Allen v. PTR Ltd & Ors [2001] UKEAT 1192_00_2202 (22 February 2001)

JUDGMENT PRELIMINARY HEARING © Copyright 2001 APPEARANCES For the Appellant MRS P M DUFFAY (Consultant) Employment Law Advice Centre 22 St Edmunds Road Northampton NN1 5EH MR COMMISSIONER HOWELL QC This is an Appeal which is brought before us today for Preliminary Hearing. Miss Nicola Allen seeks to have set aside as erroneous in law the decision of the Employment Tribunal given on 10 August 2000 and set out in a statement of extended reasons sent to the parties on 14 August 2000, at pages 7-9 of the Appeal file before us. The Order made on that date by the Tribunal Chairman, Mrs Tribe, was that the Originating Application originally launched on Miss Allen's behalf on 5 May 1999 should be struck out for failure to comply with two procedural Orders made by the Tribunal as to the determination of remedy. Those Orders had been made on 10 February 2000. They followed a determination in Miss Allen's favour on liability, in a complaint of sexual discrimination which she had brought (along with other claims which were not successful) against her former employers, a Company called PTR Limited, and other Respondents against whom serious allegations of sexual harassment and sexual discrimination were made. Those allegations are not necessary for us to consider today, beyond saying that having seen the statement of extended reasons sent to the parties on 26 October 1999 by the Tribunal which determined the question of liability this was a serious case of sexual harassment and discrimination. The allegations which the Tribunal found proved against some though not all of the Respondents paint a pretty depressing picture of the working circumstances in which Miss Allen had been operating; although it is fair to say that there were countervailing allegations, some of which the Tribunal found proved, that the Applicant had herself been involved in some discussions of a pretty explicit and unedifying nature, so that there may well have been quite a lot to be argued about on the question of any compensation to which she was entitled as a result of her victory on the issue of liability. That argument, on the amount to be paid to her by way of compensation, has never taken place, in the circumstances we shall shortly attempt to outline. We should say that Miss Allen has throughout the entire course of the Tribunal proceedings and also this appeal hearing before us, been represented by a Company called the "Employment Law Advice Centre Limited". According to Mrs Duffay, who appeared and presented the case on behalf of Miss Allen before us today, this in fact consists of Mrs Duffay and her husband Mr Pat Duffay who are described as joint managing directors of the Company. Mrs Duffay explained that the Company is no more than a "small husband and wife concern", without substantial resources. Neither she nor her husband has any legal qualification, and they have been acting on behalf of the Appellant in this case (and no doubt Applicants in other cases) on a "no-win, no-fee" basis throughout. But as she accepted (and without doubt must accept, as their Company has been on the record as the Applicant's representative from the outset) they have throughout been responsible for the conduct of the proceedings on her behalf. That is relevant to the consideration of what the Tribunal should not or should not have done when faced with an application to strike out Miss Allen's proceedings for failure to comply with the tribunal's orders. As we have said, the complaint before the Tribunal was of sexual harassment. The Tribunal's extended reasons on the issue of liability were sent out to the parties on 26 October 1999 as can be seen from page 38 of the bundle of additional material before us. Page 39 shows that on 17 November 1999, the hearing of issues of remedy which had been fixed for 19 November 1999 had been postponed at the request of the Applicant's representatives. The matter then continued by way of correspondence, including an important letter sent by the Respondents' solicitors on 3 December 1999 criticising the way the adjournment had been obtained and requesting that Orders should be made by the Tribunal that various documents and other information relevant to the case for compensation should be provided by or on behalf of the Applicant. The letter, and the application by the Respondents' solicitors, was quite specific as to the documents and other material which they were seeking. There then followed an order by the Tribunal on 8 December 1999 as recorded in a letter on page 44 of the documents, requiring the Applicant or her representatives to submit an explanation and answer to the letter of 3 December, and to provide the copy documents requested by 16 December 1999. Then a further application came before the Tribunal, which was eventually heard on 10 February 2000. This was an application by the Respondents for directions that the documents and material should be produced. The hearing was also the Tribunal's own hearing for directions, to determine how the matter of remedy should be progressed. On 10 February 2000 there were made two Orders (by a typing error dated 10 March 2000 in the documents before us, but as is clear from other material and the recorded date on which they were sent to the parties at pages 45-48 of the bundle they were in fact made on 10 February and promulgated on 11 February). Those Orders were divided into two separate documents, both described as