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Appeals under rule 3(10), against striking out of various claims made by the claimant concerning alleged disability discrimination and protected disclosure and involving consideration of case management. A full hearing was directed to deal solely with the strike out of the protected disclosure claim.Appeal No. UKEATPA/0414/09/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 18 March 2010
HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)
MR G CAFAGNA (APPELLANT)
1) ISS MEDICLEAN LTD; 2) ISS FACILITY SERVICES LTD;3) ISS UK (RESPONDENTS)
UKEATPA/0731/09/DA & UKEATPA/0033/10/DA
MR G CAFAGNA (APPELLANT)
1) ISS MEDICLEAN LTD & Others (RESPONDENTS)
Transcript of Proceedings
RULE 3(10) APPLICATION – APPELLANT ONLY
For the Appellant
Written submissions by the Appellant
PRACTICE AND PROCEDURE
With one exception, the orders respectively dismissing and striking out the Claimant's numerous claims were correct. The issue relating to his PIDA claim cannot be resolved without further reasons of the Employment Judge and will go to a full hearing. See para 32.
HIS HONOUR JUDGE McMULLEN QC
1. This case is about Employment Tribunal procedures in the disposal of claims which include disability discrimination and protected disclosure in the public interest (PIDA). I will refer to the parties as the Claimant and the Respondents.
2. These are appeals by the Claimant in those proceedings against judgments of four Employment Tribunals sitting at Brighton registered with reasons on different dates. Usually the Claimant put his submissions in writing and did not attend. The Respondent when it did was represented by a solicitor.
3. The Claimant made a very substantial number of claims in six claim forms. The Respondents serially denied liability. The issues relevant to the applications made today concern case management. The outcome is that all the claims have been rejected, using that term in a neutral sense. The Claimant appeals and these have been dealt with by different Judges in the EAT.
4. In Haritaki v South East England Development Agency EATPA/0006/08 at paras. 1-13 I set out my approach to hearings under rule 3. It should be read with this judgment. On the sift of these Notices of Appeal in accordance with Practice Direction 2004 para. 9, Underhill P (once) and HHJ Peter Clark (twice) exercised their powers under rules 3(7) and 3(8). Each concluded on paper that the respective appeals disclosed no grounds for bringing an appeal and in one respect came close to an abuse of the process. The Claimant was given the opportunity to submit a fresh Notice of Appeal, and has done so in one case, or to have a hearing under rule 3(10), which is what now occurs. He declines to attend and has sent written submissions, as is his right.
5. The adjectival legislation is found in the Employment Tribunal Rules 2004. Rule 10 gives very substantial case management powers. Rule 18 provides for the striking out of a claim where there has been non compliance with an order or a Practice Direction: see rule 18(7)(d). Notice requirements are imposed before that step is taken under rule 19. Under rule 27, a hearing may be conducted, and a Tribunal at a hearing where a party fails to attend or be represented may under rule 27(5) dismiss or dispose of the proceedings in their absence or may make such order as it sees fit. Reasons must be given in accordance with rule 30 covering a range of matters including setting out the facts and the relevant law. Generally speaking a PHR under rule 18 is conducted by a Judge alone. A full Tribunal may be called if a Judge so decides.
6. The substantive legislation is not at this stage in dispute. The PIDA 1998 insertions into the Employment Rights Act 1996 outlaw acts taken against a person who has made a disclosure in the public interest. Unfair dismissal is provided for under that regime by s.103 and in ordinary circumstances by s. 98, and disability discrimination is made unlawful by the DDA 1995.
7. Appeals to the EAT lie on questions of law only and there is a 42 day time limit for lodging an appeal. PA/0623/09/DA against a judgment of an Employment Tribunal on 7 April 2009 was determined by the Registrar on 11 August 2009. She ruled it was out of time and the Claimant took no steps to appeal against her ruling.
8. The determination of appeals in this court is in accordance with s. 28 of the Employment Tribunals Act 1996. The default position is that where a judgment has been made by an Employment Judge sitting alone, a Judge of the Employment Appeal Tribunal will hear the case alone unless that Judge decides for particular reasons that the case should be heard by a court of three. Where the Employment Tribunal was constituted as a panel of three a panel of three must be constituted here.
