ROLLS ROYCE PLC v MR C M RIDDLE [2008] UKEAT 0044_07_1803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0044_07_1803Case No Appeal No. UKEAT/0044/07Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
ROLLS ROYCE PLCAPPELLANTMR C M RIDDLERESPONDENT
Before
Lady SmithDate 18 March 2008
[1]APPEARANCES For the Appellant MR A COWAN (Solicitor-Advocate) Instructed by: Messrs Simpson & Marwick WS Solicitors Albany House 58 Albany Street EDINBURGH EH1 3QR For the Respondent MR H GREIG (Solicitor) Messrs Rollo Davidson McFarlane Solicitors 67 Crossgate CUPAR KY15 5AS SUMMARY Practice and Procedure: Striking-out/dismissal Employment Tribunal declined to strike out claim where application made on ground that claim had not been actively pursued. Reason given was that there had not been "excessive delay". Appeal upheld; Tribunal had applied the wrong test. Further, Employment Appeal Tribunal satisfied that it had sufficient material before it to determine that the discretion available to the Tribunal was bound to have been exercised in favour of striking out the claim had the correct test been applied. THE HONOURABLE LADY SMITH Introduction This is an appeal against an order of an Employment Tribunal sitting at Edinburgh, following a Pre–Hearing Review on 9 July 2007 ("the PHR"), Chairman Ms J M Porter. The order was issued on 26 July 2007 and was in the following terms:
"It is the order of the Employment Tribunal to set this case down for full hearing on the merits of the matter."
[2]Before the Tribunal the Claimant represented himself and the Respondents were represented by Mr Cowan, solicitor-advocate, as they were before this Tribunal. The Claimant was represented by Mr Greig, solicitor, at the appeal hearing.[3]I will refer to parties as Claimant and Respondents. Background[4]The Claimant was dismissed on 25 August 2006. He lodged an application with the Employment Tribunal on 22 November 2006. On 18 January 2007, the Employment Tribunal issued a notice of Hearing for Monday 19 and Tuesday 20 March 2007. That was to be a full hearing. The Respondents prepared for it, prepared productions, sent lists of documents to the Claimant's representative in compliance with the relevant practice direction, and arranged for witnesses to attend. On 16 March 2007, the Claimant's representative, Mr Michael Clarke emailed the Tribunal requesting an adjournment "…due to the fact Mr Riddle has been found unfit to attend a hearing by his doctor due to mental health problems. Also parties representing Rolls Royce have not sent copies of documents required for the hearing."[5]The Tribunal responded in the following terms:
"Before agreeing to postpone the hearing a Chairman (Mr K J McGowan) asks that you provide a copy of the medical certificate by return."
[6]There was no response to that email on 16 March. That afternoon, parties were contacted by the Tribunal, by email. It advised that:
"…the hearing set down for Monday 19 th and Tuesday 20 th March 2007 will proceed."
[7]On 19 March , the Respondents, who were represented by Mr Cowan, were ready to proceed. They had brought their witnesses. They had brought their productions. There was, however, no appearance for the Claimant. There had been no contact from him or his representative. The Chairman asked her clerk to try to contact the Claimant and his representative. In her note issued after the hearing, dated 20 March 2007, she records the following:
"6. The Chairman asked the clerk to attempt to contact the claimant and his representative. There was no reply from the latter. His telephone just rang, eventually switching to voicemail. The clerk, Mrs Grant, called the claimant at home. His father answered, explained that his son was out and that he (i.e. the father) understood that the Hearing had been postponed. About ten minutes later the claimant called the Tribunal's office and spoke with Mrs Grant. He told her that he had sent a medical certificate to the Tribunal. It had been posted at about 2pm on Sunday afternoon and he explained he could not attend. He did not know where his representative was."
