appearance and there were Orders that the Respondents: "shall by 7 th May prepare a unified bundle of documents for service" on the Appellant.

[7]Prior to that date, as the Appellant has pointed out to us today, he had served some Further and Better Particulars on 5 January 2001, pursuant to an earlier request served by Pertemps on 15 December, which was the subject matter of the Order to which we have referred, dated November 2000. That Order, of course, related only to Particulars in the first application, which was the only one which was then extant, and it seems that no complaint was made about the adequacy of the Further and Better Particulars served on 5 January 2001. That document ends: "The Applicant has lodged a Claim for Unfair and Wrongful Dismissal." which was plainly a reference to the second application, of which, of course, no particulars were then being given, because none had been ordered, and the application stood, as we have indicated, in the short form in which it had just been served.

[8]It was, of course, in relation to that second application that Mr Simpson thus made the Order he did, on 5 February 2001. No compliance was made by the Appellant in relation to the Order of Mr Simpson, save that as has been shown us today, a very short document was produced, dated 15 February 2001, which added nothing to the original Notice of Application, and so on 29 March 2001, an application was heard by the Respondents, based upon the failure by the Appellant to comply with the Order of 5 February by Mr Simpson, and on that date, Mr Hossain QC, the Chairman dealing with the matter on that day, made an Order which reads as follows:

"The Applicant having failed to provide adequate or satisfactory Further and Better Particulars ordered by the Tribunal in paragraphs 1 and 2 of its Order for Directions dated 5 February 2001 ….unless the Applicant provides the said Further and Better Particulars on or before 4.00 pm on Thursday, 19 April 2001, the claims under paragraphs 1(b), (c) and (d) of the Originating Application [in the second case] be dismissed."

[9]The Appellant supplied, one day before expiry of the time limit, a document dated 18 April 2001, headed up:

"BETTER PARTICULARS OF THE CLAIM Pursuant to ET Order For Directions 29/03/2001"

. It was that document which fell for consideration at the hearing on 30 May 2001, before a different Chairman, Mr Davey. The case made by the Respondents was that the Unless Order, which had been made Mr Hossain QC, not having been complied with, the claims under 1 (b) (c) and (d) in the second application should be struck out.

[10]The Decision of the Tribunal was that, pursuant to the Unless Order, those claims should, indeed, be struck out, and they did so strike them out after careful consideration of the document of 18 April to see whether it did comply with Mr Hossain QC's Orders. They looked at the answers, paragraph by paragraph. We shall recite the document of 18 April and, as indeed the Tribunal below did, set them out against the Orders of Mr Hossain. What the document said was as follows: The rights asserted by the Applicant as relevant for SI 04 of Era 1996 are: I) The Applicant asserted that he is entitled to the same terms and conditions as permanent employees of BOC Edwards (those rights were not fully disclosed by the Respondents to date, both respondents failing to supply a copy of Employee Handbook as ordered by chairman Mr J Simpson in February with the time limit 12.03.01 per par 4 of the order) and to be given a written Statement of Terms and conditions identical in form and content with that of permanent employees (Mr Simmonds and Mr Barrett) working alongside the Applicant. The right is contained in SI, 4 and 6 of ERA 1996 with enforcements under S 11 of ERA 1996. 2) The Applicant asserted that he would enforce in an Employment Tribunal any right he would be entitled once those rights would be disclosed. The power to make a reference to ET for breach of contract is under ET Extension of Jurisdiction Order 1994. 3) The Applicant also asserted that he couldn't be refused work because he brought proceedings against the Respondents in order to enforce such rights." The rest of the document, which began: "Particulars in respect of the requested outcome of the case" sets out that the Applicant was asking for specified sums of £40,000 plus £6,000 multiplied by £20,000 makes £120,000, so a total of £166,000, together with compensation for loss of earnings, in addition.

