Appeal No.	 EAT/197/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS T A MARSLAND
MR R H PHIPPS

MR D FRASER	APPELLANT

LONDON ELECTRICITY PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR D BROWN
(Appearing under the
Employment Law Advisers
Appeal Scheme)	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing has been to determine whether Mr Fraser has an arguable point of law in his prospective appeal against a decision of an Industrial Tribunal that his Originating Application should be struck out.

	The brief sequence of events is that Mr Fraser presented his IT1. It was very unclear as to precisely what he was complaining of, although he did mention the words unfair dismissal, but it would appear that he did not have the requisite two year qualifying period. He also appeared to be making a claim in relation to unlawful deductions from his wages which he alleges he was entitled to, and breach of contract.

	Not surprisingly, the employers, London Electricity in their IT3 gave a short response to the claims, but indicated that they would endeavour to resolve the matter without recourse to the tribunals by mean of the ACAS service. They also asked for particulars of the application which, very sensibly, the tribunal ordered on 9th October 1996, giving Mr Fraser seven days in which to provide them.

	The hearing date was fixed for 22nd October 1996, and on 18th October 1996, the Industrial Tribunal wrote to Mr Fraser saying:

“The Chairman is considering whether to strike out the Originating Application under power conferred by Rule 4(7) of the Industrial Tribunal Rules of Procedure 1993 for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing within 14 days of the date of this letter. If you do not wish this to be done you should be prepared to give your reasons either in writing or verbally at the hearing fixed for 22 October 1996.”

	What happened was that Mr Fraser turned up at the hearing which had been fixed for 22nd October 1996. He pointed out to the Industrial Tribunal that he thought that he had complied with their Order by a fax which was sent to the tribunal but may not have been received by them, dated 11th October 1996. The Industrial Tribunal took the view that that document did not comply with the Order, and they said this:

“4    The Tribunal recognises that striking out is a last resort. In this case the Respondent originally asked for a postponement. That was refused. It now asks that the Originating Application should be struck out for failure to comply with the Order. In our view it is impossible to deal with any claim made by Mr Fraser unless he specified what he is claiming either in respect of breach of contract or of unlawful deductions from wages or of unfair dismissal. It seems to us that it is not just to the Respondent to spin out these proceedings any further in the light of Mr Fraser’s stance. For that reason we have decided to strike out the Originating Application and have ordered accordingly under power conferred by rule 4(7) of the Industrial Tribunals Rules of Procedure 1993.”

	It seems to us to be arguable in the light of the letter of 18th October 1996, that the tribunal were not entitled to strike out his Originating Application. Under the Rules they must write a ‘minded’ letter to parties whom they are proposing to strike out. They wrote the letter of 18th October, and yet on 22nd October 1996, before the time specified in that letter had expired, purported to strike out his application. It seems to us that the last sentence of the letter which was written is unclear, but we would construe it as saying that he had 14 days to give his reasons in writing, but alternatively he could give his reasons verbally, by which we assume they mean orally, at the hearing fixed for 22nd October 1996, if he would prefer. If he failed, as he apparently did at 22nd October 1996 hearing to give his reasons orally which satisfied the tribunal, then the tribunal should have waited for the appellant to avail himself of the opportunity that they had given him by the letter of 18th October 1996, before his application was struck out.

	Mr Fraser then asked for a review of the decision of the Industrial Tribunal. That was refused by the Chairman by a decision of 10th December 1996, despite the fact that by then the applicant, through solicitors, lodged further and better particulars of his claim.

	Having looked at the further and better particulars which have been provided, it seems to us manifestly clear (and we have been grateful to Mr Brown on  behalf of the ELAAS service in this case), that the complaint of unfair dismissal cannot possibly succeed because Mr Fraser has not got the requisite continuous period of two years employment prior to the date of his dismissal. That being so, we are not prepared to allow that element of his claim to go forward for a full hearing. But in relation to the other parts of his claim, that is for breach of contract, we are prepared to allow the matter to proceed for a full hearing on the basis that it is arguable that the Industrial Tribunal erred in law in striking out his Originating Application on 22nd October 1996, rather than awaiting the time limit specified in their letter of 18th October 1996. That is the only issue which will be available to Mr Fraser at the resumed hearing of this appeal and it will relate only to his breach of contract claims as set out on page 4 of the further and better particulars under heading (a).

	It seems to us, having regard to the issues as they have now become narrowed, that the suggestion made by London Electricity in their IT3 that their dispute could be looked at by ACAS with a view to it being resolved to the parties mutual satisfaction was entirely sensible. We would hope very much that despite the fact we are allowing this go to a full hearing, the parties will sensibly deal with ACAS and there will not be any need for any further hearing in this matter.