[8]It is, accordingly, evident that the Claimant was, at least on the morning of 19 March 2007, aware that the Hearing had not been postponed. The Claimant made no reference to there having been any problem with documents. No medical certificate had arrived in the Tribunal mail that morning. The Respondents sought dismissal. The Tribunal adjourned the hearing. The Chairman's note included:
"9. The Tribunal concluded that it would not grant the motion to dismiss, albeit that there appeared to be force in the arguments made by Mr Cowan. An explanation had been offered by the claimant. The Tribunal considered that it was not able to reach an informed view about that explanation. It did not therefore consider that it was appropriate to dismiss the claim there and then. However, the explanation it had received so far was not adequate and did not explain the apparent failure to comply with the chairman's directions issued on Friday. Nor did it explain why the claimant's representative did not afford the Tribunal the courtesy of appearing to explain the position and, if necessary, renew the motion for the postponement. 10. The Tribunal adjourned the Hearing but, rather than re-list, directed that the claimant be issued a (sic) Strike Out warning in accordance with Rule 18(7)(d) of the Employment Tribunals Rules of Procedure 2004. The claimant is therefore warned that the Chairman is considering striking out the claim on the ground that the claim has not been actively pursued. If the claimant wishes to oppose the strike out of his claim then he is required to put forward reasons. He has the right to attend a hearing (known as a Pre- Hearing Review – 'PHR') at which he may put these forward. If he wishes to attend a PHR, he must inform the Secretary of the Tribunal within 7 days of this Note. Alternatively, he may put forward such reasons in writing to (sic) within 7 days of this Note."
[9]Neither the Claimant nor his representative made any further contact with the Tribunal or the Respondents' representatives on or after 19 March 2007, until the Claimant's appearance at the PHR hereinafter referred to. Subsequent to the Hearing on 19 March, the Tribunal received a form Med3 signed by the Claimant's General Practitioner, which was in the following terms:
"I examined you today and advised you that you should refrain from work for four weeks. Diagnosis of your disorder causing absence from work: Depression."
The form was dated 13 March 2007. It did not state that the Claimant was not fit to attend the Tribunal Hearing.[10]The Claimant did not, within 7 days of the Chairman's note, contact the Secretary of Tribunal to indicate that he wished to attend the PHR nor did he put forward any reasons in writing as to why an order should not be made striking out his claim.[11]The PHR took place on 9 July 2007. The Claimant appeared and the Respondents were represented, again by Mr Cowan.[12]In the course of the appeal hearing, Mr Cowan indicated that at the PHR, the Claimant told the Chairman that he had in fact been fit to attend the hearing on 19 March 2007. That is not something that has been recorded by her in her note. After some pressing on the matter, Mr Greig accepted on behalf of the Claimant that he had indeed done so. It was not at all clear why it was so difficult to provide that confirmation particularly since the Claimant was present at this Tribunal for the appeal hearing.[13]I should also say something about the matter of provision of documents. As will have been noted from the above, the Claimant's representative gave, as his second reason for seeking an adjournment of the case, that the Respondents had failed to send copies of documents required for the hearing. However, it is evident that they had provided the Claimant's representative with an appropriate list of documents, a number of which would in any event have been in the Claimant's possession. No copies were requested from the Respondents (which they would have been happy to provide) nor was any application made to the Tribunal for an order that copies be provided. The Tribunal's Reasons[14]At the PHR, the Claimant appeared and represented himself. At paragraph 4 of its reasons, the Tribunal records his submissions:
"The claimant submitted that up until two weeks ago he had been represented by a Mr Clarke. On the 16 March he was advised by Mr Clarke that the hearing had been postponed due to the respondents' inability to produce a bundle of documents. Mr Clarke advised the claimant that an additional reason for the postponement was the claimant's medical condition and requested that the claimant post a medical certificate to the Tribunal Office."
[15]Mr Cowan, for the Respondents, had moved that the claim should be struck out in respect that the case had not been actively pursued. The medical certificate was late, it did not afford evidence of inability to attend a Tribunal hearing and the fact that the Claimant had posted the certificate was inconsistent with the Claimant's position that he had been advised by his representative that the case had already been adjourned.[16]At paragraph 5 of its reasons, the Tribunal explains why it decided not to strike out the claim:
"5. The Tribunal considered the submissions of parties on the issue of strike-out of the proceedings for non-attendance at the hearing on 19 March. In light of the submissions by the claimant the Tribunal decided that this was not a case where it could be said that there was excessive delay by the claimant in the proceedings and the application for strike-out should be refused."
Relevant Law[17]The Tribunal required to have regard to the fact that this was an application to strike out a claim that was brought under rule 18(7)(d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 regulations") which provides:
"(7) …...a chairman or tribunal may make a judgment or order- …………………… (d) striking out a claim which has not been actively pursued."
