Appeal No.	 EAT/0358/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 June 2003

Before
HIS HONOUR JUDGE D M LEVY QC
(SITTING ALONE)

MR A M KHASHABA	APPELLANT

MEDACS HEALTHCARE SERVICES PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

 
For the Appellant	No appearance or
representation by or 
on behalf of the Appellant
	
For the Respondent	MR S GORTON
(of Counsel)
Instructed by:
Messrs Eversheds
Solicitors
70 Great Bridgewater Street
Manchester
M1 5ES	

HIS HONOUR JUDGE D M LEVY QC

1	This is an appeal by Mr A M Khashaba, who has not appeared this morning.  The Respondent is represented by Mr Simon Gorton.  Permission for the Appellant to bring this appeal was given by Order of this Tribunal by Judge McMullen on 13 May 2003.  

2	The background to the appeal is this: 
(a) the Appellant allegedly commenced employment with Medacs Healthcare Services PLC on 22 July 2002.  He alleged that his employment with the Respondent was terminated on 23 August 2002.  

(b)  On 23 October 2002, he made an application (his IT1 is at page 4 of the bundle) claiming among other things that the Respondent had failed to supply written reasons for his dismissal.  The IT3 of the Respondent followed on 15 October; the main point taken was that the Appellant was not an employee and that he had terminated his own assignment.  Directions from an Employment Tribunal sitting in Cardiff were given on 23 October 2002 which provided that the Appellant was to prepare particulars of his claim; the proceedings were transferred from Cardiff to London Central.

(c)  On 22 January 2003, a Chairman sitting alone, held a directions hearing at London Central and made an Order (“the January Order”).  The Appellant did not attend; directions were made which are the subject of this appeal.  A full hearing of his application was listed for 28 and 29 April 2003; that was later amended to 2 and 5 May 2003.  As a result of this pending appeal, that date has been vacated; subject to the result this appeal, the full hearing will be relisted.  

3	It is necessary at this stage to look at paragraphs of the January Order following the January Directions hearing.  The Order is at pages 14/15 of the Bundle prepared for this hearing by the Appellant, a bundle by no means in chronological order.  
“4    The following directions were made:
(iii)	On or before 5 March 2003, each party is to disclose to the other all documents in its possession, power or control which are relevant to any issue in the case and/or on which that party wishes to rely.  The parties are reminded that they must disclose not only documents which support their case, but also documents which support the other side’s case or are adverse to their own case.  Disclosure can be complied with by sending photocopied documents to the other side, together with a list of such documents”
(iv) On or before 5 March 2003, the Appellant is to prepare and send to the Respondents, with a copy to the Tribunal, a schedule of loss or compensation claimed, setting out all his financial claims in the case.  Such schedule should be supported by all relevant documentation such as those containing details of all subsequent employment and pay and any correspondence relating to his search for employment.
(v) On or before 19 March 2003, the parties are to agree a single bundle of documents for the use of the Tribunal, which should be indexed, paginated and in chronological order.  The Respondents’ solicitor is to be responsible for compiling the bundle and ensuring there are sufficient copies of the bundle for the Tribunal hearing.”

The deadline for the giving disclosure of the documents under (iii) was 5 March 2003; the Respondent failed to comply with that deadline.  

4	On 10 March 2003, as a result of the Respondent’s failure, the Appellant wrote a letter which is found at page 22 of the bundle.  It invited the Tribunal to strike out the claim and sought the award of costs because of the failure to deal with disclosure in time.  The manuscript note of the Appellant contains no allegation of prejudice and there is no suggestion that the late discovery would not lead to a fair trial.  The central part of the letter, like all those of the Appellant, is in manuscript and reads thus:
“The Respondent is in material breach of your interlocutory order for which their case should be struck out and costs awarded to me because their behaviour is contumacious and leaves me on unequal footing.  This is the second time (first was a disclosure order delay) for the respondents have failed to comply with the Chairman’s order - yet they appear to be getting away with it.  This strikes me as bias, especially where the EAT rules are plainly written in English for all to read for those with an interest in the administration of justice.”

5	On 19 March (page 23 of the Bundle) the Appellant send a further letter the Employment Tribunal stating that he was yet to receive a response from the Tribunal on the earlier letter of 10 March 2003.  The Appellant then also alleged that the Respondent had not complied with directions (v) by failure to agree to a single agreed bundle.  In the middle of the letter a question is raised:
“How can I be on an equal footing?”
The letter concludes:
“I have demonstrated 3 failures to comply with the ET’s order:-it would be biased of the ET to allow this injustice to be ignored without prescribed action especially as I am myself also obliged to follow the order.  Please do not forget that the respondents were at the hearing in which you made these dates and which the respondents no doubt agreed upon!  So again, I ask for administration of justice as per ET rules.”

6	On 21 March 2003 the Employment Tribunal wrote two letters, one (page 24 of the bundle) a polite one to the Appellant, acknowledging receipt of his two letters and apologising for the delay in replying and stating that the Respondent’s comments were being sought.  The other (page 25) was to the Respondent seeking those comments.  

7	On 24 March the Respondent wrote to the Appellant: 
“We enclose a copy of our response [to the Employment Tribunal] together with a paginated bundle including the documents you supplied to us together with the additional documents we supplied to you.  At the start of the bundle we have also included the Originating Application and Notices of Appearance.  
You will note from our letter to the Tribunal that we have requested additional documents be included in the bundle.  These relate to the fact that, as we understand it, payment for your services has been via a limited company known as The Surgeon Limited.”
8	The letter to the Regional Secretary (page 27 of the bundle) was rather longer.  It recognised its failure to meet the deadlines set out in the January Order and commented on them.  In the second paragraph, it says of the failure to comply with direction 4(iii) (disclosure of documents):
“We accept that we were in breach of this direction.  On 10 March 2003 we wrote to the Applicant enclosing the additional documents we would be including in the Tribunal bundle and apologising for the delay.  We attach a copy of that letter.
By letter of 19 March 2003 the Applicant complains of a failure to comply with direction 4(v), namely the creation of a single bundle of documents.  We would note that we have had no communication from the Applicant concerning agreement to a single bundle or in respect of any alleged failure to comply with this direction.  We have today sent to the Applicant a fully paginated bundle and attach a copy of our letter to him.”

9	On 28 March 2003 (page 29 of the bundle) the Chairman wrote a letter from which this present appeal stems:
“I refer to recent correspondence from the parties.  The Chairman, Mr Sigsworth, has considered this and has decided not to make any orders at present.  The Tribunal expects the parties to co-operate in the preparation of the case for the hearing, and comply with the Tribunal’s directions.”

10	Receipt of that letter led to the Notice of Appeal lodged by the Appellant dated 1 April 2003 (page 1 of the bundle ).  Paragraphs 3 & 5 read:
“3. The appellant appeals from (here give particulars of the decision of the employment tribunal from which the appeal is brought including the date):  
In his letter of 28/3/03 Chairman’s decision to flout ET rules and his own orders!  Error and Bias are Procedural Irregularity.  Chairman listed hearing (full) for 1st and 2nd May 2000 but I would like this postponed until the preliminary issue of failure to comply to orders of the respondents is resolved in the interests of justice.
5.  A copy of the employment tribunal’s decision or order and of the extended written reasons for that decision or order are attached to this notice.  
His letter of 28th March 03 that I received today! Despite 1st class post.

11	The grounds upon which this appeal is brought are then set out.
“Bias and Error in law and Procedural Irregularity:
1) Failure of Chairman (Mr Sigsworth in London ET) to cooperate and enforce his own order.
2) Failure to list respondent’s case for strike out and costs, for failure to comply with interlocutory orders of chairman.
3) Chairman showed considerable bias against me in his handling of the case, procedurally inept, and I have no chance of a fair hearing if respondents (+ Chairman) allowed to flout the ET orders, and rules”

12	Following receipt by the EAT of the Notice of Appeal, Judge McMullen gave directions (page 36 of the bundle) for the appeal to be heard by a Judge alone after the Respondent’s Answer had been received.  

13	On 29 March 2003, the Appellant raised a document headed “Questions of Preliminary Issue” (pages 30/31 of the bundle. This was received by the Tribunal on 30 March.  He also prepared a witness statement (pages 32/35 of the bundle) on 31 March and swore an affidavit on 11 April 2003 (page 35 of the bundle).   The Chairman responded to the affidavit in a document (at page 38 of the bundle). In paragraph 1, he sets out the Order of 22 January, the essential paragraphs of which we have set out.  In paragraph 2 he refers to the letters which were sent by the Applicant to the Tribunal.  In paragraph 3 he refers to the steps taken by the Tribunal staff.  He refers to the letter of the Appellant dated 24 March, (mistakenly he says it was dated 27 March) on which he comments:
 “4.  I took the view that the Applicant had not been prejudiced by the short delay in the disclosure process by the Respondent and that the fairness of the hearing, still weeks away, was not likely to be affected.  The Tribunal therefore wrote to the parties on 28 March, saying that no orders would be made and warning the parties to comply with directions.
5.  The above is the sum total of my involvement in the case.”
Having mentioned his absence elsewhere, the document continues:
 “…. I refute entirely the allegations of bias and improper conduct.  As always in the interlocutory stages of a case, my main concern is to try and ensure that the case is ready for the full merits hearing, without burdening the parties with unnecessary orders or hearings.  I considered that the case was on track, and that the early preparation of a draft bundle meant that the parties should be ready to exchange witness statement on the directed date of 2 April.”

In the absence of the Appellant, I have read the documents which I have mentioned and set out the background of the Appeal at some length.  I am very anxious that he should be able to understand that his appeal has been very fully considered in his absence.,

14	In his Skeleton Argument in support of the Order which he seeks, which have been supplemented by his oral submissions, Mr Gorton suggests that the Appellant is suggesting that the Chairman’s Decision of 28 March was wrong on possibly three grounds (a) the Employment Tribunal should have enforced its Order; (b) it was wrong in law for the Employment Tribunal to fail to have listed the case for a strike-out hearing; (c) the ET Chairman was biased against the Appellant in making his decision.  

15	Of the relevant rules, he has drawn my attention to the appropriate rule to strike out which is found at page 1610 in the current edition of Butterworths in Schedule 1 Rule 4(1) and 4(8).  Rule 4(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations. Regulation 11 reads:
“Case management
(1)	A tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate”
“If a requirement under paragraph (1) or (5) is not complied with, the tribunal - 
(a) may make an order in respect of costs under rule 14(1)(a) or 
(b) before or at the hearing, may strike out the whole or part of the originating application, or, as the case may be, the notice of appearance, and where appropriate, direct that a respondent may be debarred from defending altogether ;
but a tribunal shall not exercise its powers under this paragraph unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so, or the party has been given an opportunity to show cause why the tribunal should not do so, or the party has been given an opportunity to show cause orally why the powers conferred by this paragraph should not be exercised.”

16	I was also referred to the overriding objectives of the Rules in Regulation 10 which are found at page 1606 of the current edition of Butterworths.
“10(1)  The overriding objective of the Rules in Schedule 1 ….. is to enable the tribunals to deal with cases justly;
(2) Dealing with such a case justly includes as far as practicable 
(a) ensuring the parties are on an equal footing
(b) saving expense
(c) dealing with the case with ways which are proportionate to the complexity of its issues
(d) ensuring that it is dealt with expeditiously and fairly.”

17	Before dealing with the allegation of bias, Mr Gorton made a number of short submissions, all of which I accept.  
(1) there was no error of law in the Decision of the Tribunal - the core reason given by the Chairman for refusing the application was that he took the view that the Applicant had not been prejudiced by the short delay in disclosures process by the Respondent.  The fairness of the hearing, still weeks away, was not likely to be affected.  This was a proper approach.

(2)  The Chairman was exercising discretionary power under rule 4(8) whilst having regard to the overriding objective under regulation 10.  That was a discretionary exercise of his power. Thus any such decision can only be overturned if it was a perverse exercise of the Chairman’s discretion.  It was an extremely high hurdle for the Appellant to overcome. 

(3)  The notice of appeal advanced no ground as to why, in the Appellant’s view, the decision was perverse.  The Appellant’s complaint is that the Employment Tribunal did not make the order the Appellant sought.  This, he submitted, is not a permissible ground of appeal.  

(4)  The merits of the decision are overwhelming: there was no prejudice claimed or identified by the Applicant in his application, the relatively minor default had swiftly been remedied

(5)  The Chairman found that a fair trial was eminently possible.

(6)  There were no grounds for concluding the default was contumacious or intentional.
I accept that submission.  

(7)  In his letters, the Applicant did not in fact seek that an application be listed to strike out or for costs, furthermore;

(8) that the Chairman was entitled to consider the matter under his wide and discretionary case management powers.  He received both parties’ representations on the point and then formed a view that it was inappropriate “at present” to make an order.  This was an entirely appropriate exercise of his case management powers and directly in accordance with the overriding object.

18	On the allegation that the Chairman was biased Mr Gorton submitted that was no more than an extension of the argument that the failure of the Chairman to exercise his discretion in favour of the Appellant was because he was biased towards the Respondent or biased against the Appellant.  

19	Mr Gorton drew my attention to the decision of the Court of Appeal in Locabail (UK) Ltd -v- Bayfield Properties Ltd [2002] IRLR 96, where reference was made to the speech of Lord Goff in R -v- Gough [1993] AC 646.  In my judgment the failure of the Chairman does not remotely suggest that there was bias as discussed in those decisions or that his decision in exercising his discretion in giving directions was perverse.

20	In those circumstances I dismiss this appeal.