Appeal No.	 EAT/0631/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 December 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR R SANDERSON OBE

MR C WALSH	APPELLANT

MARGARET MCDONAGH 
(ON HER OWN BEHALF AND ON BEHALF
OF ALL OTHER MEMBERS OF THE LABOUR PARTY)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS KARON MONAGHAN
(of Counsel)
Mr John Wadham
Director
Liberty
21 Tabbard Street
London
SE1 4LA	
For the Respondents	MR MICHAEL FORD
(of Counsel)
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London
WC1B 3LW	

HIS HONOUR JUDGE PETER CLARK

1	This case demonstrates the utility of paragraph 13.4 of our Practice Direction which provides that if the parties to an appeal reach agreement that the appeal should be allowed and the matter is remitted to the Employment Tribunal, that order will not simply be made by consent.  It is for the Employment Appeal Tribunal to determine whether there is good reason for making the order sought.  If a reasoned Tribunal decision is to be overturned, that Tribunal is entitled to know why.

2	The Appellant, Mr Walsh, commenced these proceedings by an Originating Application presented to the Reading Employment Tribunal on 9 February 2000.  He complained of what was described as ‘age discrimination’ by the Respondent, effectively the Labour Party.  The nature of his complaint was that having been a Labour Councillor for Slough for the previous 
6 years, he was deselected in advance of the upcoming local elections in order to make way for a younger candidate, a man.  He was then aged 72 years.

3	On 10 February 2000 the Tribunal wrote to his then representative, Mr Ali, of the local Citizens Advice Bureau, stating that a Chairman was of the opinion that the Originating Application did not disclose any claim which fell within the jurisdiction of the Tribunal.  Consideration was being given to striking out the claim on that basis.  The Appellant’s representative was given 7 days in which to make representations as to why the claim should not be struck out.  The application would not be processed pending a reply.  Following an extension of time Mr Ali wrote on 24 February 2000.  He submitted that the matter deserved a Preliminary Hearing so that the following points could be advanced:

“1	That not to hear the matter would be in breaches of Articles 10, 11 and 14, Protocol 1, Article 3.  This would be taken in the context of interpreting: -
	(a)	The employer’s duty to act reasonably, and
	(b)	The employer’s duty and obligations under the principles of mutual trust and confidence (ex parte Brand principle).
2	We would wish to submit arguments from the case of Smith –v- The Secretary of State for Trade & Industry – judgment being given at the Employment Appeal Tribunal in October 1999.  Copy is attached.
3	The case of Nash –v- Mash/Rose Group {1998) IRLR 168.
4	Article 119 of the EC Treaty.”

4	It is probably fair to describe those submissions as Delphic.  They were considered by a Chairman, Mr J R Hardwick, and by order dated 1 March 2000 he struck out the Originating Application and the complaint of age discrimination under Rule 13(2)(d) of the then 1993 Rules of Procedure as being frivolous in the sense of having no reasonable prospect of success since the complaint did not fall within the jurisdiction of the Tribunal.  At the request of the Appellant’s representative the Chairman then provided extended written reasons for his decision dated 6 April 2000.  In essence, he could see no relevance in the written submissions made; the Employment Tribunal is a creature of statute and there is no statutory bar on age discrimination.

5	Against that decision the Appellant appealed by a notice dated 16 May 2000, settled by Ms Karon Monaghan of counsel.  It was there contended that the Originating Application did disclose a cause of action under the Sex Discrimination Act 1975 in that an upper age limit on candidates for election was indirectly discriminatory against men and unlawful under Section 13 of the Sex Discrimination Act. – Sawyer v Ahsan [1999] IRLR 609.

6	The appeal came before a division of the Employment Appeal Tribunal presided over by Judge Levy QC on 14 December 2000.  The matter was permitted to proceed to this Full Hearing on the original grounds set out in the Notice of Appeal together with additional grounds later set out in an Amended Notice.  They were, first, that the Tribunal had no power to strike out the complaint under Rule 13(2)(d) on the grounds that it had no reasonable prospect of success or no prospect of success without a hearing in public.  Secondly, reliance was placed on the Human Rights Act 1998.

7	The appeal was resisted.  By their answer the Respondent contended that the Tribunal did have power to strike out under Rule 13(2)(d), proper notice having been given under Rule 13(3); Article 6 of the ECHR, Schedule 1 to the Human Rights Act, had no application; although the Notice of Appeal referred to a claim brought under the Sex Discrimination Act no such claim was raised in the Originating Application; in any event no breach of the Sex Discrimination Act was made out.