[18]Where a motion is made under this rule, the Tribunal requires, accordingly, to begin by asking itself whether the claimant has failed to actively pursue his claim. It would not usually be difficult to conclude that where a claimant has failed to appear at a full Hearing of which he has been notified, that amounts to a failure to actively pursue his claim. Then, the Tribunal requires to ask itself whether, taking account of the whole circumstances, it ought to exercise its discretion so as to strike out the claim. The rule provides for a general discretion to strike out if the tribunal is satisfied that there has been a failure to actively pursue a claim.[19]The rule is not drafted so as to fetter the discretion that is conferred by any particular considerations. However, as with all exercises of discretion, it will be important to take account of the whole facts and circumstances including the fact that strike out is the most serious of sanctions. That being so, as commented in Harvey , it is usually considered appropriate to take account of the principles laid down by the High Court in England prior to the introduction of the current Civil Procedure Rules. Those show an expectation that cases of failure to actively pursue a claim will fall into one of two categories. The first of these is where there has been "intentional and contumelious" default by the claimant and the second is where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent: Birkett v James [1977] 3WLR 38. The Birkett principles were applied in the Industrial Tribunal context in the case of Executors of Evans and anr v Metropolitan Police Authority [1992] IRLR 570.[20]These principles appear to have been identified because of there being justifiable cause for concern about two problems of which a failure to actively pursue a claim may be indicative. The first is that it is quite wrong for a claimant, notwithstanding that he has, by instituting a claim, started a process which he should realise affects the Employment Tribunal and the use of its resources, and affects the respondent, to fail to take reasonable steps to progress his claim in a manner that shows he has disrespect or contempt for the Tribunal and/or its procedures. In that event a question plainly arises as to whether, given such conduct, it is just to allow the claimant to continue to have access to the Tribunal for his claim. That is a distinct and different matter from the second problem which is that if a claimant has failed to actively pursue his claim to an inordinate and inexcusable extent so as to give rise to a risk of real prejudice to the respondent if the claim were to carry on, then a question arises as to whether or not there can still be fair trial and if there is doubt about that whether the claim should then be prevented from going any further.[21]The authorities to which I was referred in the course of appeal hearing concerned either cases which fell into the second of the above categories or strike out applications made under other subparagraphs of rule18(7) of the 2004 Regulations.[22]Reference should also be made to Regulation 27(5) of the 2004 Regulations. It provides:
"If a party fails to attend or to be represented ( for the purpose of conducting the party's case at the Hearing) at the time and place fixed for the Hearing the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the Hearing to a later date."
Mr Cowan advised that he had, on 19 March, moved his motion for dismissal under reference to that rule. It would have been open to the Tribunal to dismiss the claim when neither the claimant nor his representative appeared (see, for example: Roberts v Skelmersdale College [2004] IRLR 69 ). It was not under any obligation to make enquiry of the Claimant although in fact it did so. Having done so and having been given a response by the Claimant that was indicative of his position being that he was not fit to attend for medical reasons (which was the clear impression to be gained from his referring to having posted a medical certificate and to him not being able to attend), it is understandable that the Tribunal decided not to dismiss the claim there and then. It is, though, equally understandable that it plainly regarded the explanation received at that point as insufficient. Hence the warning that it quite properly gave, in accordance with the 2004 Rules, that the Claimant was at risk of his claim being struck out. The Appeal[23]For the Respondents, Mr Cowan submitted that the Tribunal had erred in applying the wrong test. The respondents' position was not that there had been excessive delay and the Tribunal was wrong to have treated that as the relevant test. Rather, there had been a failure to actively pursue the claim in circumstances which were indicative of intentional and contumelious default. Those circumstances were, in this case, such that the Tribunal would, had it not misapprehended the test in law, have struck out the claim. He referred, in support of his submission, to Harvey on Industrial Relations and Employment Law at paragraphs 657 and 658 where two distinct sets of circumstances are allowed for as being liable to arise in cases falling within rule 18(7)(d) of the 2004 Regulations.[24]Mr Cowan went through the factual history and submitted that on a proper analysis it amounted to conduct on the part of the Claimant that was intentional and contumelious. He was aware that a representation was made to the Tribunal on Friday 16 March that he was not fit to attend yet he knew that that was wrong. He may have been signed off work but he was fit to attend a Tribunal on his own admission. He did not, however, correct his representative about that. When he spoke to Mrs Grant at the Tribunal on Monday 19 March, he persisted in giving the impression to the Tribunal that he was not fit to attend. It was plain that there was more to what was happening than a simple case of a Claimant who was ill and unfit to attend a Tribunal hearing.