MR L HASAN v (1) THE BRITISH BROADCASTING CORPORATION (2) MR MCLELLAN (3) MR ANWAR (4) MR MUAWAD [2003] UKEAT 172_02_0602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 172_02_0602Case No Appeal No. EAT/172/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L HASANAPPELLANT(1) THE BRITISH BROADCASTING CORPORATION (2) MR MCLELLAN (3) MR ANWAR (4) MR MUAWADRESPONDENTS
Before
Mr Justice BurtonDate 6 February 2003
[1]APPEARANCES For the Appellant MISS HELEN EVANS (of Counsel) Free Representation Unit Peer House Verulam Street London WC1X For the Respondents MISS KATE GALLAFENT (of Counsel) Instructed By: BBC Litigation Dept BBC White City 201 Wood Lane London W12 7TS MR JUSTICE BURTON (PRESIDENT) : This is an appeal from the decision of the Employment Tribunal by the Chairman, Mr Purse, sitting alone, at London Central on 4 December 2001, that the application by the Appellant, Mr Hasan, against the British Broadcasting Corporation and other named Respondents, based on race discrimination and victimisation, be struck out for failure to comply with an Order of the Tribunal dated 6 September 2001.[2]The relevant rules of the Employment Tribunal, which have been in consideration before us today are, of course, contained in the Employment Tribunals Constitution and Rules of Procedure Regulations 2001 , Schedule 1. The rule under which the Tribunal acted to strike out the claim is Rule 4. Under Rule 4, which is the case management provision, by virtue of sub-rule (1):
"(1) A tribunal may, at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate."
And, by Rule 4(8):
"(8) If [such] a requirement ... is not complied with, the tribunal - (a) ... (b) before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, the notice of appearance."
There is, however, the provision that:
"A tribunal shall not exercise its powers under this paragraph unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so, or the party has been given an opportunity to show cause orally why the powers conferred by this paragraph should not be exercised."
[3]Attention has also been drawn by Miss Evans of Counsel, instructed by the Free Representation Unit to act today on behalf of the Appellant, to the provisions of Rule 15, whereby under sub-rule (1):
"15(1) subject to the provisions of these rules, a tribunal may regulate its own procedure."
And, by Rule 15(2)(c):
"15(2) A tribunal may (a) ... (b)... (c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious."
Sub-rule (3) provides as follows:
"15(3) Before making an order under sub-paragraph (c) ... of paragraph (2) 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; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
[4]Part of the submission before us today by Miss Evans, on behalf of the Appellant, is that the Tribunal ought to have exercised its power by reference to Rule 15(2)(c), rather than by reference to Rule 4(8).[5]The principles underlying Rule 4 are plainly analogous to the provisions in the High Court under the CPR for striking-out for failure to comply with Court Orders, but in any event there has been consideration of when to operate the power to strike out in a number of decisions, and the one to which reference has been made to us today by Miss Evans is De Keyser Ltd v Wilson [2001] IRLR 324 . The conclusion in that case was that operation of this rule which is, of course, directed in essence against the conduct of a party in failing to comply with an Order, is appropriate where there had been deliberate disobedience, or deliberate failure to perform an Order of the Court; but that in a case not involving deliberate disobedience or failure to perform an order, an important issue in the exercise of the discretion of the Tribunal as to whether to strike out the case would be whether there was prejudice to the other party and, in particular, whether a fair trial of the case was possible.[6]The central issue in De Keyser was whether a fair trial was still possible, because that case related to failure to comply with disclosure of documents, and plainly that is a particular example of where strike-out is being considered. But a fair trial of a case depends, above all, upon both the Respondents and, in particular, the Tribunal, knowing in advance of the hearing, and certainly by the time of the hearing, what case is being tried; and it is only when it is known what case is bring tried, and what the nature of the case is, that such matters as disclosure of documents and the preparation and service of witness statements, quite apart from the operation and hearing of the trial itself, can be planned and prepared. It is for that reason that the Tribunal has the power to order, whether on the application of a party or otherwise, particulars of an unparticularised case, and this has two purposes: one is to see whether the Tribunal has jurisdiction to try the matter at all, and, second, finding out what, as we have said, the issues, if any, in the case are going to be. In this case the Originating Application by the Appellant was issued on 14 June 2001, and it read as follows, in material part:
"Box 1 Please give the type of complaint you want the tribunal to decide: Answer: Racial Discrimination Victimisation Unfair Procedure."
