Appeal No. EAT/1363/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS M T PROSSER
MR J R RIVERS CBE

MR A WIGGLESWORTH	APPELLANT

SUFFOLK COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

_____________________________________________________________________________

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant 	

JUDGE PETER CLARK

1	This is an appeal by Mr Wigglesorth, the Applicant before the Bury St Edmunds Employment Tribunal, against a Decision of that Tribunal chaired by Mr B G Mitchell, promulgated with Extended Reasons on 14 October 2001, striking out his claim of victimisation contrary to section 2 of the Race Relations Act 1976, against his employer, the Respondent Suffolk County Council, under Rule 15(2)(c) Employment Tribunals Rules of Procedure 2001 (the 2001 Rules).  A subsequent application for a review of that Decision was dismissed by the Chairman under Rule 13(5) of the 2001 Rules by a Decision dated 24 October 2001.  

Background
2	At all relevant times the Appellant was employed by the Respondent in their Fire Service.  He has been a firefighter for more than twenty years.  

3	In 1996 he applied to join the Strathclyde Fire Brigade in Scotland.  He was not called for interview.  He considered that his non-selection for interview amounted to unlawful discrimination on racial grounds.  He is of English nationality/ethnic origin.  He presented a complaint of discrimination under the 1976 Act to the Glasgow Tribunal against the Strathclyde authority.  

4	Before that case was finally heard on 6 January 1998 Assistant Firemaster Coke of the Strathclyde Fire Brigade wrote to the Respondent’s then Acting Chief Fire Officer, Malcolm Alcock, on 20 June 1997.  In that letter Mr Coke asked Mr Alcock to discuss with the Appellant his conduct in regularly telephoning and writing to staff at Strathclyde about the progress of his case and seeking information from Strathclyde employees and to request that all future requests be channelled through the Appellant’s legal representatives.  

5	It seems that no action was taken by the Respondent on that letter at the time.  It was put on the Appellant’s personnel file and remained there until it was removed at the request of the Appellant after he saw it, for the first time, on his file on 21 July 2000.  

6	In the meantime two events, relied on by the Appellant in his present case, unfolded.  First, a deduction was made from his salary in June 1998 in respect of sick pay which he had received from the Respondent.  It turned out that it should not have been deducted.  The Respondent admitted their mistake and credited it to his account.  As a result his complaint of unlawful deductions from wages to the Tribunal was conceded by the Respondent.  That concession is recorded in a Decision of a Chairman, Mr Ash, sitting at Norwich on 11 November 1998.  The Decision is dated 23 November 1998.  

7	Secondly, he achieved twenty years service on about 4 October 1998.  Normally that milestone in the Fire Service is marked by a long service and good conduct medal.  The Appellant did not receive his medal.  It was withheld, say the Respondent, because he was at that time the subject of disciplinary proceedings.

8	On 13 October 2000 he presented the present complaint of victimisation to the Tribunal.  He alleged that:
(1)  placing the Strathclyde letter on his personnel file (the file point)
(2)  making the unlawful deduction from his wages (the deductions point)
(3)  not giving him his long service and good conduct medal (the medal point)

were, to adopt the scheme of section 2 of the 1976 Act, acts of victimisation on the part of the Respondent by reason of his having done a protected act, namely bringing proceedings under the Act against another person, Strathclyde (section 2(1)(a) ).

9	The claim was resisted.  In particular, by their Notice of Appearance, the Respondent denied any causative link between the deduction point and the medal point and his proceedings brought against Strathclyde.  They contended that there was nothing in the file point.  

10	The Appellant sought to add a number of further allegations to his Originating Application, but permission to do so was refused.  

11	A pre-hearing review (PHR) was held in this case before a Chairman, Mr Crome, on 9 February 2001.  Having considered the pleadings and oral submissions, that Chairman expressed the opinion that the claim had no reasonable prospect of success and ordered the Appellant to pay a deposit of £150, which he duly did.  At the same time directions were given for the substantive hearing of the claim.  

12	On 16 July 2001 the 2001 Rules came into force.  They applied from that date to proceedings then in train.  See Regulation 14 Employment Tribunal (Constitution etc) Regulations 2001 (the Regulations).

13	Alterations to the previous, 1993 Rules, now contained in the 2001 Rules, owe much to Lord Woolf’s reforms of the civil justice system leading to the CPR.  Thus, Regulation 10 of the Regulations formally introduces into Tribunal procedure the overriding objective there set out, in particular the principles of saving expense, proportionality, equality of arms and the fair and expeditious disposal of cases.  

14	Significantly, for present purposes, the Tribunal’s power to strike out claims was extended to include claims, or defences, which are ‘misconceived’, that is, having no reasonable prospect of success (Rule 15(2)(c) ).  The 1993 Rules did not permit of a strike out on this ground.  Care First Partnership Ltd -v- Roffey [2001] IRLR 85 (CA).  

