Appeal No.	 EAT/64/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR I EZEKIEL
MR D A C LAMBERT

MRS CHRISTINE CRAIG	APPELLANT

THE COMMISSIONER OF THE INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS JABATI
(of Counsel)
Messrs Yogesh & Co.
Solicitors
270 Kilburn High Road
London NW6 2BY	

	JUDGE PETER CLARK:	The Appellant, Mrs Craig, commenced employment with the Respondent in a clerical position in September 1977.  On 3 July 1995 she presented an Originating Application to the Employment Tribunal (the first complaint) alleging racial discrimination, victimisation and sexual harassment.

	Her allegations of racial discrimination were investigated internally by a senior officer within the Respondent, Christina Parry.  Mrs Parry produced a report dated 11 March 1996, rejecting the Appellant’s complaints.  On 22 April 1996 the Appellant was dismissed and on 20 June 1996 she presented a second complaint to the Tribunal alleging unfair dismissal.  She there described her dismissal as an act of victimisation and racial discrimination.  She is black.

	The complaints, consolidated by order dated 24 December 1996, were resisted.  The Respondent denied her allegations and, on the contrary, asserted that she had a record of disruptive and abusive behaviour, and a poor disciplinary record stretching back to 1983.

	The cases were first listed for hearing on 17-23 July 1997 by a notice dated 7 March.  On 28 May the Appellant applied for a postponement on grounds of stress which was refused.  A further application, made on 8 July was then granted.

	The cases was next listed for hearing on 16-20 February 1998.  Again, that hearing was postponed at the Appellant’s request.  Further hearings were listed for June and then September 1998.  The first was postponed at the Appellant’s request; the second at the respondents’ request.

	Finally, the case was listed for 2-6 November 1998, by a Notice dated 8 July 1998.  On 20 July the Appellant requested a postponement, which was refused.  Further attempts by the Appellant’s then solicitors to obtain a postponement failed.

	On 2 November the Appellant’s solicitors wrote to the Tribunal stating that they were no longer acting.  A doctor’s certificate was produced in support of the contention that the Appellant was unable to attend the hearing on health grounds.  That certificate from Dr B K Dhar reads:

“To whom it may concern
She [the Appellant] is very anxious and depressed and apprehensive and as such  is not able to face any interviews.  Her question answers will not be appropriate in my point of view.”

The hearing before the London (North) Employment Tribunal at which the Respondents had attended, could not proceed on that day.

	A decision was sent to the parties, informing them that the Tribunal would consider an application by the Respondents to strike out the Appellant’s complaints and for costs.  That hearing was to take place on 6 November and the Appellant was directed that if she did not attend she should show cause in writing by 10 am on 6 November as to why her complaints should not be struck out and why no order should be made as to costs.  She was, in the latter connection, required to give details of her financial means.

	We are told by Miss Jabati who appears on her behalf today, that the Appellant did not disclose either her address or her telephone number to the Employment Tribunal.  She gave the address only of a friend, in those circumstances, it is said that she did not receive those directions.  In our judgment, it is for a party to ensure that proper communication can take place if necessary quickly, with an Employment Tribunal.

	On 6 November the Appellant did not attend, nor did she submit any written representations.  The applications to strike out and for costs were made by Counsel who appeared for the Respondents on that day.

	By a decision with Extended Reasons dated 26 November 1998 the Tribunal struck out both complaints as being an abuse of process and for want of prosecution.  Further the Appellant was ordered to pay the costs of the Respondents in respect of the hearings on 2 and 6 November.

	Having set out in their reasons the detailed history of the matter, and directed themselves as to the law, the Tribunal concluded that for a strike out order to be made under Rule 13(2)(f) of the Tribunal Rules of Procedure 1993, that is, for want of prosecution, it was necessary for there to be inordinate and inexcusable delay on the part of the party to be struck out and prejudice to the other party.  The Tribunal found both limbs to be made out for the reasons set out at paragraphs 40-44 of their reasons. 

	As to the question of costs, the Tribunal was not satisfied, from the medical certificate to which we have referred, that the Appellant was unable to attend at the Tribunal.  She failed to attend personally or by a representative and did not send in written representations as directed for the reasons it now appears, to which we have referred.  That, held the Tribunal, was unreasonable or frivolous conduct within the meaning of Rule 12(1) of the Rules.  In the absence of any indication as to her means, again as directed by the Tribunal, an order for the Respondent's costs of the hearings held on 2 and 6 November was made, those costs to be taxed if not agreed.

	Against that decision the Appellant has appealed to this Tribunal by a Notice dated 5 January 1998.  Miss Jabati submits that in striking out the combined complaints the Tribunal erred in law in that it wrongly exercised its discretion under Rule 13(2)(f).  In support of that submission, she submits that although there had been inordinate delay, the delay was excusable for a number of reasons.  First that the Appellant had been a victim of ill-health, secondly that the presentation of her claim had been obstructed by the Respondents, thirdly, the absence of legal representation at the outset of the proceedings and subsequently the withdrawal of her previous solicitors as the hearing on 2 November was about to take place.

	Next the difficulties which the Appellant experienced in understanding the procedure of the Tribunal and further that there was difficulty over the availability of her witnesses and it is submitted that the Respondents contributed to the overall delay, first in providing documents and secondly, in themselves on one occasion obtaining a postponement of the proceedings.

	We have considered those matters as did the Employment Tribunal, but in our judgment there was sufficient material before the Tribunal to conclude that the delay was inordinate and inexcusable.

	Miss Jabati further makes submissions in relation to the abuse process point.  It seems to us that the Tribunal struck out this claim in the alternative on the basis of inordinate and inexcusable delay coupled with prejudice to the Respondents and abuse of process.  We do not regard it as necessary to consider specifically the abuse of process head.

	As to the prejudice to the Respondent, Miss Jabati submits that it is not sufficient for there simply to be pressure on the Respondents and their employees to justify a strike out order, she relies on the speech of Lord Griffiths in the Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at page 1209F.  She also submits that the Tribunal was wrong to classify the Appellant’s case as exceptional.

	Further, she submits that in the light of Mrs Parry’s report and other documentation recording the events relating to the Appellant’s employment, this was not a case which relied exclusively on oral evidence.

	It seems to us that the Tribunal took into account a number of factors in concluding that prejudice to the Respondent was made out.  Those factors are particularly summarised at paragraph 44 of their reasons.  Taking those matters as a whole, and bearing in mind that this is a case in which the oral evidence on both sides will be highly material to the outcome, we think that the Tribunal were entitled to find that prejudice to the Respondent existed sufficient to justify the exercise of the Tribunal’s discretion in striking out these complaints.

	Finally, as to the matter of costs, it is submitted that the Tribunal was aware on 2 November as a result of representations made by a friend of the Appellant, that her solicitors had withdrawn at the last moment and further it is submitted, that the Tribunal were wrong to construe the medical certificate as not indicating that the Appellant would be unable to attend at the Tribunal.

	We have considered those submissions and we reject them.  It seems to us that the overall conduct of the Appellant, not least her refusal to make herself available for communication from the Tribunal, amounted to unreasonable or frivolous conduct within the meaning of Rule 12(1) of the Rules of Procedure and in these circumstances the Tribunal was entitled to make the costs order.

	Finally, we emphasise that we do not have a general power of review of Tribunal decisions.  We can only interfere where an error of law, in this case, a wrong application of the Tribunal’s discretion is made out. That, in our judgment, is not established in this appeal and in those circumstances it will be dismissed.