interlocutory orders made by the Tribunal. Each recorded that there had been representation for the Applicant by Mr Duffay and for the Respondent by its solicitor. The first Order recorded that: "Upon hearing the Representatives of both parties and by consent it is ordered that: (1) the Applicant's Representatives do provide the Respondents' solicitors with the copy documents requested by the Respondents' solicitors in a letter dated 3 December 1999 (a copy of which is annexed to his Order for ease of reference) and the details of the instructions of Dr Hendricks also requested in that letter, within 7 days of today." That Order was in quite unqualified terms and clearly specified the action that was required within 7 days of its making: that is at the latest by 18 February 2000. The second Order made on the same day, also described as an interlocutory order on the hearing for directions, did not record that it was made by consent but was in the following terms: "Upon hearing the representatives of both parties and upon the Applicant's representative giving his undertaking to notify the Tribunal within 7 days of the police informing him that there is no impediment to his contacting the Applicant, the following Orders become applicable: 1. The Applicant do give full details of her losses; how these have been calculated and all steps which she has taken to mitigate those losses within 21 days. 2. The Applicant do give disclosure of any supporting documentation with regard to 1. above within 21 days. 3. The Applicant's representative do use his best endeavours to secure the Applicant's consent to being examined by an expert nominated by the Respondent and to her consent to the release of her medical records to such expert." There then followed further directions as to the proposed submission of the Applicant to medical examination and medical evidence; directions that in the event of the medical evidence not being agreed each party was to be at liberty to call an expert whose evidence had previously been disclosed, a direction for the exchange of witness statements before the date fixed for the hearing on remedy, and directions that both parties should notify the Tribunal as to the estimated length of hearing and so forth in the usual way. The reference in the second Order to the Orders not becoming applicable until after the Applicant's representative had complied with an undertaking to "notify the Tribunal within 7 days of the Police informing him there was no impediment to his contacting the Applicant" was explained by Mrs Duffay to us as having been occasioned by a Police inquiry that had been instituted after the conclusion of the hearing of liability at the end of October 1999. This was as a result of a report that had been made by Miss Allen and by the Duffays to the Police, involving allegations that Miss Allen was being intimidated by people who she believed had been involved in the Tribunal proceedings, as a result of the decision that she had managed to obtain in her favour. Mrs Duffay further informed us that in the course of their contacts with the Police about these allegations, the Police had apparently raised a further question. The best information Mrs Duffay felt able to give us about this was that the Police had raised queries as to the veracity of information that had been put in the IT1 at Originating Application filed on the Applicant's behalf on 5 May 1999, in particular her stated date of birth. This according to Mrs Duffay had resulted in the Police not only instructing Mr and Mrs Duffay that they should have no contact with the Applicant herself pending further inquiries but also in the Police demanding and taking away the entirety of the documents relating to the case that were in Mr and Mrs Duffay's possession. That was the position which no doubt was explained to the Tribunal at the hearing on 10 February 2000 by Mr Duffay who then appeared for the Applicant, and that was the reason why this slightly unusual Order had been made, suspending further compliance with the normal procedural directions with a view to the hearing on remedy until the embargo imposed by the Police on contact had been taken off. However, we observe again that the separate Order also made on the same date for the production of documents which had been in the possession of the Applicant or her representatives was not subject to any such suspensive condition, and was recorded as having been made by consent, Mr Duffay himself having been present and appearing at the hearing on behalf of the Applicant. As contended by the Respondents' solicitors, and accepted by the Employment Tribunal Chairman who considered the striking out application finally on 14 August 2000, there had not been satisfactory compliance with either of those two Orders at any time from the date when they were made on 10 February 2000 until 14 August 2000, when, the matter came before the Tribunal Chairman on a paper consideration of the Respondents' application to strike the proceedings out in default of compliance with the Tribunal's two Orders. What happened in the meantime requires a little further explanation of the history as apparent from the documents which have been helpfully placed before us on this Appeal, and can be summarised as follows. On 17 May 2000, the Police informed Mr and Mrs Duffay that they now had permission to contact Miss Allen and take her instructions, so that the previous inhibition imposed by the Police on any such contact was then