Under box 7, it said:
"Please give the number of normal basic hours worked each week. Answer: I have just did an assessment."
Under box 9, it said:
"If your complaint is not about dismissal, please give the date when the matter you are complaining about took place: Answer: 22 – 25 / 5 /01."
Box 11, providing for details of the complaint, reads as follows:
"I ... believe that the organisation and people above have committed an unlawful act (Racial Discrimination, Victimisation and Unfair Procedure) against my assessment for the position of Producer/Journalist at the BBC World Service (Arabic Service). The assessment was on 22-25/5/01."
[7]It is quite plain that the case there set out does not begin to disclose a case of racial discrimination; it simply asserts that there has been some unparticularised act committed. The response in the IT3, the grounds of resistance by the BBC, said in paragraph 4, after a general denial in paragraph 3:
"4 The only particulars supplied with the IT1 is a letter of 14 June 2001 which is asking the BBC for information."
A copy of that letter is in the file. Paragraph 4 continues:
"It is this information on which, presumably, Mr Hasan will be able to decide whether or not there has been any discrimination. In that sense the claim appears to be rather premature. The Applicant is asked to provide full particulars of all the allegations of his claim upon receipt of which the Respondents will answer further."
[8]Apart from putting in their IT3, the BBC did, in fact, respond to the letter of 14 June, namely by letter dated 9 July. They gave information as to who had marked the papers, a Mr Hassan Muawad and Mr Mostafa Anwar, and they became joined as additional Respondents to the application. They indicated that the papers were marked with a number only appearing on the paper, and no name. They enclosed copies of the Appellant's marked test papers, together with the overall assessment sheet, which indicated the marks awarded, and they gave information about three other people who were assessed on the same day as him, and they gave the details of their marks, and all of them also failed the test. They also indicated that there were thirty-two other applicants in the same group as himself, and they enclosed details of their results, as well as his own.[9]A further letter of 30 July, a detailed letter, no doubt, from the Appellant, although we have not seen that letter, was responded to on 8 August by the BBC, and, insofar as the answers had not already been given in the previous letter, they answered further questions. They were asked for the dates of all the assessments that had been done for the thirty-two applicants in question. They answered further questions about the three who had been assessed on the same day, and they then gave information as to thirteen people who had been interviewed, and recruited for the position in 2001. Those thirteen, according to my understanding of this letter, and, certainly, it has been so confirmed today on instructions by Miss Gallafent of Counsel, were thirteen who had passed the assessment and gone on to interview. But, if that is not right, it does not, for the purposes of this appeal matter; certainly that is the way the letter reads, but whether it is right or not, the letter importantly concluded:
"I should be grateful if you would now let the Respondents have the particulars of your case. They are concerned and surprised that you have issued a complaint in relation to your application in this instance because you commented to those invigilating the tests that you had not answered the paper properly, as you misunderstood one part and did not finish another."
His marks in the translation paper, which were supplied, as part of the thirty-two in question, were not high.[10]He did not respond to that further information supplied in the letter of 8 August, and did not, in particular, do what they asked him to do, namely, now in possession, as he was, of two detailed letters providing the information that he had sought, particularise any case he might have, the existence of which, of course, they denied. Not surprisingly, therefore, there was, at the next hearing of the matter for directions on 6 September 2001, an Order made for particulars. That was contained in a letter subsequently sent out by the Tribunal of 26 September, and it recites that, on hearing the parties at a hearing on Thursday, 6 September 2001, the Chairman had directed that the case would not be combined with another case, which the Appellant had, apparently, brought for race discrimination, and that he was to furnish to the Respondent, in writing, not later than Friday 28 September, full particulars of his complaints outlined in the Originating Application dated 14 June 2001, and a copy of those particulars was to be sent to the Tribunal by the same date. A request by the Applicant to inspect examination papers completed by candidates to a recruitment round organised by the Respondent was not granted; but the Applicant was to be at liberty to renew his request at a later date, provided(i) that he had sufficiently particularised, in the course of compliance with the Order for particulars, those specific candidates with whom he wished to be compared, and(ii) that it would be relevant to the issues before the Tribunal to inspect the examination papers in question.