Appeal No.	EAT/0122/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MR B GIBBS

MR BROAD	APPELLANT

LONDON BOROUGH OF RICHMOND UPON THAMES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR J MARTIN
(a Friend)	

HIS HONOUR JUDGE PETER CLARK:

1.	This is an appeal by Mr Broad, the Applicant before the London (South) Employment Tribunal, against the decision of a full Tribunal sitting on 26 October 2000 under the Chairmanship of Mr R Peters, striking out parts of his claim against his former employer, the London Borough of Richmond Upon Thames.  That decision was promulgated with extended reasons on 8 November 2000.

2.	The material history is as follows.  The Appellant commenced employment with the Respondent on 16 July 1991.  He held the post of Housing Advice and Assessment Officer.  For present purposes we see that on 29 September 1999 he presented an originating application to the Tribunal complaining of unlawful deductions from wages/breach of contract, (the first complaint).  On 10 November 1999 he was dismissed.  On the 9 February 2000 he presented a further originating application, (the second complaint), alleging:

1)	Unfair dismissal, either automatically unfair dismissal for an inadmissible reason, namely making a protected disclosure, Section 103(a) of the Employment Rights Act 1996, or asserting a statutory right, Section 104; alternatively;

“Ordinary unfair dismissal contrary to Section 98 of the Act.”

2)	Disability discrimination contrary to the Disability Discrimination Act 1995.

3)	Unlawful deductions/breach of contract.   Both claims were resisted.

3.	At a pre-hearing discussion held before Mr Peters on 14 June 2000, the Chairman gave certain directions, contained in an order dated 30 June, (The June Order).  Material to this appeal were directions at paragraph:
1) 	Combining the two complaints

3) 	Requiring the Applicant to provide certain information by 21 July 2000.

4)	Service of a medical report on the Respondent by 25 August 2000, dealing with certain medical aspects of his discrimination claim.

At that hearing both parties were legally represented, the Applicant by his solicitor, Mr Lynas of Hodges Jones & Allen, and the Respondent by Counsel, Mr Jonathan Swift.  The Applicant or his advisers failed to comply with paragraph 3 of the June Order within the time specified.  On the 27 July, the Tribunal wrote to the Applicant’s solicitors pointing out the default, but received no reply.  A further letter was sent on 18 August, giving warning of a possible strike out and setting out the steps necessary under Rule 4(7) of the Employment Tribunal Rules of Procedure requiring the solicitors to give written reasons why a strike out order should not be made within 14 days of that letter.

4.	Again there was no response and the Chairman made a strike out order in respect of the whole of the second complaint on 6 September.  On 21 September the Applicant’s solicitors applied for a review of the strike out order on the grounds, amongst others, that they had not received the Rule 4(7) letter dated 18 August.  The Chairman considered that application and directed, by a letter dated October 2000, that the review application should be heard by a full Tribunal chaired by him.  The letter further directed that if the review application was successful and the original strike out order was set aside, particularly as to the claim of disability discrimination, the Employment Tribunal would go on to consider whether that part of the claim should be struck out for non-compliance with paragraph 4 of the June Order.

5.	That hearing took place on 26 October.  The Tribunal made the following orders:

	1)	The application for review was granted and the application heard.

2)	The original strike out order was varied so as the strike out only the claims of automatically unfair dismissal under Section 103(a) and 104 of the Employment Rights Act.  Those claims were directly connected with the information required to be supplied under paragraph 3 of the June Order, which directions had still not been complied with by the 26 October.

3)	The disability discrimination claim was struck out for non-compliance with paragraph 4 of the June Order, the supply of a medical report directed to certain issues arising in that claim.  

6.	It is against the orders that the claims of automatically unfair dismissal and disability discrimination be struck out that this appeal is brought.  In support of the appeal, Mr Martin appearing on behalf of the Appellant has referred to the six paragraph skeleton argument submitted originally for the purpose of this preliminary hearing by the Appellant himself.  It is there submitted that striking out parts of the combined applications denies the Appellant his right to natural justice, prejudices and denies him the right to fully present his case for unfair dismissal, denies him the right to present evidence that is relevant to his case and prevents him from mitigating his losses.  

7.	It is further submitted that the information required under paragraph 3 of the June Order was already available both to the Respondent and the Tribunal Service and finally, the Appellant complains that he should have been forewarned of the consequences of a failure to comply with the Tribunal’s June Order because the Tribunal Service was aware of the failing of his solicitors to comply with the Order.  In addition to those submissions, Mr Martin takes a point on article 6 of the European Convention on Human Rights.  He submits that by striking out parts of the Appellant’s claim, the Tribunal has denied him his right to a fair hearing of his civil claims.

8.	Dealing with those submissions, it seems to us that both as a matter of domestic procedure and consistent with the convention on human rights, domestic courts must have the power to take steps to enforce their interlocutory orders.  The ultimate sanction will be a strike out.  Looking at the particular history of this case as we have set it out, it seems to us that the Appellant and his advisers had every opportunity to comply with directions made at paragraph 3 and 4 of the June Order which were necessary in the interest of both parties to this litigation for the proper disposal of the case on its merits.  Of course it is right that by striking out the automatically unfair dismissal allegations and the complaint of disability discrimination, the Appellant is denied the opportunity to make those claims good on their merits.  

9.	However, the remedy is simple and in his hands, and that of his advisers, the two being indivisible for this purpose.  Comply with the directions.  There was a manifest failure to do so and these circumstances it seems to us that both as a matter of convention law and of ordinary domestic law the Tribunal was perfectly entitled to make the strike out orders that it did following the hearing on 26 October 2000.  In these circumstances, we have concluded that this appeal raises no arguable point of law to go forward to a full hearing and consequently, it must be dismissed.