Appeal No.	 EAT/820/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2000

Before
MR RECORDER BURKE QC
MR P DAWSON OBE
MR J HOUGHAM CBE

MRS J P FIELDING	APPELLANT

SOUTHWARK COUNCIL HOUSING DEPARTMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R FIELDING
(Representative)

MR RECORDER BURKE QC:

1	On 2 September 1999 Mrs Fielding complained by way of Originating Application to the Employment Tribunals that her employers, Southwark Council Housing Department, had discriminated against her on the grounds of her sex.  She complained that the acts of discrimination amounted to acts of victimisation of her in respect of a protected act, that being the fact that in October 1996 she had brought earlier sex discrimination proceedings against her employers, which proceedings were ultimately dismissed upon withdrawal some time in 1997.

2	The Appellant’s complaints came before the Employment Tribunal sitting at London (South) and chaired by Mr Booth on 10 to 12 April 2000.  On the first of those three days the Tribunal dealt with the Respondents’ contentions that the complaints were out of time in large measure, having occurred more than three months before the presentation of the proceedings.  

3	Only one of the specific allegations of discrimination was accepted by the Respondents as falling within the ordinary three-month time limit for a sex discrimination claim.  Mr Fielding, who represented his wife before the Tribunal and who has represented his wife with conspicuous ability before us today, argued that the whole history had to be looked at.  

4	The Tribunal in Extended Reasons held that there were three incidents or matters which were either in time or in respect of which it was just and equitable to allow time to be extended.  Those three matters are set out in paragraph 9 of the First Tribunal Decision, which Decision sets out its determination of the issues before it on 10 April.  We do not need to recite those three matters at this stage.

5	The Tribunal went on to rule on that day that evidence that Mrs Fielding had previously complained of unlawful discrimination was admissible as part of the background, but that details of her complaints, which were not within time, were unnecessary and should not be admitted.

6	The Tribunal then moved on to consider Mr Fielding’s application that the Respondents’ Notice of Appearance should be struck out on the grounds that the Respondents had acted frivolously or scandalously by failing to deliver a properly numbered bundle in time before the hearing, as previously directed.  When we say “a properly numbered bundle” what we are referring to is perhaps, not so much the provision of a bundle as the provision by way of exchange of a list of documents which the Respondents had been ordered to provide by 6 March 2000 at an interlocutory hearing which took place in January 2000.

7	The Employment Tribunal declined to make such an order and also declined to allow an adjournment to Mr Fielding.  It was critical of the Respondents but decided that Mr Fielding had the majority of the documents and that the case should, if possible, proceed on the merits and that it could do so without an adjournment.  That decision was, by some bizarre error on the part of the Employment Tribunal, not entered into the register and promulgated until 19 June 2000.  Mr Fielding’s appeal against that decision is in fact dated 25 May; we do not know whether there is any resulting procedural defect; but if there is, it is not one which cannot be rectified or which should prevent us from considering on their merits the arguments that he puts forward as to whether or not there are arguable grounds of appeal against the Tribunal’s decisions.  

8	The Tribunal, having made the decisions that it did on 10 April, then went on on the following two days, the Tuesday and Wednesday of the week (so far as the Wednesday is concerned only part of that day was taken up) to hear in substance the three remaining complaints.  It decided that those complaints should be dismissed.  

9	This is the preliminary hearing of Mrs Fielding’s appeal against both decisions.  In the various documents that Mr Fielding has put before this Appeal Tribunal by way of letters, notices of appeal and arguments in favour of his grounds of appeal, it is clear that he, on his wife’s behalf, criticises both the decisions of 10 April and the decision which was reached after the hearing on 11 and 12 April.  

10	There is also, strangely, a time point in relation to his appeal against the substantive decision, because it appears from correspondence in our file that his appeal to this Tribunal in respect of the substantive decision, in contrast to possible prematurity in the case of the first decision, was actually out of time; but for reasons which will emerge from what we are going to say in a few moments, we are also going to put that problem on one side.

11	We are going to concentrate first on the first Decision of the Tribunal, that is to say the decision which it reached at the hearing on 10 April, which is set out with Extended Reasons in the Decision promulgated on 19 June; and we are going to take the grounds of appeal which Mr Fielding seeks to argue in relation to that Decision in what we think is a sensible and convenient order.