The legal approach
9. I make some general observations in response to the very careful arguments addressed by the Claimant.
10. First, I acknowledge that the Claimant is a litigant in person and is entitled to a generous audience at the Employment Tribunal and here. However, as has been noted by Employment Judges and Judges at the EAT, the Claimant is now highly experienced in employment procedures. I observe from his prose style that he is an articulate and sophisticated grammarian. For instance, he makes criticisms of an Employment Judge for adopting a hermeneutic approach and seeks to develop an argument based on laches. He is plainly well read in the relevant authorities, either citing them or paraphrasing them accurately. To be clear, I would have thought a hermeneutic demarche is a sine qua non in a Judge. Anyway I have been shown no application to an Employment Judge of the equitable doctrine of laches generally available against a party in bipartisan proceedings, as the classic statement of Lord Selborne makes clear in Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239.
11. The second general observation is that the Claimant contends that he has been dealt with unfairly. This falls into two categories. The first is a plea that his case was not heard by a panel of three but as I have pointed out, rule 18 provides for a PHR to be conducted by an Employment Judge alone and there is no error of law when a Judge does so sit. Secondly, the Claimant contends that in proceedings invoking discrimination, the public interest cries out for determinations to be made at a full hearing on full examination of the facts. Yet that does not shoulder out of the way the case management requirements in discrimination cases and the right of parties to have issues determined in case management at an interim stage under rule 18; nor does it mean that rule 27 is set aside. And as Judge Clark points out in the proceedings with which he was dealing, the Claimant did not attend. That means that a hearing took place in accordance with the rules, the Respondent was heard and Judgment was given. There is nothing unfair about that as the Claimant volunteered not to attend the Tribunal.
12. With those observations in mind I will give a short chronology. The Claimant was engaged by the Royal Sussex County Hospital in Brighton as a hygiene operative in 2002 and continued to work there until 14 May 2008 when he was dismissed following a good deal of absence. The Claimant contends that his treatment is unlawful contrary to the DDA and followed PIDA disclosures. He launched six claim forms. There has been a number of proceedings before different employment tribunals but so far as is relevant to today I identify the following. I will use the hearing date as the principal shorthand for identifying the various appeals.
13. The first was 18 July 2008 before Employment Judge Emerton. The order was sent to parties on 25 July 2008. At this hearing orders were made for the conduct of the substantial number of claims the Claimant was there making. The Claimant was in person and a consultant represented the Respondent. The claims fell into six categories corresponding to different provisions of employment protection. Orders were made for the further transmission of the Claimant's case, which included the extraction of further particulars relating to the Claimant's disability and protected disclosure claims and including submission to medical examination. Very detailed orders were made for the exchange of evidence. Attached to the order was a notice that a failure to comply with any requirement in the order might result in the claim being struck out in whole or in part.
14. The second proceeding took place at Brighton on 13 February 2009 before Employment Judge Cowling. This resulted in an order made on 14 February 2009. He struck out the Claimant's PIDA and DDA claims for failure to comply with the 25 July 2008 order. The grounds were these:
"2. The Tribunal found the following facts provided after considering the documents and the submission made on behalf of the Respondent by Mr Moon. The claimant did not attend the hearing and the Tribunal has considered written representations made by the claimant.
3. The parties were present at a Pre-hearing Review held by a differently constituted Employment Tribunal held at Brighton on 18 July 2008. Having heard the Claimant in person and Mr Moon on behalf of the Respondent company a comprehensive Case Management Order was made with the assistance of the parties the issues ere identified and direction were given."
15. The Judge determined that the Claimant had failed in breach of the orders to provide the information or the details as appropriate. No further reasons were given. The Judge noted that the strike out of those claims under rule 18(7)(e), that is failure to comply, did not affect other claims which were to be determined at a hearing on 22 April 2009.
16. The strike out resulted in an appeal number PA/0414/09. This was considered on the sift by the President on 13 May 2009 and he gave the following opinion:
"As to paragraph 10
1. I accept that at paragraphs 4-6 of his written Representations the Appellant responded to the allegations that he was in breach of orders B1, B4 and B5 of 18.7.08. It is regrettable that the Judge did not refer to those paragraphs and explain, in however summary terms, why he did not regard them as a sufficient answer. However, that failure would not render his decision bad in law if the reason is in fact plain and/or the decision was incontestably right. I believe that to be the case.
