MR GILBERTO NUNEZ v VERITAS SOFTWARE LTD [2004] UKEAT 0020_04_1006

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0020_04_1006Case No Appeal No. UKEAT/0020/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR GILBERTO NUNEZAPPELLANTVERITAS SOFTWARE LTDRESPONDENT
Before
Mr Justice BeatsonDate 10 June 2004
[1]APPEARANCES For the Appellant MR W K D PERERA (Legal Assistant) Messrs Sara Solicitors Unit 90 Kingspark Business Centre 152-178 Kingston Road New Malden Surrey KT3 3ST For the Respondent MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Messrs Barlow Lyde & Gilbert Solicitors Beaufort House 15 St Botolph Street London EC3A 7JN SUMMARY Practice and Procedure Appeal against a refusal to review an order to strike out a disability discrimination claim (leaving an unfair dismissal claim to proceed) following non-compliance with order to give particulars of the claim. The grounds of appeal were; error(1) in ruling that no further information from the Respondent was required for the Appellant to comply with the order,(2) in failing to consider whether a fair trial could be conducted on the available evidence, and(3) refusing the application to review as having no reasonable prospect of success. Appeal dismissed; the information sought has still not been provided; no error of law was shown in the ET Chairman's case management decision. THE HONOURABLE MR JUSTICE BEATSON This is an appeal from the decision of the Chairman of an Employment Tribunal refusing an application to review his decision to strike out the Appellant's disability discrimination claim. The claim was struck out on 30 September 2003. The request for a review was made on 9 October and the refusal of the application for a review was made on 21 October.[2]The background is that the Appellant, Mr Nunez, was employed by Veritas Software Ltd as a Technical Support Engineer between 24 May 2000 and 31 July 2003. He filed a claim on 12 August 2003 alleging unfair dismissal and disability discrimination. On 18 August the Respondent asked for further and better particulars of the discrimination claim. The relevant letter asked for confirmation of the nature of Mr Nunez's alleged disability including the date on which he became disabled, details of any recovery he has made since he became disabled. It also requested details of any incident which Mr Nunez alleged took place on which he intended to rely at the hearing to claim that he suffered a detriment on the grounds of his disability, including the dates of such incidents, names of the company's employees involved and the particular detriment or loss he suffered. Thirdly, he was asked to confirm what advice he alleged the company's doctor had failed to follow, who had given this advice and by when he considered the advice should have been followed. That was in relation to paragraph 11 of his IT1. A further request in relation to that paragraph was to confirm details of the health conditions which he alleged had deteriorated. Finally, the Respondent asked for details of the recovery the Appellant had in view of the fact that he stated that the company had terminated his employment during his "recovering period".[3]The Respondent followed this letter with an application to the Tribunal seeking an order for further particulars. The Order was made on 28 August. On 5 September the Appellant's solicitors, Messrs Sara Solicitors, wrote a letter to the Respondent's solicitors stating that they accepted that there were issues which needed clarification but stating that they were unable to do so because "you [i.e. Veritas] have not disclosed all the relevant information". The information requested is set out in this letter which is signed by Mr Perera who appeared on behalf of Mr Nunez at this hearing.[4]Following that letter the Respondent wrote both to the Tribunal and to Messrs Sara Solicitors stating that they did not consider the provision of this information was necessary for Mr Nunez to comply with the Order and applying for the disability discrimination claim to be struck out.[5]On 18 September the Tribunal wrote to the Appellant inviting him to show cause as to why the claim should not be struck out and inviting reasons to be given for that by 26 September.[6]On 26 September the Appellant's representatives wrote to the Tribunal stating what the nature of the disability was, and enclosing two letters from his Neuropsychologist, Dr Baehr. Dr Baehr's letters were written to Dr Yarnley, the Respondent's Occupational Health Consultant. There were also two letters sent by Dr Yarnley to Ms Grant and Ms Rowe, members of the Respondent's Human Resources Department, which set out certain information about his condition and the background.[7]The claim was struck out on the grounds that the letter of 26 September did not amount to compliance with the Order of 28 August. As no cogent reasons had been given in answer to the Tribunal's letter of 18 September the disability discrimination claim was struck out, leaving the other claim for unfair dismissal to proceed in the usual way.