Appeal No. UKEAT/0238/09/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 2009

Before
THE HONOURABLE MR JUSTICE BEAN
(SITTING ALONE)

MS A OSMAN	APPELLANT

BELSTAFF INTERNATIONAL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS A OSMAN
(The Appellant in Person)	
For the Respondent	MR B LYNCH
(of Counsel)
Instructed by:
Messrs Salans Solicitors
Millennium Bridge House
2, Lambeth Hill
London EC4V 4BG	

SUMMARY
PRACTICE AND PROCEDURE:  Striking-out/dismissal
Employee acting in person, claiming discrimination and unfair dismissal, failed to answer request for particulars, very largely concerned with the discrimination allegations. Striking-out of discrimination claims upheld but striking out of unfair dismissal claim held to be disproportionate.

THE HONOURABLE MR JUSTICE BEAN
1.	This is an appeal from a decision of Employment Judge Lewzey striking out the Appellant’s claim.  The decision was contained in a letter of 11 September 2008 which said that Ms Osman had failed to answer with any particularity the request for Further and Better Particulars, a document sent by the Respondents to her on 17 July 2008 so that it was not possible to understand the basis of the complaint or the nature of the acts and omissions about which she was complaining.

2.	The rather lamentable history of the matter is as follows.  The Applicant resigned on 2 April 2008 as a result of what her solicitors, Eversheds, by letter of that date alleged was unfair constructive dismissal.  Thereafter she acted in person and on 1 May 2008 filed form ET1 launching a Tribunal claim.  It is no disrespect to Ms Osman to say that the form ET1 is in some respects hard to follow.  It alleges not only unfair constructive dismissal but also race discrimination, age discrimination, entitlement to a redundancy payment and £53,000 net in unpaid wages.  As to the last two headings, this is plainly not on any view a redundancy case.  If the Claimant is right that she was unfairly dismissed, she is prima facie entitled to a basic award for unfair dismissal of an amount equivalent to a redundancy payment, that may be what she meant.  As to the claim for unpaid wages, that is for the most part a claim for compensation for unfair dismissal, although there is a reference to salary allegedly not paid for all or part of March 2008 when the Claimant was off sick for part of the month and suspended for the remainder of the month.  Her salary was certainly not £53,000 a month nor anything near it, but it may be that there is a much smaller claim to be found there. 

3.	The ET1 was the subject of a request for Further and Better Particulars, as I have said.  The first hearing in the case was a case management discussion before Employment Judge Lewzey on 3 July 2008.  Ms Osman appeared in person.  Mr Lynch of counsel represented the Respondents as he has done before me.  The question of the adequacy of the narrative in the form ET1 was obviously raised at that stage. The Judge directed the Respondents, if they wished, to serve a request for Further and Better Particulars within 14 days.  They did so.  There then followed lengthy correspondence between the parties and the Tribunal.  The Applicant maintained that she had given an adequate response to the request for Further and Better Particulars.  The Respondents maintain that she had not and that the claim should be struck out.  

4.	On 2 September 2008 Judge Lewzey made an unless order.  This directed the Claimant to reply to the request for particulars by 8 September and said that the claim would be struck out pursuant to Rule 13(2) without further notice or the need for a pre-hearing review if she did not.  By email of 8 September, page 194 of the bundle, the Claimant submitted a lengthy response.  It runs to several pages and refers to other documents.  Again, it does not answer most of the request for particulars and it was therefore not surprising that by order of 11 September the Judge directed that the claim be struck out.  

5.	The strike out order, however, was sought and made on the basis that it was not possible to understand the basis of the complaint or the nature of the acts and omissions about which the Claimant was complaining.  The test to be applied on strike out applications of this kind was laid down by the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630.  Sedley LJ giving the leading judgment said:
“This power, as the employment tribunal reminded itself, is a Draconic power, not to be readily exercised.  The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.”

This requires a structured examination.  The important question is whether there is a less drastic means to the end for which the strike out power exists

6.	The learned Lord Justice went on to say that proportionality is not simply a corollary or function of the existence of other conditions for striking out; it is an important check in the overall interests of justice upon their consequences.  The judge’s striking out order in the present case was quite rightly not put on the basis that it was a penalty for bad behaviour.  It was put on the basis that it was not possible to understand the basis of the complaint.  

