MISS M FRASER v LONDON BOROUGH OF RICHMOND UPON THAMES [2003] UKEAT 0888_02_1809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0888_02_1809Case No Appeal No. EAT/0888/02/DA EAT/0069/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M FRASERAPPELLANTLONDON BOROUGH OF RICHMOND UPON THAMESRESPONDENT
Before
His Honour Judge J McMullenDate 18 September 2003
[1]APPEARANCES For the Appellant MISS M FRASER THE APPELLANT IN PERSON For the Respondent MR A HILLIER QC (of Counsel) Instructed By: London Borough of Richmond Upon Thames Legal Services Civic Centre 44 York Street Twickenham TW1 3BZ JUDGE J McMULLEN QC : An application has been made to me today following a decision of the Registrar that a hearing should take place because the Applicant has failed to comply with directions given by the EAT.[2]The case arises from a decision of an Employment Tribunal sitting at London (South), Chairman Mr M. Houghton, with Mr Lowe and Mrs West in 2002. It was the subject of a review, which was refused, which took place almost a year later. The Applicant has represented herself throughout. The Respondent has been represented by Mr Andrew Hillier QC.[3]The issues before the Employment Tribunal were set out in paragraph 2 of its decision. The Tribunal found against the Applicant. It was noted that she was a probationer in the legal function of the Respondent and is a graduate, who holds the CPE qualification which is the equivalent of the academic stage of legal training. She told me that she had obtained that by doing a part-time course at Thames Valley University.[4]The career of the Applicant at the Respondent lasted four or five months. Although the Applicant has represented herself, she has received advice from Mr Tony Pullen, barrister, a very experienced employment lawyer at Hammersmith Law Centre, the substance of whose advice has been made known at today's hearing. One result of it is that a claim which was allowed to be proceeded with is not now to be advanced by the Applicant and thus it is dismissed. That is what is broadly described as "the contract claim".[5]The Applicant's complaints about the Tribunal decision were analysed and summarised at an EAT hearing conducted by Mr Recorder Dutton QC with Mr Manners and Ms Switzer on 28 February 2003. That hearing had followed a decision by a judge of the EAT that there should be no full hearing, but this matter should be set down for a preliminary hearing. The three-person EAT, therefore, considered the Applicant's appeal and made extremely firm directions about its further conduct, dismissing large numbers of the Applicant's grounds of appeal.[6]The EAT was critical of the Applicant's documentation: the Notice of Appeal is long and rambles and does not clearly identify the grounds, said the Recorder. Full account was taken of the difficulties she faced as a litigant in person. The EAT decided that, leaving aside the points which were hopeless, only two points would proceed. These were what have been described as "the contract point" and "the procedure or bias point". Pursuant to that judgment, firm directions were given which required a Notice of Appeal in succinct form and an affidavit to be sworn about the procedure. In default of full compliance with all of the directions the appeal would be dismissed: see paragraph 26 of the EAT's judgment.[7]A number of documents was submitted, pursuant to that direction, but on 4 April 2003 the Registrar decided that there had not been compliance and gave the Applicant 14 days to put matters right, otherwise an application to dismiss the appeal, as advanced by the Respondent, would be put before a judge. A number of documents has cascaded upon the EAT as a result of these orders. They are not sufficient to satisfy the Respondent for the application is duly made and has come on before me.[8]The arguments can be divided into two.(1) In their present form the collection of documents fail to meet the specific directions of the EAT.(2) If that fails then an analytic approach to the document known as "the Amended Appeal" yields that only two points can correctly be described as having been fully particularised. It is conceded that, subject to point (1), they meet the EAT's directions.[9]I reject the first submission. I accept that orders of the EAT, particularly when tailor-made to a particular appeal must be followed to the letter. This direction carried very important warnings to the Applicant about failure to comply and ultimately about failure to convince an EAT of her point on bias.[10]The documentation which has been adduced creates a major difficulty for the relevant actors in this drama. Because an allegation of bias has been made against the Chairman, and it is particularised against him and not against the Tribunal, he of course will have to deal with it. It will be open to him or to the EAT to ask for the Members' comments, for as I have pointed out to the Applicant, the Members are judicial officers who can out-vote the Chairman and certainly would not be doing their duty if they stood by whilst a Chairman committed abuses of procedure, or appeared to be biased or was biased. I have grave doubt that even experienced members of an Employment Tribunal would be able to understand the serious allegations which the Applicant attempts to make amongst the documentation she has produced. I also have my doubts about the management of this case before the Employment Appeal Tribunal, if the matter goes that far. I am, of course, concerned that there are other people involved here, not the corporate body of Richmond Council, but the individual officers who are engaged in these proceedings and who may have a comment to make about the Applicant's allegations of bias.[11]The approach I take is informed by the following principles. At first instance a Tribunal Chairman would be slow to strike out a Notice of Appearance or an Originating Applicant, or a part, if there was still an opportunity for a fair trial to be held: see National Grid v Virdee 1992 IRLR 555 EAT. Slightly different considerations apply on appeal and yet it is still important that a fair hearing within manageable confines is made available on appeal. At the moment I have grave doubts about that occurring, because of the distractions that there are in the paperwork here. It also seems to me that the step of a total strike-out is a draconian measure. Draco's shortlived magistracy in Athens should not be revived and a draconian measure should not be relied upon unless Parliament requires it. I am not driven to take severe measures by what I have seen.[12]It seems to me, therefore, that the Respondent's first submission fails. I reject it after considerable thought, because I am impressed by the major difficulties which a Tribunal and an EAT would have in dealing with the Applicant's case as currently organised. I then turn to the second.[13]I accept wholly the argument addressed to me by Mr Hillier in this part of his Skeleton Argument, that is, I accept his step-by-step approach to the Amended Appeal for the reasons which he gives. It follows that I will strike-out all of the amended appeal, apart from the passage which begins at paragraphs 5(a) and (b) as to which the concession I noted above applies. That means that there are two allegations to be made against the Chairman. In addition, the argument addressed by Mr Hillier on point 5(c) is it seems answered, as a matter of case management and simple commonsense, by a letter dated 14 January 2003 in which the Chairman says this:
"So far as I and the members of the Tribunal are aware the Appellant had not prepared any written closing submissions. The Appellant may have based her oral submissions (of which I took a full note) on her own notes, but no written document was handed to the Tribunal and no indication given by the Appellant that she wished to do so."
[14]Thus, for that reason, I accept the argument addressed by Mr Hillier upon that point, in paragraph 5(c).[15]The contract point set out in the Amended Appeal has, as I have indicated, already been dismissed, and thus the next stage of this appeal will focus only of paragraphs 5(a) and (b). In order to take a pragmatic approach, these two paragraphs will be taken as the Applicant's case, by way of affidavit and Notice of Appeal, and will form the sole material upon which this appeal is based and this much trimmed appeal will be sent to the Chairman for his comments and he may seek the comments of the two Members. When they are obtained they will come back to me and I will invite both the parties to make submissions on paper and I will give further directions, on paper.[16]It will, of course, be open to the Respondent to make submissions and, if necessary and so advised, produce an affidavit on those two points.