[25]Mr Cowan anticipated that the Claimant might argue that before the Tribunal could have struck out his claim it would have to have been satisfied that a fair trial was not possible. If that was his position it was, he submitted, misconceived. Strike out was open to a Tribunal in circumstances where a fair trial was possible but there had been disobedience, failure to perform an order of the Court, wilful, deliberate or contumelious disobedience, as was evident from the discussion in the judgment of Mr Justice Lindsay (President) in the case of De Keyser v Wilson [2001] IRLR 324 at paragraph 25. He added that it should be recognised that the Claimant's conduct here meant that a two day full hearing had to be aborted. That meant inconvenience for the Tribunal, deprivation of its availability to other Tribunal users and had implications in terms of time, trouble, inconvenience and expense to the Respondents and their witnesses. The only conclusion was that the Claimant had acted in such a way that strike out would have been the inevitable conclusion had the Tribunal applied the correct test.[26]Mr Cowan submitted that these were circumstances in which it was open to this Tribunal to substitute its own decision. The test set out in O'Kelly and others v Trusthouse Forte PLC [1983] ICR 728 was satisfied.[27]For the Claimant, Mr Greig submitted that the Tribunal had not erred. It had, he said, clearly considered that the case fell within the second category of rule 18(7)(d) circumstances and accordingly strike out could only be justified if a fair trial was not possible and if there was likely to be prejudice to the Respondents. He referred to Harvey at paragraphs 657 and 658 and to the case of Jones v Mid Glamorgan County Council [1997] IRLR 685, the latter for a submission that if a tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence its use, in other passages, of language inappropriate to the direction it has properly given itself should not be allowed to vitiate its conclusion. The reason for his making that submission was not entirely clear but it may have been on account of a recognition that the Tribunal's express application of a test of "excessive delay" was, on the face of it, not appropriate.[28]Mr Greig also referred to the case of Bennett v London Borough of Southwark [2002] IRLR 407 for a submission that strike out required to be a proportionate response and to the case of Ridsdill and others v Smith and Nephew Medical [2006] UKEAT/0704/05 at paragraph 25 where Mrs Justice Cox commented that strike out was a "Draconian measure" which ought to be applied only as the final tool in the range of sanctions open to a Tribunal. He accepted that the Claimant had in fact been fit to attend the Tribunal hearing on 19 March and that he had caused inconvenience to the Respondents and to the Tribunal but that there was no prejudice to the Respondents and the Tribunal's decision had been in accordance with the overriding objective. The delay caused was not so excessive that the position could not be recovered. If it was considered that it was the result of error of law, there should a reference back to the Tribunal for further reasons or a remit.[29]Mr Greig added that if the Respondents were to seek an award of expenses then it should be known that the Claimant's position, as intimated to the Respondents, was that he would have been agreeable to the appeal being allowed provided that the outcome was that the case be remitted to the Tribunal to be reheard. When asked how, if that was so, it could also be the Claimant's position that the Tribunal had not fallen into error, he was in some difficulty in providing a satisfactory explanation. Discussion and Decision[30]I am satisfied that the Tribunal erred in law. The correct test was not considered at all. It appears from a reading of paragraph 5 of the Tribunal's reasons that it considered two matters. One was that the Claimant had not attended at the hearing on 19 March. The other was that the Chairman appears to have thought that she required to apply a test of whether or not there had been "excessive delay" on the part of the Claimant.[31]In so doing, the Tribunal fell into error. Firstly, it required to recognise that the strike-out application was on the basis that the claim had not been actively pursued. That is not the same thing as asking whether there has been excessive delay and the question of whether there had been a failure in that regard is neither asked nor answered by the Tribunal. It required the Tribunal to recognise that, contrary to what was suggested by Mr Greig, this was not a case of inordinate delay falling into the second category identified in the authorities such as Evans Executors and Birkett and summarised in Harvey in the passages to which reference has been made. It was a case where what was at issue was whether there had been the sort of default that was characterised in Birkett as being "intentional and contumelious" i.e. a failure falling within the first category. That is not to say that either Evans or Birkett has the effect of importing an express "intentional and contumelious default" test into rule 18(7)(d) but the discussions in those authorities and other authorities are indicative of it not being appropriate to exercise the strike out discretion in a case of intentional default unless the conduct complained of can be seriously censured on account of concern regarding the first of the two problems that I have discussed at paragraph 32 above.