Appeal No. EAT/506/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26th October 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR R JACKSON

	MR J A SCOULLER

MISS S BIRDI	APPELLANT

SLOUGH BOROUGH COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S RAJENDRA
(Representative)

	

	MR JUSTICE KNOX:  This is a preliminary hearing in an appeal by Miss Birdi from a decision by the Chairman of an Industrial Tribunal sitting at Reading on the 4th March 1991 whereby he dismissed her Originating Application for want of prosecution.  The decision was sent to the parties on the 29th April 1991.

	The Rule in question which the Chairman operated under is Rule 12(2) of the Industrial Tribunals' Rules of Procedure which, so far as relevant, provides as follows:
"A tribunal may, if it thinks fit, -

(f)subject to the Proviso below, on the application of the respondent, or of its own motion, order to be struck out any originating application for want of prosecution;"

and the Proviso reads:
"Provided that before making any order under . . . . .

 (f) above the tribunal shall send notice to the party against whom it is proposed that any such order should be made giving him an opportunity to show cause why such an order should not be made."
No suggestion was made before us that that was not done.

	The Full Reasons are very long and detailed.  They stretch over 11 pages and they contain a fairly lengthy rehearsal both of the Originating Application and the history that that proceeding had and also the history of various internal matters by way of disciplinary proceedings and otherwise, which were not directly in issue but formed part of the background to the Chairman's decision.  The Originating Application was presented on the 29th January 1990.  It raised claims of both discrimination contrary to the Sex Discrimination Act and the Race Relations Act and there was, to clear one trivial point out of the way, a clerical error in the preparation of the Originating Application in that the date on which the action complained of took place or first came to the Applicant's knowledge was stated to be "continuously since March/April 1988."  That was an improbable allegation because the employment in fact started on the 1st July 1988, one of the points about which there was not in fact any issue, and it is fairly clear to us that that must have been a clerical error.  Nothing, in our view, turns on it in relation to the issue in connection with want of prosecution because it has no direct or even indirect bearing on the question whether the application was prosecuted diligently or not.

	It will be convenient at the outset to look and see what the functions of this Tribunal are in relation to appeals from the exercise by the Chairman of an Industrial Tribunal under the Rule that I have read.  One finds in "Harvey on Industrial Relations and Employment Law" in paragraph 141.02 in Section X this:
"It will be exceptionally difficult for an applicant who has been guilty of unacceptable delay to prevent his application being struck out on the ground that, despite the delay, no prejudice has been caused to the respondent.  As the EAT in O'Shea made clear, prejudice is inherent in the fact of delay."

and that is a reference to the decision in O'Shea v. Immediate Sound Services Ltd. [1986] ICR 598 where Mr Justice Popplewell gave the judgment of this Tribunal in connection with an application to strike out which had succeeded in front of the Industrial Tribunal and which was the subject of an unsuccessful appeal to this Tribunal.  At page 601 Mr Justice Popplewell said this:
"We start by reminding ourselves what our powers are."

I pause there to observe, that means, of course, the powers of the EAT.  Going on with the citation:
"They are not powers of rehearing or of our exercising our own discretion.  We have to satisfy ourselves that the discretion which is vested in the chairman was properly exercised, and the proper approach has been laid down in many cases but particularly in the decision of Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778,782 which reads:

`Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion.  Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised;  or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.'"

The main point that was taken in that case was that because the Industrial Tribunal had not, in terms, made a finding of prejudice against the Respondent there was no sufficient material upon which to strike out for want of prosecution.  That was rejected by the Employment Appeal Tribunal on the grounds stated at p.603 where Mr Justice Popplewell said this:
"This was a very simple case.  Was there a want of prosecution?  All cases which are not prosecuted in time necessarily involve prejudice to the other side and they also involve difficulty in the court ascertaining what took place.  It is not necessary for a tribunal to say `We have considered prejudice' because it is inherent in the failure to prosecute a case."

and there are also warnings against assuming that what is permissible in the High Court in the way of delay in prosecuting an action should be applied to Industrial Tribunals.  That is plainly an erroneous view, partly because the Industrial Tribunal proceedings are intended by Parliament to be conducted expeditiously and partly because the statutory time limits in Industrial Tribunal matters, including the Race Relations Act and the Sex Discrimination Act are vastly shorter than the time limits that obtain in relation to civil claims in the courts where three or six years are the commonest limitation periods, as opposed to the three months, which are standard in Industrial Tribunal proceedings.