lifted. Mr Duffay immediately and very properly informed the Respondents' solicitors of that on the same date, as recorded in the Respondents' solicitors letter dated 13 June 2000 at page 50 of the bundle; Mrs Duffay expressly confirmed to us that the Police had indeed removed the embargo on contact with Miss Allen on that date. However, Mrs Duffay also explained to us that one of the consequences of what had transpired since the date of the original Tribunal hearing had been that Miss Allen had moved, and had quite deliberately not given information as to her whereabouts. Neither Mr nor Mrs Duffay themselves were aware where she was, or how she could be contacted, on 17 May or for quite some time afterwards. Nevertheless on 13 June 2000 the Respondents' solicitors made quite clear that as the 21 days which had started to run on 17 May had now expired, they were still pressing for the information and documents which the Applicant or her representatives had been directed to provide and which had not been provided. The letter to the Tribunal concluded: "In view of the Applicant's total failure to comply with the directions ordered on 10 February we therefore apply for an Order striking out her claim. We will be obliged if this letter could be referred to a Chairman for consideration and look forward to hearing further in due course. Mrs Tribe is the Chairman familiar with the somewhat complex history of this matter and if possible we would request the application be referred to her." Mrs Duffay informed us that Mrs Tribe had indeed been the Chairman concerned with the matter of remedy from the outset of that part of the procedure at the end of 1999, and had on an earlier occasion given sympathetic consideration to the difficulties which Mr and Mrs Duffay were experiencing in the unusual circumstances of the case, even going so far as to accept that sensitive material need not be recorded at that early stage on the Tribunal files. Following the Respondents' letter the Employment Tribunal office wrote to Mr and Mrs Duffay at the direction of the Chairman, Mrs Tribe, saying that they had apparently failed to comply with the Order of the Tribunal made on 10 February 2000 and recording specifically that under the Tribunal's Procedure Regulations the Chairman may order the striking out of any Originating Application on this ground. The letter (at page 51) further said that before that was done the Applicant's representatives were entitled to make representations in writing as to why the Chairman should not exercise this power, and gave a deadline date of 23 June 2000 for those representations to be submitted. On 16 June Mr Duffay wrote back to the Tribunal explaining the difficulties they had had in attempting to contact the Applicant which had not been successful, and saying that they had tried telephoning her home telephone number (which by then it appears that Mr and Mrs Duffay did have) as well as her mobile telephone number. It concluded: "Regrettably to date our efforts had been unsuccessful, we will however keep the Tribunal informed as to how we progress with this matter." Because there was a time limit due to run out on 23 June before the Chairman proceeded to deal with the then subsisting application to strike out the claim, a further letter was written by the Tribunal to the Employment Law Advice Centre on 23 June 2000 in the following terms: "Thank you for your letter dated 16 June 2000. This has been referred to the Chairman, Mrs C Tribe, who has directed me to inform you that the position as contained in your letter is noted and that you have a further 2 weeks within which to try to establish contact with the Applicant whereafter, you will have to make a decision as to the future progress of the case." That was copied to the Respondents' solicitors. At about this time, as Mrs Duffay informed us although she was not able to give the exact date, the Police returned to Mr and Mrs Duffay the documents in the case that had been taken away shortly after the liability hearing at the Tribunal at the end of the previous year. On 7 July 2000 Mr Duffay sent a fax to the Tribunal, with a copy to the Respondents' solicitors Pinsent Curtis saying that they had "today heard from the Applicant in the above matter". It is significant that 7 July 2000 was of course the day when the final 14 days allowed by the Chairman was due to expire. Mr Duffay then continued: "From my notes of the Interlocutory hearing held on 10 February 2000 I believe that we have 21 days to produce a schedule of loss for the Applicant and we will use our best endeavours to comply with this, we have asked the Applicant to provide us with her earning details at her earliest convenience. In accordance with the undertaking I gave at the Hearing I will do my best to persuade the Applicant to attend a medical examination for the Respondent the next time I talk to her. In the meantime we enclose a draft schedule of loss and will provide a final one as soon as possible as we have full instructions. The Applicant is keen to have her case concluded." The understanding Mr Duffay recorded there as to the effects of the second of the Interlocutory Orders made on 10 February was completely at variance with terms of that Order itself, which quite clearly prescribed as the Respondents' solicitors had indicated in their letter of 13 June that the 21 days should begin to run following the confirmation that the Police had removed the embargo on contact with Miss Allen herself. What was