2. As regards the breach of B1, the points made in paragraph 6 and the correspondence there referred to (I do not in fact appear to have all the relevant correspondence) are difficult to disentangle; but they are not capable of justifying the undisputed fact that five months after the original deadline the Appellant had still not produced a medical report on the disability issue, which was necessarily fundamental to the disability discrimination claim. If the Appellant claims that it was impossible to obtain a report because the Respondents would not agree the terms of a letter of instruction, the (incomplete) materials supplied do not demonstrate that: I see no reason why, in the absence of agreement (if it was indeed being withheld) the Appellant should not have proceeded with his own proposed version.
3. As regards the breach of B4, the general statement in paragraph 7 of the Written Representations that it was "impracticable" to provide the particulars and statement is neither an explanation nor a justification of the non-compliance. They are fundamental to the disability discrimination claim, and if they could not be provided after seven months the dismissal of the claim was inevitable. NB that this would be so even if the failure to produce a medical report could be justified.
4. As regards the breach of B5, the bare list of dates in the Appellant's letter of 15.9.08 does not begin to comply with the requirements of the order. Full details of the disclosures relied on are fundamental to a claim of this character.
As to paragraph 11
Most of the sub-paragraphs under this paragraph do not appear to relate to the basis on which the claim was struck out, i.e. breach of orders B1, B4 and B5. Insofar as they do, 1 have dealt with the essential points above."
17. The Claimant expressed dissatisfaction with that opinion. The matter came before Bean J, who on 29 July 2009 vacated the rule 3(10) hearing which had been listed for 4 August. It had been listed before me and I had read the papers. He decided that the application under rule 3(10) should await the outcome of the Claimant's appeal in PA/0623 (wrongly cited here as 0626/09) and the outcome of a further appeal in PA/0731/09. As will become clear that was with respect prescient of Bean J.
18. The extension of time application has been disposed of without further action but the reference to PA/0731/09 is to a third set of Employment Tribunal proceedings. These occurred at Brighton on 22 April 2009 where a three-person Tribunal chaired by Employment Judge Emerton conducted a hearing on a preliminary issue. This is different from a PHR under rule 18 and it represents a full determination of the relevant issues. The Respondent was represented and the Claimant did not attend. The outcome was an order sent to parties on 7 May 2009 and Reasons, issued at the request of the Employment Appeal Tribunal, sent to parties on 22 September 2009. The outcome was that there was to be a further PHR to be conducted by a different judge from Employment Judges Cowling and Emerton to hear further matters relating to disclosure. The Claimant sought to have matters transferred away from Brighton but that was taken no further.
19. The judgment on the preliminary issue was that the Claimant chose not to co-operate with the Tribunal in hearing his case. The Tribunal was in no doubt as to the knowledge of the Claimant about the proceedings and what steps he was required to take. He indicated, as reported by the Tribunal, that he did not wish to attend any further hearings in the Southampton region of the Employment Tribunals. The case went ahead on the issue of whether the Claimant was disabled. The Tribunal came to this conclusion:
"12. The Tribunal agreed with Mr Moon's submissions. The burden of proof is upon the Claimant to prove that he had a disability under Section 1 of the Disability Discrimination Act 1995, and the claimant had provided no evidence in support of his assertion. The ET1 claim form, received on 2 August 2008, did not provide the details of the Claimant's disability, other than asserting that the claimant had suffered from depression. Although the Tribunal took the claim form into account, it was of very little evidential value. In the circumstances, the Tribunal unanimously reached the conclusion that it could not be satisfied, on a balance of probabilities, that the claimant has, or had at the relevant time, any disability for the purposes of the Act."
20. The Claimant was dissatisfied with that Judgment and launched an appeal. That become PA/0731/09. It came before Judge Clark on the papers and he issued an opinion on 11 November 2009 in which he summarised the position as follows:
"(1) At a Pre-Hearing Review held on 13 February 2009 Employment Judge Cowling directed (Order dated 19 February, paragraph 3) that a PH be held before a full Tribunal sitting on 22 April in order to determine, in Employment Tribunal Case No. 3102958108, whether the Appellant was disabled within the meaning of S/DDA.