[11]The Tribunal considered that document, and it began by considering the reference to the failure by the Respondents, complained of by the Appellant, to supply a copy of the employee handbook. It appears that the employee handbook was not, in fact, supplied until 18 April, as we are now informed by the Appellant, which was the very day on which he served the document. If, in fact, it was relevant for him to have that book although, of course, it would have taken time to look at he, in fact, had another day to comply with the Tribunal's Order, and/or in any event, could no doubt have supplemented the Particulars served on 18 April at any time prior to the hearing on 30 May, but he did not do so. He asserted, in the answer to the documents, that this was itself a delayed delivery of the employee handbook by reference to paragraph 4 of the Order of Mr Simpson, on 5 February, which Order stated:

"By 12 th March 2001 both Respondents shall file and serve their responses to the Applicant's claims."

It did not relate to a specific Order that there should be a delivery of the employee's handbook. We are far from satisfied that there was a breach by the Respondents in any event, but even if there had been, the question remains that it was fully put before the Tribunal that the Applicant was saying that he did not know what rights were available to him, because he did not have a copy of the employee's handbook. I quote from paragraph 7 of the Decision, and the Tribunal, rightly in our view, concluded that that was not a relevant answer to the real issue before them which is whether, in fact, the case that was put forward in the document of 18 April began to comply with the Orders of Mr Hossain, not least because, as we understand it from the Appellant, he had in fact been able, without the employee's handbook, to make a claim under section 11 of the Act, which has been separately dealt with, complaining of the Respondent's alleged failure to supply terms and conditions of his employment.

[12]But the question that was before the Tribunal was whether, irrespective of the fact that the Appellant did not have the handbook, and taking that into account, so far as was required to be done, the Appellant had set out a case as he had been ordered to do, particularising his claims, either for unfair dismissal or identifying a breach of contract, which he alleged would bring him the remedy which he sought of £160,000 or more, or otherwise? The Decision of the Tribunal read as follows:

"……the Tribunal finds that the Applicant is saying that he does not know what rights are available to him because he does not have a copy of the employee's handbook. This does not meet the requirements of either the Orders of Mr Simpson or Mr Hossain, because it does not set out the statutory right upon which the Applicant relies…."

And it then continues:

"The Tribunal finds that this [paragraph 1] means that the Applicant is saying that he did not receive a statement of terms and conditions of employment, but he gives no details of how this ties in with the provisions of Section 104. He does not say that he complained, he does not say that a statement was refused, he gives no details of when, where and to whom he spoke or wrote and no particulars of why it is alleged the failure to deliver a statement of terms and conditions of employment relates to the termination of his working for the First Respondents."

And then in relation to paragraph 2 the Tribunal says:

"The Applicant fails to state which right he considers to have been infringed. There is no attempt to deal with paragraph 1 or paragraph 2 of Mr Simpson's Order. The second half of paragraph 2 [of the document] states the obvious, the purpose of the Order was to ascertain what the breach of contract was and there are no details."

And then the Tribunal continues, in relation to paragraph 3 of the document:

"No particulars about the Applicant asking for work are given, nor the details of the work, nor when nor of whom. No particulars are given."

[13]That was the conclusion of the Tribunal and, taking into account the fact that he was a litigant in person, nevertheless, they also appreciated that the Applicant was dealing with the case, apparently very busily, in the sense that he had, himself, served a lengthy request for Further and Better Particulars on the Respondents in the case. The conclusion of the Tribunal was that: ".. on the basis of the document dated 18 April 2001, the Applicant has failed to comply with the Orders made on 5 February 2001 and 29 March 2001" and they consequently operated the Unless Order, after considering their powers under the Rules.

[14]The Appellant before us has put his case in this way. First he sought an adjournment, which he has apparently previously sought. When we explored with him the basis for an application for an adjournment, and why he needed one, his explanation was as follows: that his computer had broken down before Christmas and that it had been mended on 19 January, and consequently, he had not been able in two respects to do that which he would have wanted to have done: first that he had not been able to get off the computer, at any rate before 19 January, the copies which he had scanned on to the computer of the Employment Tribunals Rules; secondly, that he had not been in a position to prepare a Skeleton Argument.

