Appeal No. EAT/1085/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 July 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR T C THOMAS CBE

	MRS P TURNER OBE

MRS S E GWENT	APPELLANT

(1) WEST GLAMORGAN COUNTY COUNCIL	RESPONDENTS
(2) HEADMASTER RAYMOND SAMPLES
(3) GOVERNING BODY PENTREHAFOD SCHOOL

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
	REPRESENTATION ON
	BEHALF OF THE
	APPELLANT

	

		MR JUSTICE MORISON:	It is now 2.20 pm.  As this case was listed for 2.00 pm we should proceed to deal with it in the absence of Mrs Gwent.  The circumstances are that this is an appeal brought by her against a decision of an Industrial Tribunal relating to an interlocutory matter.  This matter has been put back on two previous occasions and on the last occasion when it was adjourned she was specifically informed of today's date and told that this Tribunal would not be prepared to consider a further adjournment.  She is not here to pursue her appeal and we propose to deal with it in her absence.  This of course is without prejudice to her right under Rule 33 of the Employment Appeal Tribunal Rules to apply, if she is so minded, within 14 days of today for a review of this decision and no doubt if she is able to provide a reasonable and satisfactory explanation for her absence, that application will be acceded to.

	This is an appeal against the decision of an Industrial Tribunal on the 15 September 1993 in which in the exercise of the Chairman's discretion under Rule 4 sub-Rule 4 of the Industrial Tribunals Rules of Procedure Regulations, she ordered that the whole of the originating application be dismissed.  Essentially the reason why it was being dismissed was because there had been a failure by the Applicant, Mrs Gwent, to supply the Further and Better Particulars of her complaint which were ordered by the Industrial Tribunal.  

	The background facts appear to be as follows.  Mrs Gwent became employed at Pentrehafod School either by the Governors of the School, or by the Local Educational Authority, that is the West Glamorgan County Council, as from the 1 September 1990.  That employment came to an end as at the 2 May 1992 by reason of her dismissal.  Accordingly, she presented a complaint to an Industrial Tribunal complaining of "unfair dismissal through sexual discrimination and victimisation as part of the establishment cover up with regard to our youngest child". 

	Her Industrial Tribunal Form 1 was accompanied by an attached letter running to 19 pages.  In a nutshell, as we understand it, Mrs Gwent says that she has had a lot of time off,  initially through pressures at home as a result of the youngest of her three children leaving, at about the age of 14, his father's public school where the boy had been, and of her discovery that the boy had become disturbed due to what she believes to have been sexual abuse and beatings at that school.  His emotional difficulties, whatever their origin, understandably perhaps put great pressure on the family, compounded by what happened when thereafter he went to a particular unit where he was given certain drugs.  

	As a result she was unable to be at work, according to her application, during these difficult times, and effectively did not attend work at all from the summer term of 1991.  She was able to cope better, according to her Industrial Tribunal Form 1 by about mid July of 1991.  But then shortly before she expected to be able to return to school after the mid term break in the Michaelmas term, she discovered that she needed a hysterectomy and from that time (she discovered this in September) she did not return to work until her dismissal just two days before she was due to have her operation.

	On an enquiry by her employers before the dismissal, she had told them that she would not be fit to return to work until the beginning of the Michaelmas term in 1992.  Accordingly, it looks at though since her appointment she has had rather more time off work than she has had at work.  The employers applied for Further and Better Particulars of the allegations contained in her IT1, that is in the letter attached to it, because they felt unable to prepare themselves for the hearing until after those particulars had been provided.  The particulars are set out in a letter dated the 27 April 1993 from the Industrial Tribunal containing the Order which was made under Rule 4(1)(a)(i) of the Industrial Tribunal Rules of Procedure.  They are to be found at pages 71 and 72 of our file of papers.  

	Subsequent to the making of that Order she was asked by the Industrial Tribunal on the 18 June 1993 whether she was intending to supply those particulars.  It was pointed out to her that she had already failed to comply with the Order for those particulars because the particulars had been ordered to be supplied by the 10 May.  The letter to her continues:

		"As stated on the Order failure to comply may result in your application being dismissed before or at the hearing.  Please will you let us know whether or not you have complied with the Order.  If you have not you will be required to show cause why the Originating Application should not be struck out."