[11]Accompanying that notification of the Order, there was a separate document setting out, in terms, the warning that "Failure to comply with Orders for Further and Better Particulars may result in the Originating Application being struck out in whole or in part before or at the hearing and the proceedings dismissed". Thus this was the notice, in the terms of Rule 4(8).[12]As it happens, there was a virtual crossing of that letter with the letter of 25 September, which the Appellant sent, no doubt intended to arrive before 28 September, which was the date by which the Tribunal had ordered him to serve his particulars. That letter of 25 September, the Appellant has, both then, and consistently and repeatedly thereafter, insisted were the further and better particulars of his case, pursuant to the Order of 6 September. It reads as follows: "Following to the chairman's instructions on 6 September 2001, I enclose the further particulars of my case against the BBC and others:(1) On 1 March 2001, I sent my CV to the BBC World Service (Recruitment Department) looking for a job as a journalist, producer, editor, or translator.(2) On 27 April 2001, unexpectedly, I received a letter from the BBC saying that I was shortlisted and invited to sit an assessment on 22 May 2001.(3) On 2 May, I phoned the BBC (Recruitment Department) to confirm that I was interested in sitting that assessment.(4) On 22 May 2001, I did attend the assessment, was supposed to be informed about the result before 25 May.(5) On 24 May, I phoned the Recruitment Department (Miss Suzann Luu), and have been told that I was unsuccessful in that assessment. I asked for further details about the procedures by which the assessment had been done, and have been told that it was going to be sent to me in the next few days.(6) On 1 June 2001, as I did not received anything from the BBC, I phoned the Recruitment Department, and Miss Lu said to me that the further details I asked for were going to be signed by the examiner, and sent to me.(7) On 14 June 2001, after waiting for 21 days for the further details, and receiving nothing from the BBC, I sent an application to the Employment Tribunal." [and that, of course, was the IT1][13]It is apparent, even on the most charitable reading of that letter, that it does not begin to be the provision of particulars of a case of race discrimination, either taken together with the words in the IT1, which we have recited above, or otherwise, and Miss Evans who has appeared today, has not been able to say that it does comply, or that it is adequate particulars of the case.[14]The ground of appeal in the amended Notice of Appeal, which is now the basis on which this appeal is brought forward, in asserting that the Tribunal should have considered the matter by reference to Rule 15, rather than Rule 4, states:
"It is contended that the inadequacy of the particulars actually provided in the letter dated 25.9.01 goes not to the Appellant's conduct but to the nature of the case he put forward in that letter. Where particulars are so inadequate as to demonstrate no case, the specific provisions in rule 15 for dealing with misconceived cases are appropriate. The tribunal failed to address or comply with rule 15."
[15]That letter having been sent, the next event was a letter of 11 October 2001, from the Employment Tribunal to the Appellant, signed on behalf of the Regional Secretary of Tribunals, and it said:
"I refer to the Tribunal's Order for full particulars (see paragraph 2 of the Tribunal's directions letter) dated 26 September 2001. A Chairman of the Tribunals has asked me to write to you. Under power conferred by Rule 4(8) of the Employment Tribunals Rulers of Procedure 2001, the Chairman is considering whether to strike out the whole or part of the Originating Application for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing on or before 25 October 2001."
[16]There was a separate letter which said that, further to the Appellant's telephone conversation, another lady on behalf of the Regional Secretary, had been asked to reply, as she did, and inform the Appellant that his request for an Order for disclosure had been refused, because he had not complied with the Order for particulars.[17]A letter of 15 October was then sent by the Appellant in response to, inter alia, those two letters in which he said that he was writing to clarify that, as far as he was concerned, he had complied with the Order of 26 September 2001, on the same date when he handed his further particulars and got a receipt from the Tribunal:
"I would be grateful if you give me further clarifications about what I have not complied yet."
It is plain that he is there saying that his compliance was the 25 September letter. Then, so far as the disclosure application is concerned, he said:
"I am kindly asking you to reconsider my request for an order to the Respondents to provide me with the thirteen applicants' papers who in spite of their failure in the assessment, had been interviewed and four of them have been recruited so far."
It appears that that was a misunderstanding of the letter, certainly on its face, to which we have earlier referred, ie that the thirteen had failed in the assessment.[18]There was then an unfortunate letter of 22 October 2001, from the same lady who had sent the letter of 12 October, in which she said that the Chairman had asked her to remind the Appellant that he had not particularised the candidates with whom he wished to be compared. That, of course, was in relation to the disclosure request. But then it went on:
"Furthermore, the Employment Tribunals does not have any letter from you giving Further and Better Particulars dated 26 September 2001."
