Appeal No. UKEATPA/1807/10/SM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
15 June 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MR
C TAYLOR APPELLANT
HP
ENTERPRISE SERVICES UK LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION – APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge did not err in
striking out the Claimant’s case which had not been actively pursued over six
years, correctly applying Peixoto and distinguishing Abegaze.
HIS HONOUR JUDGE McMULLEN
QC
1.
This appeal is about Employment Tribunal case management procedures in
striking out a claim which was not being actively pursued. I will refer to the
parties as the Claimant and the Respondent.
Adjournment
2.
The Claimant has applied for an adjournment of today’s hearing by a communication
sent yesterday (14 June 2011). He says that it is necessary for
further clarification of the Practice Direction, and this can only be dealt
with by another scheduled hearing of this application; and he requests further
details from the EAT in respect of its various communications setting up this
hearing. He says, “I am in poor health, and these continued difficulties are
worsening matters and causing distress.” The circumstances are no further
elaborated than that, and, as will become clear when I give my opinion (para.
13 below) I dismiss the application for an adjournment today.
Introduction to the Application
3.
This is an appeal by the Claimant in those proceedings against a
Judgment of Employment Judge Warren, sitting alone at Shrewsbury on 10 June 2010 at a PHR, registered with Reasons in
25 August 2010. The Claimant was in person; the Respondent
represented by Miss Paula Rome, a solicitor who attends today,
although of course she plays no active role in the proceedings. The Claimant
raises a number of claims in relation to his redundancy on
31 December 2005. The Respondent denies them, together with
succeeding claims of disability and race discrimination and a claim for
unlawful deductions. The issue presented to the Employment Judge was whether
the claim should be struck out because the Claimant has not actively pursued
the matter. This is in accordance with the overriding objective in dealing
with cases justly, saving expense and so on, the striking out of the claim
under rule 18(7)(d) when it is not being actively pursued, and 18(7)(f),
perhaps tautologously, when it considers that it is no longer possible to have
a fair hearing. The Employment Judge struck out the claim.
4.
The Claimant appealed, and directions were given on the sift of his
Notice of Appeal. My approach to a hearing under rule 3 is set out in Haritaki v SEEDA
[2008] IRLR 945 at paragraphs 1‑13, which should be read with my
Judgment. That approach has been approved in Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. On the sift HHJ Serota QC formed the following opinion:
“Employment Judge Warren has given a full, detailed
and comprehensive judgement in which he [sic] has detailed the lamentable
history of this case. He [sic] directed himself correctly as to the law and
recognised that the draconian order of a strike out was very much a last
resort. However he [sic] concluded, as he [sic] was fully entitled to do on
the history of the case to conclude that, a fair trial was no longer possible.
The claim is already almost 5 years old and there is no prospect of it being
ready for trial in the foreseeable future.
The Notice of Appeal discloses no reasonable grounds for
bringing the appeal.”
5.
The Claimant exercised his right on expressing dissatisfaction with that
opinion to have a hearing. I have considered the correspondence setting up this
hearing and, although the Claimant raises what he says are points of
clarification, there is no ambiguity about what is to happen here. The
Claimant has the Practice Direction; he is able to come and make all the
arguments he wishes, and I make my own decision.
The legislation
6.
The adjectival provisions that I have cited above are the case
management powers of an Employment Judge under rule 18, including striking
out and ensuring that there is to be a fair hearing.
The facts
7.
The Claimant was employed by the Respondent between 2001 and 2005, when
he was made redundant. He makes a number of claims. The Employment Judge set
out the procedural history which, in short, involves very substantial
correspondence. There are 211 pieces; there have been 4 case management
discussions, and none has moved the case forward. The claims were
insufficiently particularised with no proper disclosure; the Claimant has not
produced a witness statement; no documents have been agreed; the issues were
not identified; many of the witnesses have left the Respondent’s business some
time ago. The incidents of discrimination relied on date from 2003, and some
go back to 2001.
8.
The Judge held that most of the delay was caused by the Claimant’s failure
to deal with the case. He had not obtained representation; he is suffering
from depression, but he does not use medication, preferring alternative
treatments. The Judge outlined the very substantial number of interventions by
the Tribunal to try and get the case on the road. The Judge heard the
submissions of the Claimant that he had tried to co‑operate and hoped
that he would be well enough to proceed, but he was still unwell and not in a
position to agree to his case being heard. The Judge noted that he was able to
present an eloquent and focussed argument and, when questioned about his
condition, he confirmed he was taking neither medication nor counselling, but
acknowledged that this was a distressing process.