	I turn now to look at the history of this matter. As I have said the Originating Application was presented on the 29th January 1990.  It was a document that was not easy to construe and was quite lengthy and there was an order for Further and Better Particulars of the Originating Application to be given on the 12th February 1990.

	On the 16th February 1990 there was a letter received which included a medical certificate concerning Miss Birdi's inability to attend a disciplinary meeting.  That was not in the bundle before us, and it is at a very early stage in the history and is not directly relevant to anything that we have to decide.  It certified, it would appear, that she was unfit for four weeks from the 19th January and the reason that was given at that stage was depression.  There then followed an application by the Respondent, Miss Birdi's employers, the Slough Borough Council, for dismissal of the Originating Application, not on the ground of want of prosecution, but on the ground that Further and Better Particulars had not been supplied.  

	On the 7th March there was a Hearing for Directions and there was an order that Further and Better Particulars be given by the 4th April and that if the Applicant did not comply the Chairman would consider striking out her application.

	On the 29th March the Borough Council sent its list of documents.

	On the 6th April 1990 again, notice was given to the Applicant that if no Particulars had reached the Tribunal office by the 17th April the application would be struck out.  A long document did arrive on the 17th April, the first five pages of which were accepted as the Further and Better Particulars.

	On the 1st May 1990 there was a further order for Further and Better Particulars on the ground that the earlier Further and Better Particulars had not complied with the original order that had been made.

	On the 31st May the Chairman, in fact the same Chairman who gave the decision which is under appeal, saw the file and wrote to both parties indicating that in his view the issues were not clear and directing that the hearing, which had been fixed for the 11th June for the hearing of the Originating Applications substantively, should not take place as such but that there should then be a Hearing for Directions.  That happened in that the parties, including it would seem Miss Birdi, duly appeared before the Chairman, Miss Birdi being represented by Mr Rajendra, who appeared both before the Chairman on the occasion when the Order under appeal was made, that was on the 4th March 1991, and before us today.  That was a long hearing as a result of which particulars were given of the items that were mentioned in the Originating Application as matters of complaint, and about that the Chairman in his decision says both parties knew, to some extent, what was involved.  That resulted in the case being fixed for the 25th and 26th June 1990.  That was postponed, and no one suggests that this delay was attributable to Miss Birdi, until the 18th and 19th July.

	On the 16th July there was an application on behalf of Miss Birdi for a postponement of that hearing, and the original application for postponement had been on the basis, first that documents were still awaited from ACAS, secondly, that Miss Birdi had anaemia and thirdly, that her representative was not available for the hearing dates.  In the circumstances, that application was opposed by the respondent Council.  Further contact was made by the Tribunal staff with a person who claimed to be Miss Birdi's brother at her home address at Northfleet, who described her as being "out for the day" and the message was given to him that a medical certificate must be provided.  The medical certificate duly turned up dated the 17th July.  This stated that Miss Birdi was unfit for two weeks due to abdominal pains, which were under investigation, and as a result on the 18th July there was an Interlocutory Order made which postponed the hearing of the application.  That was subject to a provision that the application should be relisted only a personal application to the Chairman, and as the Chairman observed in the decision under appeal, effectively the absence of any such application was the matter that came before him.  In fact, formally, the matter that came before him was an application to strike out for want of prosecution that was launched towards the end of August 1990 by the Respondents.  That did not at first come to an effective hearing because on the 14th September another medical certificate was received dated 11th September, which read as follows:
"This is to certify that, in my opinion, Mrs Sneh Rajendra . . . . is suffering from abdominal pains since 12.6.90 and is being investigated.  She is awaiting renal scan and ? possibility of colectomy."

The Chairman said that the words presumably on a printed form "unable/able to attend work/school" had been deleted.

	The Chairman expressed the greatest suspicion that that certificate came into existence because there was a hearing of the Respondents' application to dismiss for want of prosecution fixed for the 19th September.  He said that as a result of that certificate it was adjourned.

	So that both applications stood adjourned at that stage.  The main hearing had been adjourned in July, as a result of the first of the two medical certificates which I have quoted the gist of, and the application to strike out for want of prosecution had been adjourned in mid-September on the strength of the medical certificate which I have last quoted.

