Appeal No. EAT/471/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 July 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MS G MILLS

MRS S ROWLAND	APPELLANT

TRANSPORT & GENERAL WORKERS UNION	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	Mr J Bowie
Representative	

MR JUSTICE LINDSAY (PRESIDENT) 

1	We have before us as a preliminary hearing the matter of Susan Rowland v Transport & General Workers Union.  The Applicant is Susan Rowland and she has appeared today by a friend, Mr Bowie.  

2	On 17 December 1999 she lodged an IT1 for unfair dismissal.  She complained inter alia that she had lodged a disciplinary appeal but had not been told of its outcome.  On 3 February 2000 the union put in its IT3; it set out circumstances in which it said that it had concluded that Mrs Rowland had been guilty of gross misconduct.  It added that she had been informed about the result of her disciplinary appeal, namely that it had been turned down, by a letter of 23 December 1999 which, of course, was after her IT1 of 17 December 1999.

3	There have been a number of interlocutory skirmishes, to call them that; for example on 18 January of this year,  there was a hearing in relation to Mrs Rowland’s request for a Witness Order.  On 24 January the Decision in relation to that hearing was sent to the parties.  It was a Decision of the Tribunal at Manchester, Mr Leahy sitting alone, and the Decision of the Tribunal was that the Applicant’s request for Witness Orders was adjourned and would be heard by a Tribunal Chairman on 30 January 2001.  In paragraph 9 the Chairman said:
“Finally, the applicant’s representative says, with some force, that this case is listed  for one day, which will not be sufficient.  I have therefore decided to:
(i) postpone the full hearing from Tuesday 30 January 2001 to a date to be fixed;”
and this is more important for immediate purposes:
“(ii) to hold on Tuesday 30 January 2001, at 10 am a Pre-Hearing Review under Rule 7;
(iii) to hold on Tuesday 30 January 2001 at 10.00 am a Directions Hearing, when a time estimate can be resolved and dates for the hearing be fixed.  (I would expect that the case will be listed to be heard somewhere between 1 March and 31 July 2001); and
(iv) to hear inter partes, the application for Witness Orders in respect of Sharon Withes and Fay Hey, on 30 January 2001.”

4	So from 24 January, when that was sent to the parties, the parties would know that at 30 January that Rule 7 was going to be looked at and possibly ruled under, and that requires us to look at Rule 7.  Rule 7 says, amongst other things, at 7(4):
“If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.”

I might add that that £150 has since been increased, I think it is to £500, but £150 is the figure that we are concerned with in this case.  Sub rule (5) says that:
“No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit”

The sub rule (7) provides for the case if the money is not paid; happily, in the case before us, Mr Bowie has told us that that the sum has been paid, so that we do not need to look at that, but there is an important sub-rule (9):
“No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application”

5	So whatever body of people, in this case just one person, rules that a deposit is appropriate, automatically disbars himself or herself from sitting at the full merits hearing.  So that was the position as at 24 January;  Notice was given that on 30 January there would be a pre-hearing review under that Rule 7.

6	Then, coming forward to 30 January, the Chairman sitting alone ruled on the question of whether there should be a Rule 7 deposit and on 7 February the Decision was sent to the parties. Again it was a decision of Mr Leahy, sitting alone, and it was:
“The decision of the Tribunal is that the applicant’s claim of unfair dismissal has no reasonable prospect of success and she is ordered to pay a deposit of £150, within 21 days, as a condition of being allowed to proceed further with it.”

7	That was followed by a Notice of Appeal from Mrs Rowland on 13 March of this year.  It is directed only to the Decision of 7 February 2001.  Mr Bowie, in course of argument, has moved, at points, on to other issues but the Notice of Appeal, quite properly, is directed only to the question of the hearing or Decision of 30 January, sent to the parties on 7 February, and relating to the deposit of £150.  

8	It has to be remembered that from 24 January, notice was given that the hearing of 30 January could involve a Rule 7 scrutiny.  When a ruling under Rule 7 is made for the payment of a deposit, it is quite plain that that represents no final, concluded or irreversible view by the Employment Tribunal that the case is bound to fail if it goes forward.  The panel, as we have seen from the Rule, that hears the full merits hearing, cannot include anyone who heard the Rule 7 hearing, so that one gets a different panel for the full hearing.  