12	The first ground to which we should refer is the ground which seeks to criticise the Tribunal’s rejection of Mr Fielding’s application that the Respondents’ Notice of Appearance should be struck out.  Mr Fielding tells us that he is not sure whether in express terms, as an alternative to a striking out order, he asked for an adjournment; but it is quite clear to us that the Tribunal considered an adjournment as an alternative because Mr Fielding asserts (and at least at this provisional stage it appears to us likely to be right) that he was complaining to the Tribunal that, as a result of the Respondents’ conduct in relation to the documentation which I shall describe in a moment, he and his wife were prejudiced in their handling of the case and were not ready to proceed on the next day, the Tuesday of the relevant week.

13	We have already recited the nature of the interlocutory order in relation to documents.  What at this provisional stage appears to have taken place thereafter is this.  Mr Fielding or his wife (it does not matter which) complied with the order, so far as they were concerned, by sending either a list of the relevant documents that they had or copies of those documents or both in good time but the Respondents, for their part, failed to do so.  

14	On 20 March Mr Fielding, because of this non-compliance, sent a letter to the Tribunal setting out what had happened and asking the Tribunal to take action; and there was communication from either Mr Fielding or the Tribunal or both with the Respondents.  

15	On 31 March the Respondents sent out two letters, one to Mr Fielding asking for copies of documents which, according to him, had already been sent to them and one to the Tribunal; but they still did not produce, for their part, their list of documents or a bundle of their documents.  

16	On 3 April Mr Fielding says that he sent out another list to the Respondents.  On 7 April, that is to say the Friday before the hearing was due to start on the 10th, the Monday, Mr Fielding faxed a letter to the Respondents complaining of their failure to abide by the Chairman’s order in relation to documents and advising them that he had applied to the Tribunal to debar the employers from defending.  He wrote to the Chairman of the Tribunal on the same day, whether by fax or not at this stage is not clear, setting out what had happened, namely that at 9:10 pm on the Friday evening he had received a bundle of documents.  He said that he does not work at weekends and has family commitments and had not been given a reasonable amount of time to read the bundle.  He pointed out that Mrs Fielding had complied with the order and the Respondents had not and that Mrs Fielding had thereby been disadvantaged and asked that the Respondents be debarred from defending.

17	At the outset of the hearing on 10 April, according to Mr Fielding, (and we make clear, of course, that at this stage we can only express provisional views and have only heard one side of this matter) the Tribunal suggested that Mr and Mrs Fielding should go into a room, look at the bundle which had been produced by the employers and work out what documents were there that they had not seen before.  At page 8 of our bundle is a manuscript piece of paper which Mr Fielding tells us is a list which he and/or his wife compiled while undertaking that exercise.  That list purports to demonstrate that a smallish number of documents which had been sent by Mrs Fielding or Mr Fielding to the employers had not found their way into the trial bundle and that a large number of additional documents which had not been seen before by Mr and Mrs Fielding had been added to it by the Respondents.  If this document at page 8 is right, then it would appear that well over 100 pages out of a total of 246 pages had been added.  

18	Mr Fielding tells us that he returned to the Tribunal, pointed out that this was the case and continued with his application that the Respondents should be struck out and with his argument that Mrs Fielding was seriously prejudiced by this very late disclosure of documents from the bundle.  We are not going to say anything separately about the documents that were taken out of the bundle because they were few.  No doubt Mr and Mrs Fielding were familiar with them and they could easily have been added back in.

19	It is clear that the Tribunal then decided that it would not strike out the Notice of Appearance and would not grant an adjournment.

20	Normally, an Appellant who comes to the Employment Appeal Tribunal complaining that the Employment Tribunal have failed to strike-out or to grant an adjournment in circumstances such as these, has a heavy duty to discharge in showing that there has been any error of law on the part of the Tribunal who, of course, have a very broad discretion in such matters.  However, unusually in this case, having heard the history and having seen that the history given to us by Mr Fielding appears to be supported by the contemporary documentation in the way which we have described, we have come to the conclusion that there is an arguable ground of appeal here and that Mr and Mrs Fielding should arguably, in the circumstances, not have been required to go ahead with the hearing on the following day, the Tuesday, when they had for the first time on the Friday night seen over 100 documents, some at least of which were relevant, so Mr Fielding tells us, to the complaints which were still in issue after the Tribunal had decided which complaints were out of time and which complaints were going to be allowed to proceed.

21	The Tribunal gave as one of its reasons for not striking out that if they had acceded to that application they would have had to have given the Respondents time to show cause why that application should not succeed under Rule 13 (3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993.  Rule 13 (3) provides that:

“Before making an order under sub-paragraph (d) of Rule 13 (2) [which includes an order striking-out a notice of appearance] the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made …”

It is clearly that part of Rule 13(3) to which the Tribunal was referring in paragraph 11 of its Decision; but Rule 13 (3) goes on to say as follows:

“… but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made.”