(2) The Appellant appears to have received a copy of that Order (his present grounds of appeal, paragraph 7 (iii).
(3) By an Order dated 7 May and re-sent to the parties on 20 May 2009 a full Employment Tribunal chaired by Employment Judge Emerton dismissed the disability discrimination claim in ET3102958, following the Pre-Hearing Review held on 22 April.
(4) Against that Order the Appellant brings the present appeal (PA10731/09/DA).
(5) Employment Judge Emerton has now provided Written Reasons for the Employment Tribunal's Order under appeal. They are dated 22 September 2009.
(6) Having read those reasons 1 am of the opinion that this appeal has no reasonable prospect of success for the following reasons;
(a) The Appellant knew of the 22 April hearing and its purpose, but chose not to attend despite receiving a telephone [call] from a member of the Employment Tribunal staff that morning.
(b) He had not provided a witness statement, as directed by Employment Judge Cowling on 13 February.
(c) His disability claim was not struck out. He failed to advance any evidence in support of his contention that he was disabled and the Employment Tribunal proceeded to hear and determine that issue as they were entitled to do under Employment Tribunal Rule 27(5).
(d) Fairness applies to both parties. The Respondent had attended on 22 April ready to dispute the disability issue; the Appellant chose not to attend, without providing any adequate reason (ET Reasons, paragraph 7). In these circumstances the Employment Tribunal acted proportionately in proceeding with the hearing."
21. The Claimant expressed dissatisfaction and launched a fresh Notice of Appeal, which, as is the practice at the EAT, was referred to Judge Clark. His opinion on this fresh Notice of Appeal was as follows:
"The fresh Notice of Appeal does not address the principal point raised in my opinion contained in letter dated 11 November 2009; namely, the Employment Tribunal did not strike-out the disability claim. It proceeded to hear and determine the issue of disability in the (voluntary) absence of the Appellant. The general complaints do not amount to an arguable case of procedural irregularity.
1 see no reasonable prospect of this reconstituted appeal succeeding."
22. The next proceedings at the Employment Tribunal occurred on 16 November 2009 this time before an Employment Tribunal chaired by Employment Judge Bridges. The unanimous judgment there, the Respondent being represented, was this:
"The Claimant failed to attend or be represented at the hearing. The Tribunal considered the information in its possession. The claims against each of the Respondents are dismissed under rule 27(5) and (6) schedule 1 of the Regulations."
23. That judgment was sent to the parties on 3 December 2009. It too caused the Claimant to appeal: PA/0033/10. It came before Judge Clark on 26 January 2010 and he gave his opinion under rule 3(7) in the following way:
"The Appellant failed to attend a hearing on 22 April 2009 and his disability discrimination claim was dismissed by an order dated 7 May, for reasons given on 22 September (see PA/0731/091DA).
On 16 November a further hearing was held. Again the Appellant did not attend. As appears from the Employment Tribunal Judgment dated 3 December the remaining claims were dismissed under Rule 27(5) and (6) after the Employment Tribunal considered the information before it.
The Appellant, although now familiar with the Employment Tribunal procedure, has not requested reasons (his e-mail to EAT dated 11 January 2010). He provides no arguable grounds of appeal raising any point(s) of law which might engage the Employment Appeal Tribunal's jurisdiction.
His failure to attend hearings smacks of an abuse of process."
24. Against that opinion the Claimant contends that there are reasonable prospects of success.
25. I have considered the written submissions made by the Claimant about all the orders which have been made. Giving my own view in the light of this additional material, I agree with the judgments given by Judge Clark on the occasions which I have cited. I myself see no reasonable prospect of success in any of the points the Claimant wishes to raise. His central allegations as to unfairness and procedure simply have no merit. The various employment tribunals were constituted in accordance with the Employment Tribunals Act and decisions were made at various stages in accordance with the 2004 Rules whether they be for striking out or on the merits at a hearing, albeit in the absence of the Claimant. There is no basis for the procedural attacks in these cases.
26. The Tribunal's substantive judgment that the Claimant has not proved that he has a disability is one that was open to it. The Tribunal was correct in noting the submission of the Respondent that the obligation is upon the Claimant to prove a disability and he has failed to do so. Principally he has failed to do so by his failure to observe the orders of the Employment Tribunal and I see no basis for a successful appeal in respect of those judgments.