	The next event was that on the 12th October a letter arrived at the Tribunal office from Miss Birdi informing the Tribunal of what were apparently described as "recent developments" and I now quote what is found in paragraph 12 of the Chairman's decision as regards that:
"She [that is Miss Birdi] asked that the letter should, if possible, remain in confidence.  In the light of the events which had now occurred, I do not feel that is possible.  It refers to the applicant being on the NHS waiting for a renal scan and that her grandfather was very ill;  her father had been asked to visit him and that her father had asked her to accompany him.  The Tribunal staff made further enquiries of the applicant.  It transpired that she was due to depart with her father for India on 24 November and return on 9 February."

Pausing there for a moment, that of course means the 9th February 1991.  This plan, in fact, was implemented and it appears that Miss Birdi did in fact go to India as intimated she wished to do.  What was said to us, amongst other things, by Mr Rajendra on her behalf today was that the Chairman, and the same Chairman, gave permission for Miss Birdi to go to India.  That is not amongst the facts stated in the Chairman's decision and indeed it is, in our view, virtually inconceivable that she should have been given such an express permission on the footing that there would thereby be no prejudice to the further conduct of the Originating Application.  We say that for two reasons.  One is that there was outstanding before him but stayed because of the second medical certificate, an application to strike out for want of prosecution and the other is that the account that is given, and which I have read, of this particular episode would be so gravely defective as to be misleading if he had given any such express permission on the footing that the further proceedings would not be prejudiced.  What Mr Rajendra actually said about this to us today was, as I have already mentioned, that the Chairman did give permission for Miss Birdi to go to India.  When asked whether the permission was in the form of an oral or a written green light, he said "we were given an oral green light, there was a writing but I do not have it."  At a later stage in the argument he said "I am trying to say that this was a tacit agreement, the matter was kept frozen with the agreement of the Chairman".  Now out of that variety of accounts of what actually had happened it seems to us impossible to extract any clear or definite factual matter which can amount to something which qualifies as a ground for the Tribunal here to interfere with the decision of the Chairman of the Industrial Tribunal.  The statement that the Chairman did agree with the proposal to go to India is something which is entirely uncorroborated by any matter which we have had shown to us today.  Had it been raised before the Chairman he would have dealt with it.

	I turn now to the various grounds upon which the Industrial Tribunal came to the conclusion, through its Chairman, that it did, namely, that there had been such want of prosecution as warranted the striking out of the Originating Application.  He, the Chairman, said at paragraph 13, after the passage regarding the travel to India, this:
"Perhaps the recital of facts above gives some indication of why I said that I was influenced in my decision by the circumstances which Mr Quayle drew to my attention, which had occurred prior, and, indeed, in part, after this application had first come to an Industrial Tribunal."

Pausing there for a moment, that is a reference to the submissions that had been made by Mr Quayle, who appeared on behalf of the Borough Council, regarding the history of the internal matters, principally disciplinary in nature but not exclusively so and I do not propose to go through that, although it was quite lengthy and is set out in detail in the learned Chairman's decision.  Going on with his decision, he went on to say this:
"It is now obvious to me that the applicant was fit to travel to India in November and had planned it as early as 12 October.  There was no earthly reason why this matter should not have been heard before the applicant's departure.  The medical certificate, which arrived in September, was far from satisfactory, but arrived too near the date fixed for the hearing for any reasonable Chairman to do anything other than postpone that hearing.  Frankly, as Mr Quayle says, it is the same old story all over again.  I have reviewed the whole history of this matter, as I have gleaned it from the documents and what, in particular, was said to me by Mr Rajendra at this last hearing.  All of that indicates to me that whilst the applicant is prepared to make allegations which are not only exceedingly varied, but spread very wide, affecting numerous people, and stretching over a period of over two years, there is a marked reluctance to permit the Tribunal to make a decision on those allegations.  It is clear this matter could have been heard long ago.  I can only repeat that the whole matter and, particularly on each occasion before the Tribunal, the lateness of the appearance of a medical certificate and request for postponement, is a repetition of the pattern that occurred at the respondents.  Even the medical certificates themselves, which clearly gave the respondent cause for concern, and hence the request for an independent medical examination, are vague.  As I understand it, the applicant is married to, and lives with, Councillor Rajendra.  She has never disclosed any address other than the one in Northfleet to the Tribunal.  The medical certificate has come from a doctor there and it must be apparent from some of the remarks I have made above, concerning the dates when certain events occurred when apparently the applicant was ill, also give me cause for concern.  I regard the whole matter as thoroughly unsatisfactory and Mr Rajendra's approach in his address to me really confirmed that there was nothing that could be said by way of defence to the respondent's application."