7.	I shall have to return to the complaint in a little more detail but I will first deal with the subsequent procedural history.  Ms Osman appealed to this Appeal Tribunal on 14 October 2008.  The case came before Burton J on the paper sift.  He stayed the appeal to give the opportunity to Ms Osman to apply to the Tribunal for a review: 
“… provided that such application for Review to be made by the Appellant is accompanied by a proper Answer, specifically addressing each question, to the request for Further and Better Particulars served on behalf of the Respondent on 17 July 2008 … alternatively an explanation as to why and where any particular question has been satisfactorily previously answered.”  

8.	Further emails were received by the Tribunal from Ms Osman up to and including one of 30 March 2009.  By a decision of 22 April 2009 Acting Regional Employment Judge Potter took the view that Ms Osman’s letter and attachments did not constitute an application for review accompanied by a proper answer to the request for particulars as envisaged in Burton J’s stay order and concluded with this sentence: 
“It therefore appears that the matter now requires further consideration at the Employment Appeal Tribunal.”  

9.	The stay, by this time having been removed, came before HHJ Clark on the sift and he sent it for a full hearing which is taking place before me today.  In the course of her submissions made in person to me today, Ms Osman has provided yet a further answer to the request for particulars which should be added to the file.  It does at least deal with the matter paragraph by paragraph but parts of the claim, particularly the discrimination complaints, remain vague and in some respects, as I shall outline, unarguable. 

10.	Before I return to the form ET1 I should record that Mr Lynch, on behalf of the Respondents, has submitted firstly that the request has still in many respects not been properly answered, secondly, that the delay which is now a year since the original case management discussion and service of the request for particulars has been entirely the Claimant’s fault and means that a fair trial may no longer be possible and, thirdly, that the impact on management time caused by this unjustified claim and unjustified failure to particularise it properly has been a very serious matter for his clients.  As an example, the ET1 section 5 begins with six lines headed “Background” which read as follows: 
“Throughout my employment with the Company, I have been subjected to wholly inappropriate treatment from Mr Confalone, Wholesale Manager.  Mr Confalone has commented that I am ‘too old’ to remember important information and has often looked at me in an inappropriate manner.  Mr Confalone has refused to communicate with me friendly in English (sic), talking only friendly in Italian to other Italian colleagues.  Mr Confalone is aware that I do not speak or understand Italian.”

11.	Until service of today’s particulars, the opening sentence would have been open to the criticism that it gave no indication of what time span was being spoken of.  Today’s particulars in the first paragraph deal with matters beginning with an email of 22 February 2008 and in the second paragraph goes on to say the dates for these inappropriate treatments were constantly for a year.  Insofar as an attempt is made to refer to matters before 22 February 2008, such claims remain to this day wholly unparticularised.  

12.	Turning to the second sentence, the allegation that Mr Confalone commented on one occasion that the Applicant, who was 32 at the time of her alleged constructive dismissal, was too old to remember important information, does not of itself, in my view, give rise to any cause of action, either in age discrimination or in constructive dismissal.  The second part of that sentence saying that Mr Confalone has often looked at the Claimant in an inappropriate manner was again wholly unparticularised and I wondered whether it was some kind of reference to something sexually inappropriate.  It appears from today’s particulars to be a complaint of angry looks rather than indecent ones.  Today’s particulars include: “He looked at me as if he would do harm to me if he had to”.  There is another sentence which says: “He looked and stared at me constantly in a way that I should not be working with him”.  Again, insofar as this is a description of the specific events dealt with later in section 5.1 of the form ET1, I understand it and I think the Respondent should be able to understand it but insofar as it is a general comment relating to matters before 22 February 2008 it is impossible for the Respondents to deal with and it is doubtful whether it would give rise to any cause of action either.  

13.	Finally, on the opening lines of 5.1 the allegation that Mr Confalone has refused to have friendly communication with Ms Osman in English and that he has friendly conversations in Italian with Italian speaking colleagues, likewise does not give rise to any cause of action.  Managers are not obliged in law to be friendly to staff under their command and it is open to any employee of a company who speaks a language other than English to use that language in chatting to colleagues which are his friends.  So, in my judgment, the first six lines of form ET1 were rightly struck out.  A fair trial of these allegations is impossible. 

14.	I do not, however, take the same view in relation to the narrative of events from 22 February 2008 up to the Applicant’s resignation.  The form ET1, taken together with the letter from Eversheds on 2 April 2008 does, in my judgment, set out a reasonably coherent narrative of an allegation of constructive dismissal.  Very few of the requests for particulars which were before the Employment Judge, as Mr Lynch candidly conceded, deal with this aspect of the constructive dismissal claim and those that do, in my judgment, are requests for evidence rather than requests for particulars which are necessary in order for the Respondents to be able to defend themselves properly. 