[19]It is right, of course, that the particulars were not dated 26 September 2001, which might, perhaps, have been the understanding of the Tribunal, from a quick reading of the Appellant's letter of 15 October, when he referred to "on the same date", but the letter continues: "or any other date".[20]It is quite apparent that the Tribunal were ignoring, or forgetting, the fact that, in fact, they had received the letter of 25 September, and that lack of recollection or understanding on the part of the Tribunal, was put right by the Appellant in his letter of 24 October. He said: "I do appreciate the patience you have shown with my case, as you understand that I am not a solicitor and do not have a solicitor." [That I assume means, not only in relation to the instant case, but also the other case to which reference had been made].[21]He said he was confused about what they meant, by not sending the further particulars which the Respondents had asked for, because he had sent the letter of 25 September, and then, as for the candidates' papers, he repeated that his understanding, or case, was that Ms Youngson of the Respondents had acknowledged, in her letter of 8 August, that there were thirteen applicants who had been interviewed in spite of their failure in the assessment "as the test results show"; and that was a reference to the test results of the thirty-two who had failed. On that basis he was asking for disclosure in relation to the thirteen candidates, and also the papers of the three candidates who had attended with him on the assessment, and of the thirty-two candidates, which, on this assumption, cannot, even on his own case, include the thirteen.[22]That was where the matter was left in terms of his response to a case that he had to meet that he had failed to comply with the Order of 25 September, coupled with his continued application for disclosure which he was unable, of course, to pursue because of the express terms of the order that he could not have further disclosure unless and until he complied with the Order for particulars.[23]That was the state of things on 4 December. No more was produced by way of even an attempt to give particulars of the claim by the Appellant, but he rested his case, as will be seen, on the adequacy of the letter of 25 September, and the Tribunal's decision read, in material part, having set out the Originating Application and the Order of 6 September, as follows:
"5 Mr Hasan purported to comply with the Tribunal's order in a letter dated 25 September 2001. However, that letter simply set out a series of steps taken in relation to his consideration for a post with the Respondent. It contains no hint of the grounds on which Mr Hasan relied as racial discrimination, victimisation or, in so far as there is a legal right in relation to it, unfair procedure. It is far from being compliance with the order. 6 Mr Hasan said that this is the same as he did in a previous case. Even if that is correct, I do not consider that it provides a reason for a total failure to provide adequate particulars as directed in this case. Moreover, his failure is not excused by lack of legal expertise. Accordingly, I order that this case be struck out for failure to comply with an order of the Tribunal."
[24]It is clear, from that decision, that there was no longer any misunderstanding on the part of the Tribunal about non-receipt of the 25 September letter. It is equally clear that they understood, because there is reference to it, that the Appellant had been seeking to pursue his application for further disclosure. The Order is based firmly upon the fact that he was asserting that his 25 September letter was adequate, which it plainly was not, that he was standing on the adequacy of that letter, and was not seeking to give any further or better attempt at particulars of his case, and that the failure to comply with the Order constituted by the production of a letter which was so far away from compliance was, particularly in the light of the warning given, sufficient to justify a strike-out.[25]The Appellant sought a review of that decision, and he set out a further detailed case in a document annexed to his letter of 15 January 2002. The document is a lengthy one-page document which is repetitive, and the respect in which it is repetitive is his repeated statement that the letter of 25 September was an adequate particularisation of his case, and a complaint, perfectly understandable, about the original position of the Tribunal that they had not received that letter. He plainly, once again, and firmly and determinedly, stood on the adequacy of his letter of 25 September, as amounting to a case that there had been no failure by him to comply with the order of 6 September.[26]The decision of the Chairman is given in a document dated 14 February 2002. It recites the decision on 4 December, and the application for a review by the Appellant, and he sets out, in paragraph 2:
"2 In his Application for a Review Mr Hasan argues that he did comply with the Tribunal's Order for Particulars dated 6 September 2001 by his letter dated 25 September 2001. He refers to a letter from the Tribunal dated 22 October 2001 in which he was reminded that he had not particularised the candidates with whom he wished to be compared nor provided further and better particulars."