27. I then turn to the order made by Bean J which was to put on hold what became PA/0414/09. This is the appeal against the strike out handled here by the Underhill P. The reason I consider Bean J was prescient in deciding that the outcome should await determination on PA/0731/09 is because it is that Judgment which determines, finally, against the Claimant as having a disability.
28. The substance of the appeal on PA/0414/09 is the strike out of the DDA and the PIDA claims. I have decided that there is no reasonable prospect of success in challenging the strike out of the DDA claim. I do so for the reasons given by the President and for one other reason. I agree with his diagnosis that fundamental to the Claimant's claim were particularisation of the matters set out in the order, which he was capable of doing without medical evidence, and submission to a medical report. He has become argumentative with the Employment Tribunal and indicated issues to do with practicability; but whatever may have been the substance of his disagreement with the Respondent as to the medical report, particularisation of the issues was in his hands and he did not do it. A Tribunal must regulate the conduct of its proceedings. It has done precisely what the Court of Appeal envisaged the Tribunal doing in Hendricks v the Metropolitan Police Commissioner  EWCA Civ 1686;  IRLR 96, which is carefully to plan the opening stages and preparation of complicated discrimination cases. It has done so without the assistance of the Claimant, and I agree with the President's approach.
29. However, if we are both wrong about that, what is more important, it seems to me, is what Bean J envisaged and that is that the Claimant's DDA claim is over: he failed to prove a disability. Whatever interim steps were taken by the Employment Tribunal, they all fall away. His claim for disability discrimination was struck out but in any event it had no prospect without his having a disability. I have indicated in my judgment in Edem v Ajilon (UK) Ltd UKEAT/1600/06 approved by the Court of Appeal, and Truter v University of Leicester UKEATPA/0740/09 that there is no utility in hearing appeals against interim orders when there has been a final determination against the appellant. In this case, interim orders for striking out the disability case were made and they are now academic in the light of the dismissal at a full hearing, albeit in the absence of the Claimant, of his claim to be disabled.
30. I turn then to the separate matter out of the strike out of the protected disclosure claim. This does not attract the additional feature which I have set out above in relation to the DDA. It is a freestanding claim and the Claimant's response to the order is different. The Claimant contends in his submissions to me that he did indeed provide the materials. Engagingly, he acknowledges the force of the President's opinion that his submission of a list of dates on 15 September 2008 does not begin to comply with the requirements of the order. However, he set out in his submissions to me the places where the details of his complaints are exigible from the standard documents including the claim forms.
31. The Employment Tribunal did not at a final hearing deal a fatal blow to this claim as it did to the DDA claim. The President, in his opinion, accepted that it was regrettable that the judge did not refer to the paragraphs and explain in summary terms why he did not regard them as a sufficient answer. I have formed a slightly different provisional view, which is I cannot determine this issue without further input from the Employment Judge and so I will adjourn this part of appeal no. PA/0414/09 so that the Judge may answer the answer the questions which I direct without seeing the rest of this judgment. What I will want to consider, once I have the Judge's answer, is whether the considerations set out by the Court of Appeal in Abegaze v Shrewsbury College of Arts & Technology  EWCA Civ 96;  IRLR 238 and Blockbuster Entertainment Ltd v James  EWCA Civ 684;  IRLR 630 have been considered including whether a fair trial was possible and whether a lesser order, such as an unless order, might have been appropriate. I appreciate that was the holding in Abegaze but that was in respect of a failure to prosecute the case under rule 18(7)(d). I will therefore direct the Judge to provide answers to the issue raised by the President in paragraph 1, of his opinion in the Registrar's letter of 13 May 2009. I will then invite written submissions by the Claimant upon that and it will come back in front of me.
32. Since giving the above Judgment in open court on 13 March 2010, and adjourning the hearing, the steps I directed in paragraph 31 have for a combination of reasons not been carried out at the Employment Tribunal. Understandably, and with justification, the Appellant now complains about the delay. I will now order a full hearing of the PIDA strike-out point, but if the steps above are taken before the hearing, the adjourned process I directed can take place or I may review this order if justice requires it.