22	At this preliminary stage it seems to us at least to be arguable that the Respondents had an opportunity there and then on the 10th to show orally why an order should not be made and that the requirement for notice was not in such terms as to amount to a relevant or substantial consideration in the minds of the Tribunal in deciding not to strike out.  The Tribunal go on to say that Mr Fielding had the majority of papers anyway and that what he did not have was a numbered bundle.  He may have had the majority of the papers, we have not embarked on an exercise in counting; but clearly there were many pages and many of the documents, which he had not seen before the Friday night at 9:10 pm; and to say that what he did not have was a numbered bundle is arguably to understate the position, possibly in substantial measure.

23	For these reasons it appears to us, and we need not go further at this stage, that there is an arguable case that the Tribunal’s decision neither to strike out, nor to grant an adjournment, was a decision which could not properly have been made and for that reason we are going to allow this point to go through to a full hearing.

24	We have already indicated that Mr Fielding wishes in a number of respects to criticise the second Decision, ie the substantive decision.  It is at least a possible outcome of the full hearing of an appeal on the point with which we have just been dealing that the substantive hearing may have to start all over again.  We are not suggesting that would be the outcome or even that it is desirable, it is merely a possible outcome.  That being so, we take the view that it is better for us not to express any views on any grounds of appeal which might be put forward in relation to the second decision and, having explained the situation to Mr Fielding, we have discouraged him from advancing any of those grounds.

25	However, there are other grounds in relation to the First Decision with which we should deal.  Mr Fielding complains that the Tribunal had set aside five days for the hearing of the case as a whole but that on the 10th there was some discussion between the Chairman and Counsel for the Respondents, as a result of which it was agreed that the hearing would be over by Tuesday, ie by the second of those five days (although in fact it went partly into the third day).  Mr Fielding complains that this meant that the Tribunal did not give itself sufficient time to do justice to Mrs Fielding’s case.

26	We do not see any arguable ground of appeal in this respect.  The Tribunal had decided that only a small number of the totality of Mrs Fielding’s complaints were live; and, that being so, the time required to hear the substantive cases of the parties was plainly going to be considerably shorter than the whole of the five days which had been set aside to hear all of the allegations; and the Tribunal was entitled to assess or estimate the time which the hearing was going to take in the new circumstances.  Whether or not there were defects in the way at the substantive hearing did in fact take place is, as we have indicated, not a matter on which we propose today to embark.

27	Next, Mr Fielding argues that the Tribunal erred in allowing his wife only to proceed on the three matters to which I have referred, as set out in paragraph 9 of the First Decision.  He says that they should have heard all of those matters and that if they were out of time then the Tribunal should have considered that it was just and equitable to extend the time so that all of those matters could be heard.  

28	The Tribunal directed itself correctly to consider first of all whether the complaints said to be out of time part of continuing acts of discrimination and decided that they were not.  That decision is a decision on the facts and does not appear to us to have been successfully criticised to the extent that an arguable ground of appeal arises.

29	The Tribunal then, again correctly, went on to consider whether it was just and equitable to extend time and decided that it was not.  The same analysis applies to that decision.  They directed themselves correctly.  They asked themselves the correct question and we see nothing which enables us to say that there is arguably an appeal that could succeed in demonstrating to their decision on that issue was wrong.

30	Thirdly, Mr Fielding argues on his wife’s behalf that the Tribunal should, in any event, have admitted all of the previous matters in to evidence as part of the history and not restricted Mrs Fielding to evidence of general background and her complaints.  Mr Fielding says that all of her previous complaints, even if out of time, should have been allowed to be the subject of evidence so that they could have been investigated because they would have thrown light on subsequent complaints which were in time.  The Tribunal considered that and rejected it, it made the decision that we have described as to what was or was not admissible and in our view it did so correctly in law and there is no arguable ground of appeal against that either.

31	That exhausts the grounds of appeal put forward against the First Decision.  We are going to allow the appeal to go forward to a full hearing on the one issue to which we have referred.

32	We are making no decision at all upon the grounds of appeal in relation to the second decision which, if they ever become relevant, will have to be considered again hereafter.

33	What remains to be done is for us to categorise the appeal which is going forward and that is easy, it is clearly a category C appeal.  We must give a time estimate.  Because this is only a preliminary point to a much longer saga and because it is possible that, if this preliminary point goes in a particular way, the case as to substance may have to start all over again, it seems to us important, if possible, that the appeal which is going forward to a full hearing should be heard as soon as it can be.  It does not seem to us that it is likely to take very long.  We would have thought that it is unlikely to take more than an hour but, perhaps to be safe, we should put an hour and a half on it and have it listed for an hour and a half.