[32]Thus, the whole circumstances required to be carefully examined. If they had been the conclusions that would inevitably have been drawn were that the Claimant had certainly not actively pursued his claim. He had failed to attend at the Hearing on 19 March. He had not tried to attend that day when the Tribunal office got in touch with him. There was no good reason for him not having done so. He was fit to do so. There was, for instance, no indication that he had tried to get into Edinburgh once alerted to the calling of his case or to his having taken any steps to contact his representative. The medical certificate, on which he purported to rely in his telephone conversation with Mrs Grant, did not in fact certify him as unfit to attend at a Tribunal hearing and was furthermore, dated 13 March. If the Claimant thought that it justified postponement of his case, prompt steps should have been taken to make it available. No explanation for the failure to meet the Tribunal's requirement that a copy of it be provided on Friday 16 was given at all. The Claimant had not, within seven days of the Chairman's note, intimated his intention to attend at the PHR or sent written reasons in opposition to the application for strike out within that period. There had been no communication with either the Tribunal or the Respondents between 19 March and 9 July. No attempt had, for instance, been made to obtain copies of whatever documents from the Respondents it was considered were required, if indeed they were required. No notice of his intention to appear at the PHR was given to anyone at any time.[33]Secondly, the Tribunal required to examine the quality of the Claimant's conduct in failing to actively pursue his claim. Importantly, it should have recognised that the Claimant had failed to attend the Hearing on 19 March on the basis, to his knowledge, of it having been represented to the Tribunal that he was medically unfit when that was not the case. He was, on his own admission, fit to attend. Not only did he do nothing, however, to correct that misrepresentation, but in an instance of conduct that was distinctly lacking in candour, he compounded it by giving the impression to Mrs Grant on the telephone that his non-attendance was for medical reasons; there could be no other explanation for him saying that he could not attend in conjunction with a reference to having posted a medical certificate to the Tribunal. It seems highly likely that had he simply indicated that he would not be attending without making any reference to a medical certificate that the Tribunal would have been readily persuaded that the Respondents' motion for dismissal under rule 27(5) was well founded.[34]Whilst at the PHR the Claimant said (as is recorded in paragraph 4 of the Chairman's note) that his representative told him that the hearing had been postponed due to the Respondents' inability to produce documents and that his medical condition was an "additional reason", the Tribunal should have questioned the credibility of that account. Firstly, when Mr Clarke emailed the Tribunal on 16 March, the document problem was the additional reason advanced for postponement. The principal reason was the Claimant's medical condition. Secondly, as I have already noted, the Respondents had never been asked for copies of documents nor had any order been sought from the Tribunal notwithstanding the fact that the Claimant continued to be represented until some two weeks prior to the PHR. Thirdly, the Claimant made no mention of knowledge of any document problem at all to Mrs Grant when he telephoned her at the Tribunal on 19 March. If Mr Clarke had given the Claimant the account which he related to the PHR, it seems inconceivable that he would not have relayed that to her at that time.[35]Strike out is the most serious of outcomes for a Claimant. It is though, one that can competently be ordered by the Tribunal and it is important to avoid reading the warnings in the authorities regarding its severity as indicative of it never being appropriate to use it. To do so would be to ignore its inclusion in the 2004 Regulations, evidently for good reason. It was, however, moved by the Respondents against a background of the Claimant's case having been saved from what would, in my judgment, have been an inevitable dismissal under rule 27(5), by means of a misrepresentation having been made to the Tribunal to the effect that he was not medically fit to attend the Hearing when the Claimant knew that was not the case. Not only did that show a lack of candour as to a critical issue but it was also evident of considerable disrespect to the Tribunal. Nothing was done by the Claimant to correct matters from 16 March, when he knew of that representation having been made by his representative and nothing was done to progress his case thereafter. His failure even to intimate that he intended to appear at the PHR and evident failure to do anything else to progress his case between 19 March and 9 July provided confirmation of a persistent disregard for the Tribunal, its procedures and the Respondents' interests.[36]In all these circumstances, I am satisfied that this is a case where this Tribunal can substitute its own conclusion. Had the Tribunal properly considered the whole facts and circumstances it is inevitable that it would have reached the view that the motion for strike out ought to be granted. Disposal[37]I will, accordingly, pronounce an order upholding the appeal, quashing the Tribunal's order of 26 July 2007 and substituting for it an order striking out the Claimant's claim.