said in the fax also ignored the unconditional nature of the first (consent) order. The "draft schedule of loss" annexed to the fax set out various items under the heading: "THIS SCHEDULE IS DRAWN UP FOR GUIDANCE ONLY, AN ACCURATE ONE WILL BE PRODUCED IN THE FULLNESS OF TIME" The figures added upto a "total value of claim" alleged to amount to £28, 262.98. Apart from one item for £14,000.00 for "Hurt feelings/agrivated damages", none of the items shown on that schedule bore any relation, nor could any reasonable person have thought they bore any relation, to a claim for compensation for sexual discrimination. Mrs Duffay explained to us that that schedule had been pulled off a standard form which she had and her husband have on their computer appropriate to calculation of compensation claims for unfair dismissal. That is confirmed by the references in the sheet to a basic award, compensatory award, claims for loss of earnings following dismissal and so forth. Since the claims for unfair constructive dismissal which had indeed been originally been included in the Originating Application had been dismissed by the Tribunal in October 1999, the inclusion of those items on the schedule provided on 7 July 2000 was completely inappropriate. The Respondents' solicitors were justified in the protest they made about what had been provided to them in purported compliance with the Orders made as long ago as February 2000. Their protests were recorded in a letter dated 10 July 2000 at pages 57 and 58, which set out in detail their complaints about the failure to provide proper particulars of the alleged loss, and failure to comply with the agreed order for disclosure of documents made at the hearing on 10 February. It recorded specifically: "You have also failed to comply with the Order made by Consent on 10 February 2000 that you disclose the copy documents requested in our letter of 3 December 1999 together with details of the instructions to Dr Hendricks also requested in that letter by 17 February 2000. On 18 February 2000 you faxed to us a document which was totally illegible. We enclose a copy of this for your reference. We wrote to you on 21 February requesting another copy but, so far, you have failed to disclose this. You have also failed to disclose the statement of evidence by Mr Spencer Kelsey and the second statement of evidence of the Applicant. Although your Mr Duffay agreed to disclose these documents at the Hearing in Chambers on 10 February, you later claimed that you were unable to forward these documents because your file had been removed by the police. We trust that your file has now been returned and fail to understand your continued delay in complying with the terms of the Order. In the circumstances, we are pursuing the application on behalf of our client to strike out Ms Allen's claim and we enclose a copy of our letter to the Tribunal of today's date for your reference." The letter to the Tribunal on the same date at page 59 was a short one simply enclosing a copy of that letter to which we have just referred and applying in terms for the striking-out application to proceed: "In view of the Applicant's continued failure to comply with the Directions made on 10 February, we now request that the Tribunal proceed to strike out her claim. We would be obliged if this letter could be referred to the Chairman, Mrs Tribe, and look forward to hearing further in due course." By a further letter dated 12 July the solicitors wrote to Mr Duffay acknowledging a letter of 7 July which is not before us which had apparently enclosed a copy letter to Dr Hendricks. This was one of the documents that had been referred to in the first Order made on 10 February, but not by any means all of them, as they recorded: "We have still not received copies of the second statement by the Applicant or the statement from her partner, Spencer Kelsey. Are you deliberately refusing to supply these?" A second letter from the Respondents' solicitors on the same date recorded that: "The writer has, only this afternoon, received your revised schedule of loss faxed to this office on 11 July." Apparently the fax had been wrongly diverted to the accounts department. The letter took a number of detailed points on the schedule of loss, which the Respondents' solicitors alleged was inadequate. They pointed out that no account had been taken of a payment in lieu of notice. Further points were taken on her evidence having been that she managed to get a new job at a higher basic salary on or around 27 June 1999, so that she had no continuing losses from that date. Further points were taken on the calculation, over the period used, and that a claim for £500 for breach of contract had been included when Miss Allen had not brought a breach of contract claim. The letter concluded: "You also claim £200 for loss of statutory rights. Again, there is no basis for this element of her claim. Her complaint of unfair constructive dismissal was not upheld by the Tribunal and, in any event, she had acquired no statutory rights at Prime time Recruitment because she had not worked for them for at least two years (being the qualifying service requirement at the date she left) or even for one year. For all the above reasons, we do not accept that the schedule you have supplied complies with the Order for Directions. You have also failed to supply all documentary evidence of the losses claimed by your clients. We shall, of course, require copies of all her payslips between 9 April 