15	Rule 15(2)(c) finds a resonance in the Summary Judgment provisions of Part 24 CPR.  The Court may give summary judgment on the whole or part of a claim where it considers that the claimant has no real prospect of succeeding on the claim or an issue in the claim.  The Court is not required to conduct a mini-trial on an application for summary judgment.  Swain -v- Hillman [2001] 1 AER 91.   Such applications may be determined on written evidence.  See Part 24 P.D.  

16	In these circumstances the Respondent applied to strike out the claim under Rule 15(2)(c).  It was that application which came before Mr Mitchell’s Tribunal on 20 September 2001.  The Tribunal had before them witness statements from the witnesses whom the Respondent intended to call at the substantive hearing, then fixed for 22 October 2001.  The Appellant indicated that he did not intend to give evidence in support of his complaint, but instead proposed to take the Tribunal through nine hundred pages of documents.  The Tribunal considered the submissions of the Appellant in person and Counsel for the Respondent, Mr Wallington.

17	The Tribunal considered the new Rules.  They acknowledged that striking-out a claim was a draconian measure; they did not feel bound by the opinion expressed by Mr Crone at the PHR; they acknowledged, by reference to the speeches in the House of Lords in Anyanwu -v- South Bank University [2001] ICR 391, a strike-out case under the 1993 Rules, that discrimination cases were particularly fact-sensitive.  Nevertheless they concluded that this claim had no reasonable prospect of success; it was misconceived and should be struck out, for these reasons:

(1)  the file point.  They thought that this ‘stand alone’ point did not have any chance of success.  The letter was placed on his file, which was open to inspection by him.  We are bound to say, that is what tends to happen to letters.  They are put on a file.  Applying the guidance of the House of Lords in Chief Constable of West Yorkshire Police -v- Khan [2001] ICR 1065 it is difficult to see how putting the letter on the Appellant’s file was by reason of his having taken proceedings against Strathclyde as opposed to simply storing the letter on the appropriate file.

(2)  The deductions point.  The Tribunal referred to the Respondent’s witnesses’ explanation for that unlawful deduction from wages.  Their case is summarised in the Notice of Appearance.  The deduction in respect of sick pay was initially made because it was thought that the Appellant had contributed to an injury which he received at work by his own behaviour.  It then transpired that the Fire Service had failed, in breach of their own conditions of service, to obtain a medical opinion.  So they repaid the money.
Further, the Tribunal concluded that there was no real prospect of the Appellant showing this deduction was motivated, consciously or subconsciously, by the fact that he had brought discrimination proceedings against the Strathclyde Fire Brigade.  

(3)  The medal point.  Similarly, the Respondent withheld the Appellant’s long service and good conduct medal because of pending disciplinary proceedings.  That had nothing to do with his earlier proceedings against Strathclyde, or the letter written in June 1997 by Mr Coke, languishing on the Appellant’s personnel file after no action had been taken upon it at the time.  

18	The claim was struck out and an Order for costs in the Respondent’s application, assessed at £3,500, was made against the Appellant.  

The Appeal
19	In this appeal the Appellant is represented by Mrs Aisha Khalaf, a solicitor.  In the interests of economy she has asked us to deal with this case at this preliminary hearing stage on written submissions.  We have done so, those submissions having been lodged under cover of a letter dated 3 May 2002.  

20	The thrust of the submission is that the Tribunal wrongly exercised its discretion to strike out the complaint.  Reference is made to the well-know Wednesbury test which we accept applies in this appeal.  See Carter -v- Credit Change Ltd [1979] ICR 908, 918, per Stephenson LJ.  Our jurisdiction is limited to correcting errors of law.  We cannot simply review the Tribunal’s exercise of discretion de novo.  

21	In our judgment the submissions advanced in support of the appeal do not come close to making out any arguable grounds which ought to proceed to a full appeal hearing.  The Tribunal took into account all relevant factors and did not take into account irrelevant factors; they were particularly struck by the inherent unlikelihood of the Appellant, who did not propose giving evidence himself, establishing the necessary causative link between either the deduction from wages in respect of sick pay or the failure to award him a long service and good conduct medal and his earlier proceedings brought against a different authority, Strathclyde.  The explanation for these events proffered by the Respondent was, the Tribunal thought, adequate and credible.  As to the placing of the letter itself on the file, we return to the House of Lord speeches in Khan.  The allegation here is not that Strathclyde victimised the Appellant by writing to the Respondent; nor even that the Respondent took action on the request contained in that letter; it is simply that they placed the letter on the Appellant’s file without showing it to him (although the file was available for inspection).  It is necessary only to state this part of the complaint to see why the Tribunal thought that it had no chance of success.  

22	In these circumstances we have concluded that this appeal raises no arguable point of law and must be dismissed.  For the avoidance of doubt, although not raised specifically in Mrs Khalaf’s written submission, having considered the Appellant’s grounds of appeal contained in his Notice, we are satisfied: 
(1)  that no error of law arises from the Chairman’s Decision to summarily dismiss the Appellant’s review application.  Although thirty six pages long it is an attempt to re-argue the case.  It does not disclose any ground for review.

(2)  The costs Order was permissibly made in the light of Rule 14(1) & (7) of the 2001 Rules.