15.	The ET1 then in section 6.1 has the two entries “race discrimination” and “age discrimination” ticked and the story of 22 February onwards is set out again.  The requests for particulars directed to the discrimination claims were fully justified.  In my judgment they have not been properly answered and it seems to me that the discrimination claims were in any event an afterthought.  Eversheds’ letter of 2 April 2008, although including a reference to a letter from Ms Osman of 26 February expressing concern about Mr Confalone’s bullying and discriminatory treatment, said nothing else about discrimination and referred at the end only to the prospects of successfully claiming unfair constructive dismissal.  The ET1 is very vague on the subject of discrimination.  The Applicant has had a large number of opportunities to explain the case and even to the extent that it has been explained, it is not, in my judgment, a case which can be fairly tried.  I therefore uphold the order for striking out insofar as it deals with the discrimination claims.

16.	I return to the question of whether a fair trial is possible.  I do not accept the submission that given the passage of time a fair trial of the constructive dismissal allegation is no longer possible.  The form ET1, as I have said, sets out not with entire coherence but with some coherence a narrative of events leading up to the Applicant’s resignation.  It refers to letters and emails, some of which I have been shown, and there is no suggestion that that material is no longer available.  I take Mr Lynch’s point that memories can fade within a year but it is not suggested that the potential witnesses for the employers referred to in the narrative are no longer available or that documents or electronic records have been destroyed.  The lack of coherence in the Applicant’s narrative can, in my judgment, be dealt with by the Tribunal making an order for sequential witness statements, that is to say that the Claimant should be ordered to serve her witness statement and any supporting witness statements before the Respondents are required to reply.  That is not the normal order but it seems to me the least that can be expected of the Claimant, given the long and, as I have already said, lamentable procedural history of this matter.

17.	As to Mr Lynch’s submissions about impact on management time, I well understand what he says, and the Respondents have had a lot to put up with in this case. But it often happens, in the nature of employment tribunal cases, that they have a significant impact on management time, which is usually uncompensatable. Nevertheless it is a burden which employers have to bear. 

18.	The Applicant’s repeated failure to comply with the Tribunal’s order for disclosure was in my judgment persistent.  It may be described as deliberate, although I would prefer myself to put it on the basis that the Applicant is incapable of giving a coherent answer to the request for particulars, but in any event I do not consider that her disregard of the requirements of the Tribunal has made a fair trial impossible.

19.	I should have mentioned the last of Mr Lynch’s requests for particulars.  That dealt with steps taken to secure alternative employment.  It goes to quantum.  It is not usual in my experience for Claimants to be required to answer requests about the quantum of their claim before there is a liability hearing.  It may be that at the liability hearing Ms Osman’s claims will fail in which case quantum becomes irrelevant but that will be a matter for the Employment Judge.

20.	I therefore allow the appeal to this extent.  Those parts of the claim which allege causes of action other than constructive unfair dismissal and failure to pay wages due for March 2008 will be struck out, as will the allegations relating to matters prior to 22 February 2008.  The claims not struck out may proceed to a hearing on the merits.  The matter is remitted to the Employment Tribunal for an Employment Judge to give directions for the hearing.  I consider that it would be appropriate for such directions to provide for sequential service of evidence in the way that I have set out.  

21.	I will hear counsel and Ms Osman as to whether any further directions from me are appropriate at this stage.  I should add one other thing, although I am not giving directions about it. This seems to me a case which could properly be dealt with by an Employment Tribunal in about two days. But it will be for the Employment Judge when giving directions for the hearing to say whether he or she disagrees.

(After argument as to costs)
22.	I am not prepared to make an order for costs in this Appeal Tribunal.  I found in Ms Osman’s favour today in respect of part of her claim.  I do not think that the conduct of the appeal before me today was unreasonable in any respect.  As to the proceedings following Burton J’s stay, his stay gave the Appellant the opportunity to make an application for review to the Employment Tribunal which she did (in a manner of speaking); but very little costs in this Appeal Tribunal were incurred by the Respondent at that stage, and in any event Burton J was only giving her an opportunity, not making an order.  The question of costs at the level of the employment tribunal will be a matter for that tribunal in due course: it will be open to the Respondents at the conclusion of the proceedings to make an application which will then have to be dealt with by the tribunal in the usual way pursuant to the Employment Tribunal Rules.