That letter, of course, was in response to his letter of 15 October, and the conclusion of the Chairman, having recited the power of review which the Tribunal has, is in (the second) paragraph 3:
"3 The letter of 25 September 2001 to which Mr Hasan refers in his Application for a Review was before me at the hearing on 4 December 2001. Indeed the issue of the adequacy of that letter as compliance with the order of 6 September was at the core of my decision. Nothing which Mr Hasan now says raises any fresh matter, or argument, on the adequacy of that letter as a means of compliance with the Order."
In those circumstances the Chairman dismissed the application for a review.[27]The appeal is now brought before us on two grounds; the second we have already referred to, and that is the case that inadequacy of particulars should be considered, not under Rule 4, but under Rule 15. The first basis of the appeal is that no reasonable Tribunal could have struck out the Originating Application under Rule 4(8) for non-compliance with the direction to provide full particulars, when the Appellant had in his letter dated 25 September 2001 understood himself to have complied with the Order, and that the Appellant had sought clarification on his non-compliance and had, in any event, provided sufficient particulars in the letters dated 15 and 22 October 2001, of which the Tribunal had allegedly failed to take account. It is thus an attack on the exercise of discretion by the Tribunal.[28]We have already indicated that it is plain from authorities and, indeed, even from that authority which Miss Evans herself referred to of De Keyser , that the power to strike out under Rule 4(8) is not limited to a deliberate failure to comply. However, in any event, there are many ways of deliberately failing to comply. One is deliberately taking no notice, and another is deliberately saying "I stand by a letter I have sent, and even though on any objective basis it would be said that it does not provide any of the particulars that I have been ordered to make, I believe it does, or at any rate believe that it was good enough; and I stand on it, and I stand on it notwithstanding being given notice that it was not considered adequate, being given notice that the Tribunal was considering striking out under Rule 4(8) and then having to face an application to strike out, and, having been struck out, putting forward an application for review, and having failed in the application for review, putting forward an appeal to the Employment Appeal Tribunal. I do not need to do anything other than stand on my letter of 25 September as allegedly further particularised by the letters of 15 and 24 October".[29]That can be characterised as being as much of a deliberate failure to comply, or at any rate a different kind of deliberate failure, as others. But in any event, even if it could not properly be seen as a deliberate failure to comply, but as a case in which there is a simple non-provision of the particulars, due to lack of understanding or lack of legal advice, at least until put right or having the matter explained by the Tribunal, the second limb then must be considered, namely on any basis the Tribunal was entitled to find, and rightly found in our judgment, that there was a failure to comply; and the second question, as to whether there can be a fair trial of the action, triggers in.[30]It appears to us that there is no inconsistency between the availability of powers under Rule 4 and under Rule 15. Rule 15 can be operated without the need for any failure to comply with an Order. Rule 4 can be operated without, and, indeed, notwithstanding the absence of, a conclusion that there is no meritorious case, and, indeed, sometimes notwithstanding that there is a meritorious case, if there has been appropriate conduct by a party. But the case here is one in which there has been both a failure to comply with an Order, and an inadequately formulated case, and as is so often the case, the very Order for the particulars, and the very non-compliance or inability to comply with that Order, highlights the absence of the case.[31]Even today, although we gave the opportunity for Mr Hasan to add his own words to that of his Counsel, no case is particularised, certainly none which we understand, orally or on paper. It is certainly sometimes the case, even at the eleventh hour, the fifty-ninth minute, where there is a strike-out, that on the day of the hearing before the Tribunal, a particularised case can be produced, and yet such was not the case here. Thus, on looking at an issue under Rule 15 on inadequate particulars, one is very often, and, indeed, is here, looking at a case under Rule 4(8), where the question as to whether there can be a fair trial arises for consideration, and where, as here, having considered the question of failure to comply, the Tribunal plainly also considered that the consequence of the failure to comply was a wholly inadequate and unparticularised case, which could not be properly dealt with, either by the Respondent, and thus to the Respondent's prejudice, or by the Court. It was an appropriate, indeed, a paradigm, case for a strike-out under Rule 4(8).[32]We are entirely satisfied that there was no inappropriate exercise of discretion by the Tribunal and that on looking, as we do, once again at what lay before the Tribunal, the exercise of their discretion was indeed entirely correct. Certainly, however, there is no basis for an appeal against the exercise of their discretion on either the two bases put forward, and we consequently dismiss it.