Finally, I should mention, so far as the facts are concerned, that at the hearing before the Chairman Mr Rajendra had asked whether the Chairman would consider a summary sent in after the hearing before reaching his conclusion, and that was accepted and taken advantage of.  The documents were submitted, the Chairman said about them:
"There is a vast amount of detail concerning the merits, no explanation whatsoever for any delay in applying for a hearing."

	I turn now to the grounds that were put forward by Mr Rajendra, as we understood them, for the appeal against the Chairman's decision to be allowed.  First of all Mr Rajendra submitted that the Chairman followed what Mr Quayle had said on behalf of the Borough Council rather than what he, Mr Rajendra, had submitted to the Chairman, and in those submissions Mr Rajendra would include, what he described as evidence, but which would more accurately be described as statements by Mr Rajendra of matters that he relied upon.  A typical example of that would be certificates from psychiatrists who Mr Rajendra said had certified, or had expressed an opinion, that Miss Birdi had suffered psychiatric or psychological trauma as a result of the events which formed part of her complaints of discrimination of one sort or another.  It was not submitted by Mr Rajendra that the Chairman  was given a certificate from a psychiatrist to that effect, but he did submit to us that the Chairman was promised a certificate from a psychiatrist and Mr Rajendra reported the psychiatrist's views to the learned Chairman. 

	There are, of course, disagreements of a factual nature in what was submitted by Mr Rajendra on the one side and what is reported to have been submitted on the Borough Council's side when the matter was before the learned Chairman.  It is the unpleasant duty of Industrial Tribunals, whether sitting in threes, or by the Chairman alone, where there is jurisdiction to do this, as there is in such an application as this, to deal with such conflicts, Commonly they are conflicts of evidence given on oath.  In this particular case the matter proceeded largely, if not exclusively, on the basis of submissions on either side, coupled of course, with the Chairman's own recollections because he had been personally involved in a good deal of the interlocutory process.  We have been unable to find anything that qualifies, under this head, as an error of law such to entitle us to interfere under any of the heads that I quoted in the passage in O'Shea v. Immediate Sound Services Ltd above.

	Next, Mr Rajendra relied on the fact that some of the delay was not attributable to Miss Birdi but was attributable to the Industrial Tribunal itself, and we accept this.  That period from the 25th or 26th June to the 18th or 19th July is not a period which can be laid as Miss Birdi's door.  Nobody suggests that it could, and there is nothing that leads us to suppose that the learned Chairman was under the impression that that period of delay could be laid at her door.  The delay thereafter in the substantive hearing of course occurred because of the production of the medical certificate dated the 17th July that said that she had been unfit for work for two weeks due to abdominal pains.  From that moment on the onus would have been on Miss Birdi to reactivate the proceedings, if and when, her abdominal pains subsided sufficiently to permit her reasonably to appear before an industrial tribunal.  Of course, as we know, they subsided sufficiently to permit her to go to India accompanying, as a filial daughter would, her father, to visit her grandfather.  But the immediate area of delay with which both the Chairman and we are concerned is not that before the 18th/19th July but that following that date when the adjournment was granted.  So the fact that earlier delay was to some extent attributable to the Industrial Tribunal is not, in our view, relevant to this issue.

	Next, came the submission regarding the Chairman's consent to the visit to India, which has been dealt with above.  For the reasons that we gave earlier we do not find that as a reason which warrants our interfering with the decision below.  It is perhaps a matter for regret that the Chairman was not given an opportunity of commenting specifically upon the allegation that is now made, but we have to deal with the case as we find it.