	Those particulars were not supplied but eventually, and we see it at pages 83 and 84 of our file, she purported to comply with the Order that had been made against her.  That purported compliance was manifestly not a compliance with the Order as it had been made and the Industrial Tribunal wrote again to her on the 26 August 1993 saying:

		"The chairman has instructed me to inform you that it appears you have failed to comply with paragraphs 3,5,6,7,10,11,12 and 13 of the Order of 27 April 1993.  Without the information which is the subject of the Order the respondents are unable to prepare their case in response to your allegations.  This would result in severe injustice to the respondents should the case be allowed to proceed.

		Please will you show good cause why your Originating Application should not be struck out."

	On the 9 September the Tribunal wrote again to her saying:

		"We have not received any reply to our letter of 26 August 1993 asking you to show good cause why your originating application should not be struck out.  Please reply by or before 15 September 1993.  The Chairman will take a decision on the matter on that date."

	The response of Mrs Gwent was to refer to that letter as a "bullying letter" in a reply which she sent to the Regional Office of the Industrial Tribunals on the 13 September 1993.  She also made a complaint to the Secretary of the Tribunals at Ebury Bridge Road about the conduct of the Industrial Tribunal Chairman.  The latter matter was dealt with by the President of the Industrial Tribunals in his letter of the 16 September.  On the 15 September  the Chairman of the local Industrial Tribunal having considered all the papers and correspondence with care came to the conclusion that as Mrs Gwent had failed to comply with the Order which had been made on the 27 April 1993 the application should be struck out.

	The terms of the Industrial Tribunals decision are set out with some care and we would incorporate into this judgment paragraph 17 to 21 inclusive of that decision which shows how the learned Chairman exercised her discretion:

		"DISCRETION

		17.	In exercising my discretion under rule 4(4) my chief consideration is the demands of justice.  The demands of justice are reflected in the functions of further and better particulars, which are: to inform the other side of the case he has to meet, to prevent his being taken by surprise, to enable him to prepare his evidence, to limit the generality of the claim, and to define the relevant issues.

		18.	I also bear in mind that the demands of justice require that an applicant should be allowed to put his case and that an originating application is not to be dismissed lightly.

		19.	I find that all of the 14 particulars ordered are necessary to inform the respondents of the nature of the case they have to meet, to prevent their being taken by surprise, to enable them to prepare their evidence, to limit the generality of the claim, and to define the relevant issues.

		20.	In my view to allow the case to proceed in such circumstances would put the respondents at so severe a disadvantage in the conduct of the proceedings as to constitute a grave injustice.

		21.	IN THE EXERCISE OF MY DISCRETION I order that the whole of the originating application be dismissed on the grounds that:-

				(i)	Mrs Gwent has failed to comply with an order for further and better particulars dated 27 April 1993

				(ii)	the effect of that failure is to deprive the respondents of the means of preparing their case 

				(iii)	to allow the case to proceed would constitute an injustice to the respondents

				(iv)	any disadvantage to Mrs Gwent in not being allowed to proceed is the result of her own conduct and is outweighed by the injustice to the respondents."

	The Appeal Tribunal derives its jurisdiction from statute.  Its powers are confined in cases such as these to dealing with misdirections in law of Industrial Tribunals.  We cannot interfere either with discretions which have been properly exercised or with facts as found by Industrial Tribunals.  In this case we are quite satisfied that there are no grounds for thinking that the Industrial Tribunal Chairman misdirected herself as to the exercise of her discretion having regard to the making of the Order for Further and Better Particulars as to which there was an appeal and the subsequent events which we have referred to in this judgment.

	Accordingly, we are quite satisfied that there is no point of law in this appeal, there being no grounds on which we could or should interfere with the discretion of the learned Industrial Tribunal Chairman and accordingly we will dismiss this appeal on the grounds that we have no jurisdiction to deal with the matter.