[8]The grounds of appeal are, first, that the Tribunal erred on 18 September when it ruled, following a request by the Appellant, that compliance with the Order did not require that the Respondent's supply further information to the Appellant. Before me Mr Perera submitted that in a case of disability discrimination where an employer is dismissing a person known to have medical problems the employer is likely to know more about the disability and therefore there was an error in not providing this information. This submission, and the first ground of appeal seems to me to be without foundation. A person bringing a claim must formulate it and, if there is information relevant to that claim in the possession of the proposed defendant, the further information will be disclosed at the discovery stage. Notwithstanding the particular problems which were put as to the nature of mental incapacity and disorder, I do not consider that the Tribunal had been shown to have erred in any way in ruling that further information was not required for the Appellant to complete and supply the information specified.[9]The second ground of appeal is that the Tribunal erred in law in striking out the disability discrimination claim without considering whether a fair trial could be conducted on the evidence already made available. Mr Perera submitted that in substance the information provided in the letter of 26 September gave the information that was required, albeit not in the form requested. He relied on the statement in the decision of this Tribunal in Sanni v Smithkline Beecham Ltd (EAT/656/98) at paragraph 17 that although in that case:
"17. ….the appellant had still not answered each and every question the test for striking out is not whether each demand for particulars has been substantially met but whether the appellant had served, in this case two documents, coupled with his solicitor's letter … which could fairly be entitled 'particulars', made in good faith."
[10]Mr Perera submits that the information given enabled the trial to be conducted. He pointed me to the authorities stating that in discrimination cases the court should be particularly reluctant to strike out claims because of the fact-sensitivity of the claims, and submitted that in the cases which were struck out, there had been a much greater period of time. In the present case the claim was brought on 12 August and it was struck out 6 weeks later on 30 September.[11]He took me to the decisions in National Grid Company plc v Virdee [1992] IRLR 555, HM Prison Service v Dolby [2003] IRLR 694 , Jiad v Byford [2003] IRLR 232 , Anyanwu v South Bank Students' Union [2001] IRLR 305 and, as I have already indicated, Sanni v Smithkline Beecham Ltd . He submitted that the case of Medallion Holidays Ltd v Birch [1985] IRLR 406, on which the Respondents relied, was one in which, in any event, there had been extended time given for compliance, and that case, which had been considered in the Virdee case, concerned a very different factual scenario and a much longer period of time.[12]With regard to this issue, Mr Tatton-Brown submitted that the documentation supplied on 26 September did not provide the information that was requested. There was information about the nature of the disability but in particular there was no response to the question seeking details of incidents which were alleged to have taken place to show that there had been a detriment suffered on grounds of disability and the other matters on which information had been sought.[13]He submitted that the information sought as to the incidents was fundamental to the case. Without it the Respondent did not know the case he would have to meet and he relied on the different context in Waters v Commissioner of Police of the Metropolis [1997] IRLR 589 to the effect that specificity in making discrimination claims is important because the claims are easy to make and sometimes very difficult to refute; and charges of, in that case, it was race or sex discrimination that was referred to, but charges of discrimination whether race, sex or disability are hurtful and damaging.[14]The fact is that even the response that was given by those advising the Appellant on 16 November, some six weeks after the strike out decision and three weeks after the refusal to review the decision, do not provide the information requested as to the incidents and the dates and the names of the company employees. The information then provided was given in a very general way.