	Next, there was criticism made of the treatment of the medical certificates by the Chairman.  There is no doubt that the Chairman did take a somewhat less than enthusiastic view of those certificates.  Mr Rajendra submitted to us that the Chairman should have conducted further investigations.  That seems to us to reveal a lack of understanding of how proceedings in front of industrial tribunals or indeed, courts, operate.  The parties provide evidence and the tribunal does the best it can with the evidence that has been provided.  In this case there was a succession of somewhat varying medical certificates which were not either very precise or very clear as to the degree of disability that was being endured by Miss Birdi.  For example, the certificate dated the 11th September said that she was suffering from abdominal pains since the 12th June 1990 and was being investigated.  That would seem to indicate that the abdominal pains had been more or less continuous since the middle of June, that is a period of some 3 months.  That is hardly consistent with one of Mr Rajendra's submissions to us which is, that she was ready for the hearing on the 25th and 26th June and that if that was so, as perhaps it was, that would suggest that she had by then recovered from the abdominal pains, since the 12th June. She certainly does not appear to have suffered from them the preceding day because, again Mr Rajendra told us, and we accept, because it is in line with what is said in the Chairman's decision, she was present on the 11th June, the day before.

	Next, it is to be observed that the giver of the certificate, a doctor, did take the trouble to delete the words which are standard, and therefore printed on the form, because the form is most often used in connection with failure to attend either work or school.  That of course is attributable to a variety of different possible motives.  One is, that the doctor perceived that this was not a certificate, or was told that this was not a certificate, that was needed for either work or school and therefore struck out those words as being inapplicable to the particular subject matter for which the certificate was needed.  The other possibility is that he was not in a position to say that Miss Birdi was unable to attend work, obviously there would hardly be any question of her attending school.  These are not matters of allegations of dishonesty against the author of the certificate.  They do go to the unsatisfactory nature of the certificate as warranting the conclusion that Miss Birdi was, for a continued period after the adjournment that was granted in mid-July, unable to attend to the necessary extent to appear before an industrial tribunal.  It is on that basis that it seems to us that the learned Chairman was justified in viewing with a degree of scepticism, the way in which the medical certificate were produced.  Both of the ones that were before him did appear immediately before the date when the hearing in question was due to take place.  They were followed by a journey which we find incompatible with a physical condition which was such as to preclude attendance before an industrial tribunal.  Accordingly, it does not seem to us that the criticism that the learned Chairman made of the medical certificates is anything that comes near to amounting to an error of law.

	Next, there was reliance on the involvement of ACAS and the CRE.  No doubt there was an involvement at an early stage with both those bodies, and as far as the latter is concerned, continuously, because they may well have had a great deal to do with the prosecution of Miss Birdi's case.  That we do not know and would not be right for us to investigate, but as a reason for finding that the Chairman was in error in dealing with the application to strike out in the way in which he did, it seems to us necessarily to fail. Whatever laudable attempts there may be to dispose by agreement of proceedings which are pending before an industrial tribunal, once matters have progressed as far as they had, by mid-June in this case, it is clear that the time has come for the parties to press on with the proceedings and to get them disposed of at the earliest feasible time.

	It was accepted by Mr Rajendra that it was not an error of law for the Chairman to have some regard to the earlier matters that he went through in some detail, but he did submit that he was in error in accepting Mr Quayle's account of the matter.  On that we have no more to add to what we observed earlier, that it is the sad duty of Chairmen faced with conflicting submissions to make up their mind where the truth lies, in so far as it is a matter of factual evidence, and how he should exercise his discretion in so far as it is a matter of the exercise of discretion.

	The final, and perhaps most important, point that was made to us by Mr Rajendra was that this was a decision in which the Chairman had made up his mind in favour of the Borough Council and in which he disregarded what Mr Rajendra submitted to him.  Mr Rajendra rejected the Chairman's assessment as one of marked reluctance by Miss Birdi to permit the Tribunal to make a decision on the allegations she raised.  He rejected also the Chairman's analysis as the whole matter being thoroughly unsatisfactory.  That is a matter for the judgment of the industrial Chairman.  It is conceivable that other chairmen might possibly have come to a different conclusion, but it was the duty of the Chairman to make up his mind on this application that had been made by the Respondents and given the background of the dates and the ability of Miss Birdi to go, and come back, from India we find ourselves quite unable to find an error in law in the Industrial Tribunal's decision. A  fortiori, we do not find that there was any element of perversity in the conclusion which he reached.

	In those circumstances the appeal will be dismissed.