9	Moreover, the full hearing is, of course, likely to hear argument, and, in particular, hear evidence which had not been given, or was not even perhaps available at the time of the Rule 7 hearing.  Moreover, the rules provide that if the money is paid then the case goes forward, and of course, the Rules would not provide that the case could go forward if some irreversible and final decision had already been made.  The Notice of Appeal has to be examined with that background of the Rules in mind.  

10	The Notice of Appeal seems to hint that the Rule 7 deposit should not have been ordered on 30 January for want of sufficient notice having been given that that would be a subject to be dealt with on 30 January, but that seems to us to be groundless, given that we have seen the earlier reference to Rule 7 being a matter to be dealt with on 30 January and that having been sent to the parties on 24th.  
11	Next, the Notice of Appeal goes to the Appellant’s view of the merits of the underlying case, but we have to emphasise that no full view of the merits has been taken yet by the Employment Tribunal, and that when it comes to take a full view of the merits of the case it would be a view taken by persons not involved in this earlier Rule 7 hearing.  

12	The Appellant says, in paragraph 5 of the Grounds of Appeal, as follows:
“The Appellant is entitled to a fair hearing of her application in her own rights as an individual, in accordance with the Human Rights Act, and the principles of Natural Justice.  She considers that the Manchester Employment Tribunal has predetermined her case without hearing and considering the substantive issues regarding her dismissal.  She therefore requests the Employment Appeal Tribunal to consider and judge on the handling of her Application by the Manchester Employment Tribunal and in particular, the request that she submits a deposit of £150, which she had done, pending a decision on whether to pursue the case following the hearing of this Appeal.”

If she has paid the deposit (and we are told that she has and we have no reason to believe that she has not) then, of course, she will be entitled to go forward to a fair hearing and it will be a hearing as we have mentioned, more than once, before a panel that does not include anyone who had been concerned in the hearing of the Rule 7 deposit part of the case.  

13	The Tribunal, as it seems to us, did look into the ability of the Applicant, Mrs Rowland, to pay.  In the very last paragraph of the Decision which is under appeal, the Chairman says:
“As far as her circumstances are concerned after a period of unemployment she is now in work and I am told she is earning £150 per week net.  She continues to live with Mr Bowie in a house which he owns.  He is also in work and they pool their resources.  I am satisfied that the applicant can meet a deposit in the maximum of £150 and she must pay that as a condition of proceeding further with her claim.”

So that the Tribunal did do what is required of it; it looked into the means of the prospective payer, and, doing the best he could on the information that was laid in front of him, he determined that she could pay the £150; it seems no error of law is visible in that part of the case.  

14	Mr Bowie says that the underlying decision that the Applicant’s claim of unfair dismissal has no reasonable prospect of success is so flawed as to be perverse.  One has to have in mind what a very difficult allegation it is - the allegation of perversity.  The allegation, in order to succeed, would have to be that no Tribunal, properly instructing itself, could have come to the decision that the Applicant’s claim for unfair dismissal had no reasonable prospect of success.  That is a very stern burden, a heavy one, and we do not feel able to agree that it has been satisfied in this case.  To say merely that the Decision is perverse does not, of course of itself, prove perversity.  One can only prove perversity by a detailed examination which, in a sense, at this preliminary stage would be inappropriate, but looking at the matter as broadly as we can at this stage, we do not feel able to decide that the Decision in that respect was perverse.  

15	We can only overturn the Decision sent to the parties on 7 February if it involves error of law.  We have to be able to find some part of the case not dependent merely on fact, but which points to some error of law.  Doing the best we can to look at the case through Mrs Rowland’s eyes, we have not been able to find any error of law.  

16	The basic complaint of Mrs Rowland behind everything is that here the Tribunal at Manchester has already made up its mind and that therefore any further hearing would be prejudiced against her.  But, as we have emphasised more than once, the full merits hearing will not include anyone who has dealt with the matter at the Rule 7 stage and to that extent Mrs Rowland has no ground for what is, as it seems to us, her principal fear.  She will get a fair hearing from a body of people who do not include anyone who has heard it at the Rule 7 hearing.  Accordingly, finding no error of law in the Tribunal’s Decision, we must dismiss the appeal.