8	The appeal was listed for Full Hearing today.  On 10 December the Appellant’s now solicitors lodged a draft consent order, signed by both parties, in the following form:

“It is ordered by consent:
1	That the appeal be allowed and that the decision of the Employment Tribunal be set aside; and
2	That Employment Tribunal case no. 2700403/00 (No.EAT/0631/00/MAA) be remitted to a fully constituted Employment Tribunal for a determination on the merits of the applicant’s complaints therein.

I was not prepared to make that order without knowing on what basis such agreement had been reached.  I directed that skeleton arguments be lodged and that the case remain in the list, following Paragraph 13.4 of our Practice Direction.  Today Ms Monaghan appears on behalf of the Appellant and Mr Ford on behalf of the Respondent.

9	In fact, although there is agreement as to what should happen, the basis for that course was not clearly agreed on the face of the skeleton arguments.  In particular, Mr Ford did not accept Ms Monaghan’s analysis of the application of the Sex Discrimination Act to the facts of this case.

10	The question for us is whether the Tribunal below did fall into error in making the strike out order.  Without an error of law we have no jurisdiction to allow this appeal, even by consent.

11	The first problem, as we see it, with the course adopted by the Chairman, arises from the initial letter of 10 February 2000, in which it is said that the Originating Application would not be processed pending the Appellant’s representative’s reply.  Rule 1(2) of the 1993 Rules (now to be found in Rule 1(3) of 2001 Rules) provided that:

“Where the Secretary is of the opinion that the originating application does not seek or on the facts stated therein cannot entitle the applicant to a relief which a tribunal has power to give, he may give notice to that effect to the applicant stating the reasons for his opinion and informing him that the application will not be registered unless he states in writing that he wishes to proceed with it.”

Such notice was given by the Appellant’s representative by his letter of 24 February 2000.  He wanted to proceed, if necessary to a Preliminary Hearing on jurisdiction under Rule 6(1) of the 1993 Rules.

12	In these circumstances Rule 1(3) of the 1993 Rules (now Rule 1(4) of the 2001 Rules) provided:

“An application in respect of which such a notice has been given shall not be treated as having been received for the purpose of rule 2 unless the applicant intimates in writing to the Secretary that he wishes to proceed with it; and upon receipt of such an intimation the Secretary shall proceed in accordance with that rule.”

Accordingly, the Tribunal were then bound to proceed in accordance with Rule 2, which provided that the Secretary, having received the Originating Application, shall send a copy of it to the Respondent, sending the Respondent a notice about the time for entering an appearance.  

13	In the event the mandatory provision of Rule 1(3) was not complied with by the Tribunal.  Instead of requiring the Respondent to enter a Notice of Appearance the Chairman proceeded to strike out an Originating Application, which it appears had not formally been registered, purportedly under Rule 13(2)(d).  That course, in our judgment, was procedurally flawed.  Further, we accept Ms Monaghan’s submission, not opposed by Mr Ford, that under Rule 13(2)(d) of the 1993 Rules it was not sufficient in order to strike out an Originating Application that it disclose no reasonable cause of action.  That lacuna has since been filled by the wording of what is now Rule 15(2)(c) of the 2001 Rules, which provides an additional ground for strike out, namely where the claim is “misconceived”.  However, that Rule was not in force at the time when the Chairman made his order in the present case.

14	Instead, what ought to have happened, in our view, was that the Originating Application should have been registered; a Notice of Appearance entered, and if, as was the case in the Respondent’s answer to this appeal, a jurisdictional point was taken, that might appropriately have been dealt with at a Preliminary Hearing under Rule 6(1) of the 1993 Rules.  It would then have been open to the Appellant to seek leave to amend his Originating Application to spell out his claim that he seeks to bring under the Sex Discrimination Act. 

15	It is in these circumstances that we find the Tribunal Chairman to have fallen into error.  Accordingly we shall allow the appeal and give the following directions pursuant to our powers under Section 35(1)(a) of the Employment Tribunals Act 1996.

(1)	The Originating Application presented on 9 February 2000 shall be treated as having been registered.
(2)	Without opposition from the Respondent we shall permit the Appellant to amend his Originating Application first to alter the name of the Respondent to Mr David Triesman, who has replaced Mrs Margaret McDonagh in the office which she held in the Labour Party, and secondly to spell out his sex discrimination claim, such amended application to be served on both the Employment Tribunal and the respondent within 21 days of today.
(3)	The time for the Respondent to enter a Notice of Appearance will be extended to 21 days after the service on him of the amended Originating Application.
(4)	The matter is remitted to the Reading Employment Tribunal for a Full Merits Hearing by a differently constituted Tribunal of 3 members.  

Since no jurisdictional point is now taken on the proposed amended claim brought under the Sex Discrimination Act a Preliminary Hearing will not be necessary.  The Employment Tribunal will give directions for the substantive hearing of the case and any other consequential directions.