1999 and the date she started her new job at which point her continuing losses ceased. We now look forward to receiving a schedule of loss and supporting documents which comply with the Order for Directions. If further time and costs are incurred by having to respond to a further incorrect and unsubstantiated schedule of loss, we shall apply to the Tribunal for an Order that Ms Allen pay our client's costs on the grounds of her unreasonable conduct of this matter." On 12 July 2000 Mr Duffay sent a letter to the Tribunal Office (at page 63 of the bundle) in the following terms: "We have had sight of the Respondents' representatives letter to yourselves dated 10 th July. We oppose the Respondents application for a Striking Out Order on the following grounds: 1. Mrs Tribe is aware of the ordeal the Applicant has had to go through because of this case. 2. The Applicant has been severely injured both mentally and physically because of this Employment Tribunal case. 3. The Applicant has had to leave the area because of the treatment she has received and has now moved to some miles away. 4. The Applicant is doing her best to comply with the Tribunals Directions and has now furnished both the Tribunal and the Respondents representatives with a detailed schedule of loss and accompanying documentation. 5. The Applicant has agreed to be mentally examined at the Respondents expense and to co-operate fully with them to this regard. 6. The Applicant wishes for a Remedy Hearing at the earliest available date to the Tribunal in order to conclude this matter. 7. Until quite recently the Police have held all of our paperwork relating to this matter thus making it impossible to progress matters." A copy of that letter was sent to the Respondents' solicitors but not surprisingly did not satisfy them. On 17 July 2000, they responded by enclosing for the attention of Mr Duffay a copy of their letter of the same date to the Employment Tribunal. This was in the following terms, at page 65 of the bundle before us: "We have received a coy of the ELAC's fax to you of 12 July 2000 opposing our application to strike out the Applicant's claim. Their letter does not give any good reason for their failure to comply with the timetable for directions laid down on 10 February 2000. There is no reason given for the Applicant's failure to instruct her representatives for nearly two months. The Applicant has still failed to comply with the Order for Directions made by consent on 10 February. The ELAC have now supplied a copy of the letter of instruction to Dr Hendricks but have still not supplied copies of the second statement of the Applicant or the statement of Mr Kelsey which were disclosed to Dr Hendricks for the purposes of his report. We enclose, for the tribunal's reference, copies of our recent correspondence with the ELAC on this subject. The Applicant has also failed to comply with the other Order for Directions made on 10 February in that she has not supplied a "detailed schedule of loss and accompanying documentation". The schedule provided is defective and copies of the Applicant's payslips for the relevant period have not been disclosed. Again, we enclose copies of our recent correspondence with the ELAC on this subject. The Respondent has been put to considerable unnecessary cost by the Applicant's unreasonable conduct of this matter and continuing disregard for the two Orders for Directions was made on 10 February. We would be obliged if this letter and enclosures could be referred to the Chairman, Mrs Tribe, for consideration, and look forward to receiving the tribunal's decision on the Respondent's application to strike out in due course." That letter was as Mrs Duffay agreed, copied to Mr Duffay and received but no further communication or explanation was sent by Mr or Mrs Duffay on behalf of the Applicant to the Tribunal; which at that stage plainly had before it a subsisting application to strike out the originating application, for failure to comply with the two Orders made by the Tribunal itself, one of them by consent on 10 February 2000. Mrs Duffay informed us that the reason no further communication had been sent and no further contact had been attempted with the Tribunal on behalf of their client Miss Allen was that she and her husband were expecting a further communication to be sent to them by the Tribunal, inviting further representations or observations in response to what she understood to have been a fresh application by the Respondents' solicitors to strike out the originating application. When pressed, she further said that the understanding of herself and her husband was that the letter of 23 June 2000, giving a final two weeks to deal with the then pending request for information and threat of striking out, had effectively put an end to the original Striking Out Application altogether. Thus what took place in the correspondence in the month of July should have been regarded as a fresh application, on which they should have been given a further opportunity of making representations before the matter was referred to the Tribunal Chairman for consideration of the Respondent's application. In the absence of any further communication received from Mr and Mrs Duffay or on behalf of the Applicant, the matter was referred to the same Tribunal Chairman for consideration of the striking out application. This came before her on 10 August 2000, after a gap of over three weeks following the letters of 17 July; during which time, no further