[15]In these circumstances, notwithstanding that strike out decisions in discrimination cases are draconian, I have concluded that the Tribunal did not err in law in striking out the claim. At the date of the strike out the information had not been made available. The Respondent did not know what case he had to meet. There had been two opportunities in response to the order of the court on the show cause order to furnish the information. There had been previously an opportunity to seek an extension of time or to set aside the order, which had not been taken. Informality in the conduct of proceedings has costs. Here the Tribunal had exercised its case management powers, had served notice, had indicated what the consequences of non-compliance might be and, in the "show cause communication" on 18 September, provided the opportunity to show cause why the claim should not be struck out. It concluded that no cogent reasons had been given by those representing the Appellant.[16]The Respondent submits that in any event the cases cited by the Appellant do not support the propositions for which they are cited. In particular, apart from Sanni in which the individual had provided the further and better particulars within the time stated, the other cases were all cases in which there had been compliance with the relevant order by the time the decision to strike out was made. For the reasons I have given, particularly in relation to the second requirement, details of incidents, dates of incidents, names of employees, this was not so in this case. Accordingly the Tribunal, when it was considering whether to strike out, was in a different position to the Tribunals in those cases.[17]The third ground upon which the decision of the Tribunal is challenged is related to the second ground. It is whether the Tribunal erred in law in refusing the application to review because in its view there was no reasonable prospect of success.[18]Mr Perera, in both his helpful Skeleton Argument and his oral submissions, submitted that in considering whether to review the Tribunal erred in not considering whether there was a prospect of success in the discrimination claim. He submitted it was not entitled to go into that question because that was a question as to evidence and it was for that sort of reason that the cases had stated that strike outs should only very rarely be used in discrimination cases.[19]He submitted that the Tribunal erred because the reason the Appellant had not answered fully had been explained to the Tribunal in his firm's letter of 9 October. The Tribunal had erred in not appreciating the difficulties faced by the solicitors in answering questions relating to medical issues. The Tribunal had also erred in not granting the request for an extension of time, as had been granted in the Medallion Holidays case. He submitted that his letter of 26 September dealt sufficiently with the details of the case and he submitted that the Tribunal had the option of making a costs order and erred in moving straight to the most draconian order.[20]The exercise by the Tribunal of its power to review has to take account of the context in which the review is requested. The Respondent submits that there had been no adequate explanation of why the Appellant was unable to provide the further particulars, either by 26 September or by 9 October. The letters written on behalf of the Appellant suggested that in fact there had been full compliance with the order, but also sought an extension of time. The Respondent submits that the Appellants were given an opportunity following the order, following the "show case communication" and as part of the application for review. Since the information was not provided, the Appellant's argument that further time should have been given is unmeritorious.[21]In sum, this appeal seeks to reinstate the discrimination claim on the ground that, although it has still not been formulated with precision, since it is based on medical incapacity, the Employment Tribunal erred in not choosing an alternative mode of achieving the objective of ensuring that the Appellant formulated his claim sufficiently to enable the Respondent to meet it. I have concluded, for the reasons given, that this is not so. There is nothing particular about this type of discrimination claim that leads to a particular and different approach.[22]As far as prejudice is concerned, undoubtedly the loss of the ability to pursue the disability claim is prejudicial to the Appellant. But I accept Mr Tatton-Brown's submissions that it is not the case that the Appellant's ability to put his unfair dismissal case is prejudiced by this. The medical evidence is before the Tribunal and if relevant it can be considered.[23]I invited Mr Perera several times to formulate with precision what the prejudice was. He submitted that because the unfair dismissal and the disability cases were linked there was inevitable prejudice. But the two types of claim differ and I do not consider that the undoubted prejudice to the Appellant is greater than the prejudice to the Respondent of reinstating the claim. It said that the Respondent is a large company with resources. That does not meet the point put by Mr Tatton-Brown that the Respondent still does not know what the allegations are and would be put to the cost and inconvenience of an additional hearing to see whether the Appellant is in fact disabled.[24]For these reasons I dismiss this appeal against the strike out of the disability claim.