9.
The Respondent contended before the Judge that the defects in the
procedure that I have mentioned above were all part of the problem, and there
was no medical update on the Claimant’s condition; witnesses had left, and so
on. The Judge concluded that the Claimant had not been actively pursuing his
case:
“28. In reaching my decision I have taken account of all the
facts and circumstances, including the fact that strike out is the most serious
of sanctions, as set out in the case of Rolls Royce PLC v Riddle
[2008] IRLR 873.
I have reminded myself that this case is nowhere near ready for
hearing, and that the claimant is unable to assist with when he may be ready to
move forward. The respondent can do nothing to assist progress, other than to
sit and wait. In that time witnesses’ memories are fading, the respondent has
been the subject of major corporate change, including massive redundancies and
major office moves. Witnesses have left their organisation and not yet been
traced.
I have considered the situation in the light of the case of Peixoto
v British Telecommunications Limited PLC EAT/0222/07. This case is very
similar; I simply cannot see any date in the immediate future when this case
could be heard. Further, there is no obvious other action that can be taken by
either party, or the tribunal to expedite progress towards a final hearing.
29. Applying the Peixoto case to the facts of this case I
have accordingly, and with a degree of regret, concluded that a fair trial will
not be possible. I therefore strike out the claim.
30. In reaching this conclusion I have taken account of the case
of Abegaze v Shrewsbury College of Arts and Technology [2010] IRLR 238.
I find this did not assist as there had already been a full hearing in
Mr Abegaze’s case on liability. The key witnesses had been heard, and
only the issue of remedy remained. Of course at that stage all parties would
have the benefit of the initial fact finding and conclusions reached by the
tribunal who heard the evidence, for which I assume there was no lengthy
delay. The real issue in this case relates to the ability of the respondent to
respond to the claim. At every stage of this case steps have been taken to
attempt to progress the case without the need to take the ultimate sanction to
strike out. None however have been successful, and there is no reason to
believe any would be in the future.”
The Claimant’s case
10.
The Claimant’s arguments do not address the central issue of the failure
actively to pursue the case and the consequence, which is there cannot be a
fair hearing. The Claimant continues to argue the merits of his employment
situation, but this is now a procedural matter on appeal as to whether the
claims should have been struck out. I agree with HHJ Serota that
Employment Judge Warren fully set out the circumstances and showed
which directions she was taking from the authorities, and she was correct to
refuse to review the decision which she had made. The Judge directed herself
by reference to Peixoto which I decided on appeal, and, in the
absence an argument by the Claimant that that was wrongly decided, I suffer the
human vice of agreeing with what I said earlier. I am capable of being
persuaded but, since he is not here and he does not mention this authority,
there is no reason why this should not have been relied on by the Employment
Judge.
11.
I also decided Abegaze, on appeal from Judge Thompson
in Shrewsbury, and the Judge was right there to draw attention to it because Abegaze
had been overturned by the Court of Appeal, it being decided that both the
Judge and I were wrong in his ordering and my upholding the striking out of
Dr Abegaze’s case on the grounds that it had not been actively pursued.
The Court of Appeal directed that the appropriate step would have been to give
Dr Abegaze an unless order. There are two answers to that: first, the
Judge’s answer, which is that the case deals with a situation which has already
reached a conclusion in favour of a Claimant. Dr Abegaze, it is sometimes
forgotten, was successful in this amongst the scores of claims that he has
brought throughout our system, but in this case he was successful and was
awaiting a remedy. He has still not had a remedy, yet his cases continue to come
to the EAT. The second reason is that the Judge here has applied the Judgment
in Peixoto, which is directly on point, and no fault can be found
in the exercise of discretion.
Conclusion
12.
The Employment Judge recognised it was a draconic measure. She was
addressed in relation to the appropriate authorities by Miss Rome, and she
came to a conclusion which was open to her; and I see no error of law.
13.
The application today for an adjournment is the very latest dragging of
heels by the Claimant. It is symptomatic of the steps which the Judge has
found and which I have upheld of the Claimant’s approach to the case and,
having an eye on what the substance was of this case, provisionally, and
knowing that the Claimant had not turned up, I made the decision which I did to
go ahead anyway.
