Appeal No. EAT/0433/01/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 October 2002

Before
HIS HONOUR JUDGE D PUGSLEY
MRS D M PALMER
MR P M SMITH

MR K A MAYNARD	APPELLANT

MALTON BACON FACTORY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR O BROWN
Of USDAW
Legal Department
Oakley
188 Wilmslow Road
Manchester
M14 6LJ	
For the Respondent	MR P GOODBODY
(Of Counsel)
Instructed by:
Messrs Mace & Jones
Solicitors
Drury House
19 Water Street
Liverpool
L2 ORP	

JUDGE D PUGSLEY

1.	This is a case where there is a degree of irony that we are sitting as a Tribunal with members whereas the Tribunal Chairman, Mr Simpson was sitting alone.  The case concerns an appeal which arose out of an Applicant as an application under the Disability Discrimination Act.  The Applicant had been employed by the Respondent for a week in July 2000 having given up a job which he had had eight years’ service.  He contended that at the interview he told the Respondent he had a perforated ear drum and he was subsequently dismissed because he was regardless being a safety risk.  It is contended that this was a breach of the Disability Discrimination Act.  In November of 2000 Mr Hildebrand, a Chairman gave leave that the Applicant’s serve a specialist report by an ENT surgeon.  That was to be done by 12 January 2001.  There was then power for the Respondent to serve a report in response if so advised by February.  The deadline of 12 January was not met.

2.	The Chairman, Mr Hildebrand pointed out in paragraph 11, page 7 of the bundle, that the parties do not have discretion to vary the directions and any party in default in respect of the directions should immediately contact the Tribunal so that consideration can be given to an extension of time and/or orders to secure compliance with the directions.  The parties were warned that in the event there is a default consideration may have to be given to sanctions being imposed in costs in relation to the default identified.

3.	We suspect there was a slight error of drafting.  We suspect that what Mr Hildebrand was saying is that if a party is in default or the other party recognises the party is in default they should either apply to extend the time or make sure that sanction is imposed to secure the compliance.  We do not know of any order whereby parties in default have to report themselves to seek a sanction against themselves.  Be that as it may it was clearly before the parties that they will be at risk in costs if they failed to comply with the order.

4.	Unfortunately the Union who were acting for the Applicant allowed the files to go to sleep.  Certainly they did nothing until they were prompted by the letter sent to the Tribunal on the employer’s behalf.  The matter is dealt within the decision of Mr Simpson in this way where it is said at paragraph 2 of the decision:

“What was being said was that, some three weeks after the directions hearing had take place, the Legal Officer of USDAW had sent a letter of instruction to a specialist seeking a report but that the letter had gone astray.  There was no explanation for the failure to chase up the letter nor any explanation as to whether USDAW had any system, and if so what system, for monitoring cases to ensure that time limits were adhered to.  There appeared to be some confusion as to whether the case was being dealt with by Ms Holland or by the Legal Officer.  There was no attempt to explain how directions given by the Tribunal were diarised or what organization was in place to ensure that cases were properly prepared in accordance with directions.  There was no acknowledgement of the fact that the order was quite specific regarding the obligation of the parties to ensure compliance with directions.”

5.	It is right to say that Mr Goodbody who appears for the Respondent employer has said that the directions have to be seen in the context that if the hearing is in November a case had been fixed for three days to be heard in March and that therefore this is not just as simple failure to comply in a process of litigation.  This was a failure to do anything in the knowledge that there was going to be a hearing in March.  We have listened carefully to the arguments and we are impressed by the way they have been put in the submissions before us.

6.	We are concerned that this decision seems to have a certain confusion as to under what powers the Tribunal was purporting to act.  The order says that on the powers conferred by Rule 13(2)  set out in Schedule 1 of the Employment Tribunal Constitution of Rules of Procedure Regulations 1993 are the basis for the application to be struck out.  However the body of the decision makes it clear that it was the failure to comply with the directions which are the reason for the striking out.  But actually there is no power to strike out pursuant to rule 4(7) for a default unless notice is given.  It would seem that the notice has to be given formally and there is not a saving of provision as there is in rule 13(3) which says in effect that notice can be given orally.

8.	At the end of the day, what is vital is to balance the prejudice that will occur to the defendant against the injustice to the claimant of being unable to pursue the matter and as the case of Evans v Commissioner of Police CA [1993] ICR 151 makes clear the test is a high one.  If the default was not intentional and contumelious there must have been inordinate and inexcusable delay on behalf of the Applicant and such delay must have given rise to a substantial risk that it was not possible to have a fair trial of the issues of the application or that it has caused serious prejudice to the Respondent.  

9.	Quite simply, having looked at these matters we have come to the view that there was a real dichotomy and wavering between whether the Chairman was purporting to exercise the power to strike out for want of prosecution or was purporting to exercise the power to strike out because of a non compliance under Rule 4(7).  We do think this issue was adequately resolved in that the Chairman never grappled with the appropriate test.  The appropriate test we say is to bear in mind from start to finish: was a fair trial possible or has serious prejudice been caused to the parts not in default?

10.	We note that in the case of Jackie Greene v The London Borough of Hackney, Appeal Number EAT/1182/98, a decision delivered on 23 November 1999, his Honour Judge Hicks said this:

“9.	The second lay in the tribunal’s failure to distinguish between the criteria to be applied in considering whether to strike out under Rule 4(7) of the Employment Tribunals Rules of Procedure 1993 for failure to comply with directions and those to be applied in considering whether to dismiss for want of prosecution under Rule 13(2)(f).  It was the former power which the tribunal expressed itself to be exercising, but the considerations of delay and of the possibility or otherwise of a fair trial on which it relied are characteristically those appropriate to the exercise of the latter.  When deciding whether to strike out for failure to comply with a direction it is at least material, and often decisive, whether the direction was peremptory, for example by being in the form of an “unless” order.  No consideration was given by the tribunal to that question, nor to the possibility that the situation could be met by making such an order.

But thirdly, assuming in the tribunal’s favour that despite its reliance on Rule 4(7), and the fact that that was the only rule referred to in the notice to show cause, it was in fact open to it to exercise instead or in addition the jurisdiction to strike out for want of prosecution or to apply the same principles as it were doing so, it erred in its approach to the exercise of its discretion in that respect.  The first question in such a case is whether there has been inordinate and inexcusable delay.  Allowing for the fact that greater expedition can properly be expected in tribunal proceedings than has often, at least in the past, been required in litigation, it may be that it would not have been perverse to find that the delay in this case was of that order, but at least the question needed to be addressed.  Perhaps more importantly the issue whether there could be a fair trial, that is one not causing unacceptable prejudice to the Respondent, is inadequately treated.  A general statement that “memories fade and people cease to be available” is of little or no weight in the absence of evidence and findings on the question how far that is a significant factor in the instant case.  The statement that the Respondent still did not know the case being brought against it was not a fair summary of the position over most of the field of Miss Greene’s complaints, in the light of the material available at that date, including the document of 23 October 1998.”

11.	Applying that helpful guidance in that case to this case the reality is that at an early stage the Respondents knew what the issue was.  The order provided then to file the whole medical report on receipt if so advised of the Applicant’s report.  Therefore at an early stage they knew full well the issue they had to raise.  It was common ground that the Applicant was deaf, as we understand it, what was an issue was the extent to which he suffered from a condition that made him vulnerable to either be infected by or to infect the material which was the subject matter the production of this undertaking which as it is called bacon we can assume it to be an animal meat.

12.	We do not think that this Tribunal did grapple with this in the way that is required to consider the extent to which there was a real prejudice for the fair trial would not be possible because it did not put into the balance the injustice to the Applicant for not being able to pursue the claim.  It did not actually, if we may say so, consider what in reality was the prejudice and tended to assume it rather to find it.  Furthermore in that it relied on the order in default that really was a threat as to costs.  We do not say that precludes striking out an action but we do say one should be most careful if one goes beyond that which is threatened and there should be good cause for so doing.

13.	We are not making light of the fact.  The Union failed to have a proper system but this was not a contumelious contempt of Court rules or any of that sort.  This was a sort of mistake which is made in the running of solicitors’ offices, union’s offices, barristers’ chambers and even if from time to time courts and tribunals where something is overlooked and the adequate check is given.

14.	We have come to the view that the reality is that this case should be allowed to proceed on its merits.  Neither parties it is suggested to would be appropriate to remit it to a tribunal to be considered again.  We are fortified in that view that we sit as a quorum with lay members and we have all the information any tribunal would have.  However, we cannot accept Mr Damien Brown’s somewhat gentle, tentative argument on the issue of costs.  We think the union caused the problem.  We hope it will be honoured by the union rather than the Appellant.  The costs were occasioned by their failures of procedures and in elementary justice they should pay the £500 ordered by the Tribunal.  We therefore allow this appeal.  We order for the case now to proceed to be heard on its merits but we do not disturb the ruling that the Appellant should pay the £500 costs ordered below.  The order will be allowed the appeal to the extent of reversing the striking out order and the case is ordered to proceed on its merits.  The appeal as to costs is dismissed.  The case will be listed for directions as to future conduct of the case on the first available date after 1 December 2002.