attempt was made at compliance with the original orders, despite the defects pointed by the Respondent's solicitors, and no further attempt was made to communicate with the Tribunal so as to preserve Miss Allen's interests if there was indeed some good reason for further time being required for effective compliance with the earlier Orders. In those circumstances, the Chairman having considered the matter made an Order in exercise of the powers conferred under rule 4(7) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 as amended, directing that the originating application be struck out. She expressed her reasons in the following terms: "By a unanimous Decision of the Tribunal promulgated on 26 October 1999, the Applicant was found to have been discriminated against on the grounds of her sex. A Remedy Hearing was arranged for November 1999 but this had to be vacated upon the application of the Applicant due to wholly exceptional circumstances which required an adjournment to be granted. By a letter dated 3 December 1999 from the Respondents' solicitors, the Tribunal was alerted to the fact that they had been served with a psychiatric report prepared by a Doctor Hendricks. In that letter, the Respondents' representatives complain that the Respondent had been prejudiced and sought discovery of certain documents arising from this Report. As a result, the listing of the Remedy Hearing was deferred pending compliance by the Applicant of the directions given a chairman in a letter dated 8 December. There followed further correspondence and I directed an Interlocutory Hearing in Chambers to take place on 10 February 2000. At the Interlocutory Hearing, various directions were given and Orders made by Consent. Two Orders were promulgated on 11 February 2000 (albeit that both were wrongly dated 10 March). By a letter dated 17 May, the Applicant's representatives notified the Tribunal that permission had been given by the Northamptonshire Police for instructions to be taken from the Applicant. By a letter dated 13 June from the Respondent's representatives, the Tribunal was notified that the Applicant's representatives had still not complied with the Order made on 10 February and as a result, the Applicant's representative was asked to show cause why the complaint should not be struck out. The Applicant's representatives wrote to the Tribunal to inform it that they were using their best endeavours to contact the Applicant and asked for directions which were given by a letter dated 23 June giving them a further two weeks within which to try to establish contact with the Applicant. There then followed further correspondence between the parties which was copied to the Tribunal for information. By a letter dated 17 July written by the Respondents' solicitors, the Tribunal was notified that the Applicant had still failed to comply with the Order for Directions which had been made as long ago as 10 February and no explanation had been provided for the failure to comply with the timetable for directions nor for the Applicant's apparent failure to instruct her representatives for such a long period. Piecemeal discovery was being given by the Applicant to the Respondent but only following protracted correspondence. In these circumstances, the Applicant has been given ample opportunity to comply with the Orders made by the Tribunal and it is completely unsatisfactory for the Respondents to be left at this late stage without explanation or information and with discovery taking place piecemeal being extracted from the Applicant with great effort and at continuously escalating expense following request after request when Orders had previously been made by consent. I consider the Applicant to have acted wholly unreasonably in failing to comply with the Orders of the Tribunal made and in those circumstances, I direct the Originating Application to be struck out." Against that decision Mr and Mrs Duffay seek to pursue an Appeal on behalf of Miss Allen, on a number of grounds set out in the Notice of Appeal dated 20 September 2000 at pages 1-2 of the Appeal file before us commencing: "The Tribunal misdirected, misunderstood or misapplied the law in exposing both the Appellant and her representatives to a charge of contempt of court if she were to comply with the Order of the Employment Tribunals, yet had her successful case of sex discrimination struck out prior to a Remedy Hearing taking place on the ground that she did not commit the unlawful act of contempt of court." And on various other grounds specified in the Notice of Appeal, which can really be summarised by saying that because of the exceptional and distressing history of the matter the Tribunal's decision to strike out the proceedings at the end of the day, for the continued failure to comply with its Orders without apparent explanation, had been an unreasonable one. This Appeal Tribunal should, it is argued, interfere and either direct that the matter should be reconsidered or substitute its own decision reinstating the proceedings so that they could be pursued against the Respondents for whatever compensation might be due. Mrs Duffay who presented the case before us summarised her submissions under two main heads, conceding first that an earlier submission contained in a skeleton argument that the Tribunal had had no jurisdiction to make a Striking Out Order in these circumstances was not well founded and could not be pursued before us. The two principal grounds she advanced were first