Appeal No.	 EAT/918/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R JACKSON
MISS D WHITTINGHAM

DR C J MILLER	APPELLANT

STEELS ENGINEERING LTD	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	(In person)

	MR JUSTICE MORISON (PRESIDENT):	Following a hearing on 26 February 1998, Dr Christopher Miller was ordered to pay a deposit of £150 as a condition of being permitted to take part in the proceedings which he had launched against Steels Engineering Ltd, his former employers.  The Tribunal was of the view that the Applicant’s complaint alleging a breach of contract of employment, had no reasonable prospect of success.
	The pre-hearing review was held pursuant to Rule 7 of the Tribunals Rules  Procedure and they set out in a decision which was sent to the parties on 10 March 1998 the reason why they had come to the conclusion that a deposit should be paid.  They noted the Applicant’s contention that there were two paragraphs in his contract of employment which appeared to him to be inconsistent and which might give rise to legitimate arguments that there had been a breach of contract.

	That point relates to paragraph 14 of the Company’s Disciplinary Procedure which reads as follows:

“14.	Discipline
In the event of the Company finding it necessary to administer disciplinary action to any Employee, the Company’s Disciplinary Procedure will be followed.  A copy of the Disciplinary Procedure is available from the Personnel Department.
The Disciplinary Procedure applies to employees who have completed 2 continuous years of service.  Breaches of disciplinary rules during the first 2 years of service may result in instant dismissal.”

	Dr. Miller’s contention was that on a proper construction of paragraph 14, the company was obliged to follow the Disciplinary Procedure in relation to employees such as himself who had completed less than 2 years continuous service.  It was obviously the Tribunal’s view that that interpretation of the contract, was at best, flimsy.  On the basis on which they were looking at it, that is on the basis that they were simply considering the matter superficially and generally, that is a conclusion with which we would not disagree.  The second point that he wants to make, relates to the procedure itself.  The Tribunal noted that in the third part of the procedure, it stated that the employers reserve the right not to apply the procedure to employees with less than 2 years service, but this was in contradiction to the provision in the penultimate paragraph of the procedures, which stated that it followed the recommended code formulated by ACAS.  But because ACAS’s recommendation was that the benefit of the Disciplinary Procedure should be applied to all employees whatever their length of service.  Again in relation to that argument, it seems to us, superficially, that the Industrial Tribunal were perfectly entitled to reach the conclusion that that argument was at best flimsy.  That being so, it was appropriate for them to require the payment of £150.

	The Applicant did not pay the £150 in accordance with the Tribunal’s Order and accordingly, his application was struck out in accordance with the rules.  The appeal which is before us, does not relate either to the initial decision of the Industrial Tribunal to order the payment of £150, nor to the Order which was made striking his case out, but rather to a letter which the Industrial Tribunal wrote to Dr. Miller in 22 May 1998.  That letter reads as follows, that letter starts by acknowledging receipt of the Applicant’s letter of 20 May and says:

“I fear that there is nothing that I can add to my letter of 29 April.”

	It seems to us that this letter of 22 May, can hardly be described as a decision or order from the Industrial Tribunal against which an appeal will lie.  However, we shall deal with this on the basis that it does so constitute a decision or order.

	The point which the Applicant had been making and was repeating and requiring the Tribunal to deal with, was his assertion that he was entitled to a reasoned decision following the Rule 7 hearing and that the Industrial Tribunal’s decision to which we have referred, failed to give any or any proper reasoning for the conclusions.

	We have to say that we disagree with that submission.  What the Tribunal was required to do at the preliminary hearing stage, was simply to take a view about the case, looked at overall as to whether it stood any sensible prospect of success.  If they were of the view that it was relatively hopeless or fairly hopeless, then they were entitled to exercise the powers conferred on them by Rule 7.  When such a hearing has taken place and the payment has been made, then the full Tribunal when it considers the merits of the case, will be unaware of the fact that a preliminary hearing has taken place or that any order for the payment of a deposit has been made.  The function therefore of the Tribunal at the Rule 7 stage, is not to investigate the merits of the case, as an Industrial Tribunal would when the case gets to a hearing.  In this case, the Industrial Tribunal had taken the opportunity to rehearse the arguments which they believed were going to be raised and then they expressed themselves in this way:  “the Tribunal having considered the representations made on behalf of the parties is satisfied that should the matter proceed to a full hearing, there is no reasonable prospect of success”.  That is sufficient in our judgment for the purposes of a determination under Rule 7.  If they had gone further, then they would expose themselves to the risk that a Tribunal at a preliminary hearing reached a conclusion which was in conflict with a decision of a Tribunal at a full hearing.  It is good practice for an Industrial Tribunal, in our judgment, not to attempt to give detailed reasons for the decision made at a Rule 7 hearing stage.

	In those circumstances there has never been any merit in Dr. Miller’s position that the Tribunal had somehow or another failed properly to inform him as to why he is being required to pay a deposit and it seems to us, therefore, there is no arguable point in an appeal, even if an appeal could be lodged against the letter to which I have referred.  Accordingly this appeal must be dismissed.