[15]We were entirely satisfied that that was no ground for an adjournment of today's hearing from today. We offered Mr Metanie an opportunity of half an hour to look at the Rules in case that would assist him, although both at that stage, and indeed now, after full consideration of the appeal, we do not see how detailed consideration of the Rules would have further assisted him, clearly, fully able to argue his case, as he has proved to be, for the last hour and a half; but in any event, although we were prepared to extend that short assistance to him, we do not see any reason why he has not been able to obtain copies of the Rules, otherwise than through his computer before 19 January, and from his resurrected computer since 19 January. Further although, ideally, it is always helpful to have a Skeleton, Mr Metanie put his case forward with fluency, before us today, and we do not feel in any way disadvantaged by not having a Skeleton, having given him full opportunity to make oral submissions before us. In any event, there has been plenty of time to prepare any Skeleton required since 19 January. Consequently, we proceeded with the hearing.

[16]His case has been that by reference to what he supplied to the Respondents, he did not fail to comply with the Orders of, in particular, Mr Hossain QC. There was no appeal against the Orders, either of Mr Simpson, or of Mr Hossain QC, and so those Orders stood unchallenged, and therefore the only issue before us is as to whether the Tribunal erred in their consideration and conclusion that he had failed to comply with the Unless Order made by Mr Hossain QC, whatever he may have earlier supplied and certainly nothing we have seen, for the reasons that we have given earlier in our summary of the history, added to the position in any way. The only issue before the Tribunal, apart from the consideration of their discretion, was whether the document of 18 April complied with the Order that he should give full Particulars, in accordance with paragraphs 1 and 2 of Mr Simpson's Order.

[17]It is clear from what we have recited that he did not set out any case which explained his allegations of unfair dismissal. His assertion was limited to failure to supply the terms and conditions of employment, and he certainly failed to give any Particulars of a breach of contract, apart from the assertion of the failure to supply terms and conditions, which, as we have indicated, he has already made the subject of a separate claim.

[18]In those circumstances, we can see no ground to challenge the conclusions or findings, or the exercise of the discretion by the Tribunal of which Mr Davey was the Chairman on 30 May 2001. Further, there was, in any event, an application by the Appellant for a review, which the Chairman considered, and rejected, by a document sent to the parties on 3 July, by which he had yet a further opportunity to seek either any reconsideration of the question of Further and Better Particulars, and if necessary, to supply any more Further and Better Particulars, and certainly to make any further point about the alleged interrelationship between the supply of Particulars and the fact that he did not receive the employee's handbook until 18 April. In those circumstances, we dismiss his appeal as unarguable, in relation to 30 May, with regard to the striking out of his claims under 1(b)(c) and (d) and do not permit it to proceed to a full hearing.

[19]His second ground of complaint related to the refusal on 3 July of his application, as it was described in a document dated 13 June, for an extension of time to amend the Originating Applications. Insofar as that document purported to add additional claims, for example repudiatory breach of contract in respect of dealing in good faith, the Tribunal concluded that they were way out of time, and inappropriate, in the light of authority, to add to a claim which now consisted, in the light of the Order of 30 May, simply of a case, both under the first application as to the inappropriate treatment of temporary employees, and in relation to the second application: a racial discrimination case.

[20]Insofar as the document sought, as Mr Metanie, the Appellant, has frankly admitted before us today, to resurrect the claims which had been dismissed on 30 May, that plainly would be inappropriate, in any event, given the fact that there had been a strike-out. Insofar as what he is implicitly saying is that the document in some way supplied, out of time, the Further and Better Particulars which he had failed to provide in time, we are satisfied that that document which is in very short form, does not begin, still, to comply with the Orders of Mr Simpson of 5 February 2001, and we dismiss the proposed appeal in respect of that amendment.

[21]The third ground of complaint by Mr Metanie, the Appellant, is related to a separate matter. It relates to his grounds of appeal against an Order of a yet different Chairman, Mr Cowling, sitting at Brighton on 27 July 2001. The history of this is that he had been given permission on 30 May to take the unusual course of tape recording the hearing of 30 May, on terms that he supplied a copy of the recordings to the Respondents at their expense, and what had occurred is that he had, apparently, made copies of the tape recordings, but that he had not been prepared to deliver them to the Respondents, save that by a letter dated 7 June, he wrote as follows to the two sets of solicitors:

"I have made copies of the recordings I have made at the hearing on 30.05.01 …..and I would despatch them within 3 days of receiving the payment for the copies as ordered by Chairman, Mr Davey. I can assure you that they are very good. I am sure you would appreciate them. The schedule for time spent is as follows:"

And then he alleges that he has spent twenty hours in copying the tapes. He has told us that he did so by transferring them on to a minidisc. He continued:

"I claim as hourly rate of pay the hourly rate charged by all the legal representatives acting on your behalf."

He then adds together the cost of Counsel and solicitor for the two Respondents, he says that:

"makes a total of £440/hr multiplied by 20 makes £8800. Do not cheat because the Chairman Mr Davey already ordered you to send me a schedule of costs!"

[22]If that was intended as a poor joke it certainly did not remain so, because it appears that the Appellant stood by the contents of that letter, and did not produce the tapes to the Respondents, notwithstanding the Order that he should do so by Mr Davey, and up to and including the hearing before Mr Cowling on 27 July. In the course of the hearing before Mr Cowling, he said that he would reduce the fee that he was seeking by 50% to £4400. The conclusion by Mr Cowling, the Chairman, was that the Applicant had acted in bad faith in refusing to release the tapes in exchange for payment of his reasonable costs, and he concluded that he would not give leave to record that day's proceedings, and then he made the Order as follows:

"2 The Applicant has been refused leave to make a tape recording of the hearing today. 3. The Applicant has failed to comply with the Order made on 30 May 2001 to supply at the request of the Respondents a copy of the recordings made previously at their request. 4. As a result of the Applicant's failure to comply with the Order made on 30 May 2001, both Respondents have unnecessarily incurred additional costs and the Applicant is ordered to pay to the First Respondent £50.00 and to the Second Respondent £25.00 in satisfaction of their reasonable costs. 5. Within 7 days of the date of this hearing, the Applicant is ordered to send the disk or disks used to record the proceedings" and then a description as to the way he should send them is set out "on their undertaking to make copies at their own expense and to return the original disks to the Applicant within 14 days of the receipt of the disks from the Applicant."

And then paragraph 6 of the Order read as follows:

"6. At this hearing, the Applicant has indicated that he does not intend to comply with the Order to disclose the discs to the Respondents and, until he does so, these proceedings are stayed."

[23]The appeal is brought by the Appellant against that Order and he challenges paragraph 2 - the refusal to give leave to make a tape recording of the hearing on 27 July - paragraph 4, the costs Order and paragraph 5, the order that he must deliver up the original recordings on the basis of the solicitor's undertaking to makes copies at their own expense and return them within fourteen days, and, of course, the corresponding stay.

[24]We are entirely clear that the Tribunal acted not only well within their discretion but entirely rightly. We find it extraordinary that, the unusual discretion having been exercised to allow the Appellant to make copies of the tape recordings on 30 May, he acted in the way he did which the Tribunal, in our judgment, understandably described as bad faith, and failed to deliver up the disks save upon wholly unreasonable conditions.

[25]We conclude that the Order made by the Tribunal was fair, just and correct. We would not have, in any event, have allowed the appeal to be pursued in respect either of the refusal of leave to make a tape recording on 30 May, which is water well under the bridge, and in any event was perfectly justified, or certainly in respect of the Order for delivery up and a stay and for costs, for the reasons which are apparent from what we have stated. However, in any event, this appeal has become wholly academic because we understand from the Appellant that, albeit it was way out of time for compliance with the Order of Mr Cowling that there be delivery within seven days, in fact there was delivery in December of last year to the solicitors for the Respondents of the tapes. That means that the stay, which was only imposed until compliance with the Order, was lifted, and yet it appears that the Appellant has still taken no further steps to reactivate the proceedings, as he could have done, rather than bring before this Court what we consider to be a wholly unmeritorious appeal in relation to the Order of 30 May. Had he complied with the Order within seven days, the stay would have been immediately lifted and it was almost certain that his action could have been heard by now in the Brighton Employment Tribunal.

[26]His case remains to be tried in respect of his race claim and his temporary staff claim. The other three claims that he made remain struck out, but the sooner the action is brought on for hearing and tried, the better for all concerned. In these circumstances, this application to continue the appeal is dismissed and the appeal will not be permitted to proceed in the Employment Appeal Tribunal.