that in the particular circumstances of this case it was reasonable for her and husband as the Applicant's representatives not to have done anything further, or even to have responded to the Tribunal, or attempted any further compliance with the original orders of 10 February 2000 following receipt of the letters of 17 July 2000; because as she explained to us they had been expecting to be given a further opportunity to explain the position to the Tribunal before any question of a Striking Out Order was considered. The second ground was that in any event no Striking Out Order should properly have been made in these circumstances because of the very exceptional factors to which she had already drawn the attention of the Tribunal Chairman as long ago as January or February 2000, when the difficulties arising from the Police investigation had been explained. We have been unpersuaded that either of those two main grounds (or indeed any of the other more detailed grounds put forward in the Notice of Appeal or the Skeleton Argument, all of which we have considered) disclose any arguable ground in law for this Appeal Tribunal to interfere, with what appears to us to have been a proper exercise of discretion by the Employment Tribunal Chairman faced with proceedings which were being conducted before the Tribunal in a wholly unsatisfactory manner. This Appeal Tribunal can only interfere with an Order of an Employment Tribunal Chairman made in the exercise of a discretion, which it is agreed that this Chairman possessed, if this Tribunal can be satisfied that there is some material misdirection on the part of the Tribunal Chairman as to the questions to be addressed before that discretion is exercised, or if it could be said there was no material before the Chairman on which any reasonable Tribunal could reach the conclusion that this was a proper case for a Striking Out Order. In our judgment, although the Chairman's reasons are fairly shortly expressed, when they are read in the context of the long-drawn-out history of the matter to which we have referred there is no ground for saying that this Chairman arguably misdirected herself as to what she should take into account before considering making a Striking Out Order. Nor could it possibly be said that given the unsatisfactory procedural history there was no ground on which she could have properly considered making such an Order. In our view, the Chairman was entitled to proceed as she did on 10 August 2000. We have not for our part been satisfied that if Mr and Mrs Duffay were left under the impression that there would be some further opportunity of making submissions in response to a specific invitation from the Tribunal following the correspondence of 17 July, that understanding was based on any reasonable ground whatever. We say that in view of the specific and repeated letters they had received from the Respondents' solicitors, making it absolutely clear that the original application for the proceedings to be struck out was indeed being pursued, and that they regarded the very limited and piecemeal compliance with the original Orders as completely unsatisfactory. Accordingly we have not been persuaded by what Mrs Duffay said or by the arguments in the Notice of Appeal that there is any arguable ground here to warrant us directing that this Appeal should be allowed to go forward to a full hearing at the Employment Appeal Tribunal, and we unanimously now dismiss this Appeal. We also have to add that the course of events we have outlined and the way the matter was explained to us by Mrs Duffay in our judgment do show inescapably that despite this case having been one of exceptional difficulty for any representative, the way it was conducted on behalf of Miss Allen in the later stages following the decision in her favour of 26 October 1999 has fallen well short of any acceptable professional standard. We said that in particular not because of the difficulties experienced in the earlier stages which were properly put before the Tribunal Chairman in January or February 2000, but because of what happened or rather what failed to happen in the summer of 2000 following the occasion on 17 May when the Police had removed any objections to contact between Mr and Mrs Duffay and their client, and the date in June by which the Police had returned all the documents, so that there was no longer any practical impediment to disclosure in compliance with the original Order; and because of the correspondence in July and August when in our judgment no reasonable person could have been under any misunderstanding that a Striking Out Application was being actively pursued, and required to be dealt with as a matter or priority if Miss Allen's interests were to be safeguarded and the case put forward properly on her behalf. Legally qualified or not, people acting as representatives for parties before Employment Tribunals must understand that, though informal, these are legal proceedings; and if the Tribunal's orders and directions are disregarded, legal consequences follow. There is no doubt a great deal to the background of this case which we have not heard, but the circumstances we have outlined do in our view mean that Miss Allen may now need to consider seeking separate advice on what other remedies may be available to her for recovery of any loss of compensation she may have suffered as a result of the striking out of her Employment Tribunal case. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII