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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Riniker v City & Islington College Corporation [2010] UKEAT 0495_08_2306 (23 June 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0495_08_2306.html Cite as: [2010] UKEAT 495_8_2306, [2010] UKEAT 0495_08_2306 |
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At the Tribunal | |
On 15 March 2010 | |
Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS URSULA RINIKER (The Appellant in Person) |
For the Respondents | MISS LUCY McLYNN (Solicitor) Messrs Bates Wells & Braithwaite LLP Solicitors Scandinavian House 2-6 Cannon Street London EC4M 6YH |
SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Time for appealing
1. Appeal by Claimant against a judgment confirming that her claim was struck out by reason of non-compliance with an "unless order". Appeal dismissed. There was no error of law in making the order. The Claimant's contention that the effect of applying to vary or discharge an "unless order" is to comply with the order is incorrect. Various other grounds of appeal rejected.
2. The Claimant has also sought leave to amend her Notice of Appeal to add an appeal against a judgment given dismissing her application for a review. This application was made notwithstanding that she had been refused an extension of time for appealing by the Registrar and that her appeal against that refusal had been dismissed. Application heard and dismissed by Registrar. Appeal dismissed. Held (1) it is the usual practice of the Appeal Tribunal to consider an original judgment and a review judgment as separate and to require a notice of appeal for each judgment or order. (2) Even if it is permissible to add an appeal against a different judgment or order by means of amendment, leave to amend ought only to be granted where in accordance with the Appeal Tribunal's usual practice an extension of time for appealing would be granted.
HIS HONOUR JUDGE RICHARDSON
The background facts
"1. The Respondents shall disclose to the Claimant by no later than 28 March 2008 the contract of employment and relevant pay scale for a full-time male lecturer engaged in the Language department with the name of the lecturer deleted.
2. The Claimant is ordered to provide to the Respondent on or before the 4 April 2008 a schedule of loss setting out the losses flowing from the dismissal and, if after the disclosure of one above any alleged losses under the Equal Pay claim.
3. Each party shall prepare a list of documents that they consider relevant to the issues to be determined by the tribunal which they intend to rely upon at the full merits hearing and serve so as to arrive with the other party on or before the 18 April 2008.
7.2 It is ordered that witness statements be mutually exchanged so as to arrive on or before Friday 13 June 2008.
8. There will be should it be necessary a case management discussion on the 19 June commencing at 10.00am to last no longer than two hours in the event that there are matters outstanding with regard to compliance of the above orders to ensure the case is fully prepared and ready to proceed on the 7 July 2008.
8.1 In the event that both parties agree the case management discussion is not required as there has been proper and complete compliance with the above orders they are to notify the tribunal by midday on the 18 June at the latest to vacate the case management discussion."
"If you have not already done so you are to comply with the Order to file your list of documents. You do not need information from the respondent's representatives to do so. In so far as the schedule of loss, this can be filed now; even if it does not take account of the Equal Pay claim."
"NOTICE OF ORDER
Notice under rule 10(8) and/or 13 and/or 19 Employment Tribunal Rules of Procedure 2004 of an Order made by an Employment Judge under rule 10(2) and/or 13 and/or 18
On the initiative of Employment Judge Postle the following Order has been made. Under rule 12(2) any party affected by the Order may apply to have it varied or revoked. Such an application must be made before the date ordered for compliance, in writing to this office and must include reasons for the application. A party who is legally represented is required by Rule 11(4) to provide all the other parties in writing with the information there set out.
ORDER
So as to arrive on or before midday on 18 June 2008, the Claimant is to comply with paragraphs one, two and 7.2 of the Tribunal's Order dated 11 March 2008
CONSEQUENCES OF NON-COMPLIANCE
AND TAKE NOTICE THAT unless this Order is complied with, the claim shall be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing."
"The Tribunal – having made an order requiring the claimant to provide certain information by midday on 18 June 2008 – which order contained a warning that in the event that the information was not supplied the claim would be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing, and – noting that the specified date has passed without compliance with the order or any request for an extension of time, now records that the claim has been struck out."
"1. By midday on 18 June the Claimant had not complied with the Order.
2. At 17.08 the Tribunal received a facsimile letter from the Respondent enclosing a letter from the Claimant applying to vary the order. The application did not contain a request for an extension of time.
3. In the circumstances I considered the application to vary the Order.
4. The Claimant objects that the Order is irregularly made because it was undated. There is no requirement for an Order to be dated. It was made on the 13 June 2008 and signed by the Judge, and in accordance with rule 10(8) it was sent to the parties by the secretary as soon as reasonably practicable.
5. The Claimant objects that the time for compliance was too short. The Order was made because the Claimant had failed to comply with previous Orders in similar terms for which ample time had been allowed.
6. The Claimant complains the Order is perverse because it requires her to comply with paragraph 1 of the previous Order which was in fact an Order against the Respondent. In those circumstances that part of the Order, made in error, could not require compliance by the Claimant and she was not, therefore, under an obligation to comply with that part of it. The Order was therefore not perverse.
7. The remainder of the application is an application for different Orders described by the Claimant as a variation. I have considered these. This does not excuse the Claimant's failure to comply.
8. In the circumstances I decided that it was appropriate to confirm the Order that the claim was struck out."
Statutory provisions relating to "unless orders"
"(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and Employment Judges to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable:--
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense."
"(1) Subject to the following rules, the Employment Judge may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of an Employment Judge considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of 'hearing').
(2) Examples of orders which may be made under paragraph (1) are orders--
(a) as to the manner in which the proceedings are to be conducted, including any time limit to be observed;
(b) that a party provide additional information;
........
(d) requiring any person in Great Britain to disclose documents or information to a party or to allow a party to inspect such material as might be ordered by a County Court (or in Scotland, by a sheriff);
(e) extending any time limit, whether or not expired (subject to rules 4(4), 11(2), 25(5), 30(5), 33(1), 35(1), 38(7) and 42(5) of this Schedule, and to rule 3(4) of Schedule 2);
........
(n) varying or revoking other orders;
......
(s) that a witness statement be prepared or exchanged; or
(3) An order may specify the time at or within which and the place at which any act is required to be done. An order may also impose conditions and it shall inform the parties of the potential consequences of non-compliance set out in rule 13.
(4) When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under rule 11 (applications in proceedings) for the order to be varied or revoked.
......
(8) Any order made under this rule shall be recorded in writing and signed by the Employment Judge and the Secretary shall [except where the order is for a witness order described in rule 10(2)(c) only] inform all parties to the proceedings of any order made as soon as is reasonably practicable."
"(1) At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held."
"(1) Subject to paragraph (2) and to rules 10(7) and 18(7), an Employment Judge may make an order on his own initiative with or without hearing the parties or giving them an opportunity to make written or oral representations. He may also decide to hold a case management discussion or pre-hearing review on his own initiative.
(2) Where an Employment Judge makes an order without giving the parties the opportunity to make representations--
(a) the Secretary must send to the party affected by such order a copy of the order and a statement explaining the right to make an application under sub-paragraph (2)(b); and
(b) a party affected by the order may apply to have it varied or revoked.
(3) An application under sub-paragraph (2)(b) must (subject to rule 10(2)(e)) be made before the time at which, or the expiry of the period within which, the order was to be complied with. Such an application must (unless an Employment Judge orders otherwise) be made in writing to an Employment Tribunal Office and it must include the reasons for the application. Paragraphs (4) and (5) of rule 11 apply in relation to informing the other parties of the application."
"(1) If a party does not comply with an order made under these rules, under rule 8 of Schedule 3, rule 7 of Schedule 4 or a practice direction, an Employment Judge or tribunal--
(a) may make an order in respect of costs or preparation time under rules 38 to 46; or
(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a Hearing make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.
(2) An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing.
(3) Employment Judges and tribunals shall comply with any practice directions issued under regulation 13."
"(6) Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The judgments or [orders] listed in paragraph (7) must be made at a pre-hearing review or a Hearing if one of the parties has so requested. If no such request has been made such judgments or [orders] may be made in the absence of the parties."
"(1) Before an Employment Judge or a tribunal makes a judgment or order described in rule 18(7), except where the order is one described in rule 13(2) or it is a temporary restricted reporting order made in accordance with rule 50, the Secretary shall send notice to the party against whom it is proposed that the order or judgment should be made. The notice shall inform him of the order or judgment to be considered and give him the opportunity to give reasons why the order or judgment should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if that party has been given an opportunity to give reasons orally to the Employment Judge or the tribunal as to why the order should not be made."
The appeal against the original judgment
"An order made will contain a time for compliance, which must be observed or be the subject of an application by any party to vary or discharge it, or to seek an extension of time. Otherwise, failure to comply with an order in time or at all may result in the EAT exercising its power under Rule 26 to strike out the appeal, cross-appeal or respondent's Answer or debar the party from taking any further part in the proceedings or to make any other order it thinks fit, including an award of costs."
The review judgment and the Claimant's attempts to appeal
"14. Like HHJ Ansell it has always been my understanding, as a matter of practice, that each separate judgment or order of an Employment Appeal Tribunal must be appealed by a Notice lodged within 42 days of the promulgation date of the individual judgment or order. .....
15. Rule 3(3) of the Employment Appeal Tribunal Rules deals with time for appealing judgments and orders of the Employment Tribunal. I see no warrant for suggesting, within that rule, that the time limit of 42 days can be circumvented simply by a timeous appeal against an earlier judgment or order .....
17. ....... even if it were possible to allow an amendment to add a later decision to the original appeal I would not do so in circumstances where the Respondent would be deprived of the opportunity to rely on the appeal against the review decision being out of time. Fairness must extend to both parties.
19. In these circumstances I affirm the settled practice in the Employment Appeal Tribunal. A fresh Employment Tribunal judgment or order post-dating an earlier Notice of Appeal against a previous judgment or order will require a fresh Notice of Appeal within the 42 day time limit."
"This leads to one further feature of the appeal which we must mention. The focus of the Appeal Tribunal, in its successive interlocutory orders since June and in the comments made at the preliminary hearing, has been on the validity of the decision dated 1 May refusing relief against sanction. The focus of the parties, in submissions for both the preliminary hearing and this full hearing, has similarly been on the decision dated 1 May. At present, however, the appeal is against the order dated 9 December 2008, the correctness of which is not really challenged, rather than the order dated 1 May. We pointed this matter out to the parties. Without objection from the parties, we have treated the appeal as an appeal against the order dated 1 May, granting an extension of time for those purposes and treating the grounds and skeleton arguments as dealing also with an appeal against the order dated 1 May."