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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Uwhubetine & Anor v NHS Commission Board England & Ors (PRATICE AND PROCEDURE - Striking-out/dismissal) (Rev 1) [2019] UKEAT 0264_18_2304 (23 April 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0264_18_2304.html Cite as: [2019] UKEAT 264_18_2304, [2019] UKEAT 0264_18_2304 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
DR S UWHUBETINE
DR E NJOKU |
APPELLANT |
(2) CLINICAL GROUP COMMISSION GROUP (3) DR DAVID BLACK (4) DR DAVID BROWN |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant |
MS MARY O'ROURKE QC (of Counsel) Instructed by: Slater Heelis Solicitors LLP Oaklands House 2nd Floor Suite 2 34 Washway Road Sale Manchester M33 6FS |
For the First, Third and Fourth Respondent (NHS Commission Board England, Dr David Black and David Brown) |
MR SPENCER KEEN (of Counsel) Instructed by: Messrs Blake Morgan Solicitors One Central Square Cardiff CF10 1FS |
For the Second Respondent (Clinic Group Commission Group) |
MR ANDREW SUGARMAN (of Counsel) Instructed by: DAC Beachcroft LLP St Paul's House 23 Park Square South Leeds LS1 2ND |
SUMMARY
PRATICE AND PROCEDURE – Striking-out/dismissal
The Claimants had presented a claim form making multiple allegations of treatment contrary to the Equality Act 2010 and by way of whistleblowing detriment, against four Respondents, over a period of several years. The Employment Tribunal had determined, after hearing argument at a Preliminary Hearing, that documents tabled on behalf of the Claimants had materially failed to comply with the terms of an Unless Order requiring a Scott Schedule, and had therefore been dismissed automatically at the moment when time for compliance had expired. During the course of the hearing before the EAT, the challenge to that decision as it related to the Second Respondent was abandoned. The appeal in that respect was therefore dismissed. In relation to the other three Respondents:
Held: Having earlier taken a wrong turn, the Tribunal had correctly decided at the hearing in question that it needed to determine whether there had been material non-compliance with the Unless Order, before considering any other substantive issues: and, if so, then to give written notice to the parties confirming what had occurred. The Claimants' representative had had a fair opportunity to make submissions on the issue at the hearing in question. The Tribunal had been entitled to find that there was material non-compliance in respect of a number of the allegations covered by the Order. The terms of the Unless Order were extremely wide and draconian. In particular, their natural meaning was that, as a result, all of the claims had stood dismissed. However, the Tribunal Judge's task at the hearing in question had been solely to consider whether there had been material non-compliance, and, if so, the consequences that had flowed from that in accordance with the terms of the Unless Order. There had been no appeal in respect of the making, or terms, of the Unless Order itself; and the EAT could not, as part of its consideration of this appeal, interfere with it. The appeal as a whole was therefore dismissed.
HIS HONOUR JUDGE AUERBACH
"The 4 Respondents had from April 2013 onwards mapped out series of strategies to harass, discriminate and victimise the Claimants because the surgery which was previously under the supervision of a white English GP partners have now been under the management of black British GP partners, and the 2nd Claimant contends that he had been victimised and harassed for blowing the whistle and has been suffering detriment as a result of this."
The Particulars go on to allege that in 2016 they also sent a grievance about what was going on to the NHS Chief Executive, but that no action was taken.
"The claimants' details of claims documents attached to the ET1 is lengthy, (82 paragraphs) but it was agreed today that further and better particulars were required. Among other things, many of the allegations are levelled at 'the respondents' and counsel for the respondents point out that they need to know whether each of those allegations, apparently against all four respondents, is actually directed at them. In addition, in respect of the "corporate" respondents there needs to be an identification of which particular individuals allegedly unlawfully discriminated against the claimants. In certain cases some dates are missing."
Further on he said it would also be helpful if more Particulars were given of the alleged protected acts and disclosures. He identified a number of jurisdictional issues to be determined at the June hearing and noted that there were also further time issues and possible other jurisdictional preliminary issues and possible consideration to be given to linking these claims to separate claims that had been brought against the CQC.
"2. The claimants will prepare a Scott schedule which will identify each act of less favourable treatment, unwanted conduct or detriment that is alleged; the date when it is said to have occurred; which respondent or respondents are regarded as potentially liable and in the case of the first and second respondents which individual within those organisations is said to be the perpetrator. The Scott schedules in respect of each claimant will be served on all respondents no later than 7 March 2018."
Further preparation directions were given in respect of the Preliminary Hearing which was listed for 12, 13 and 14 June. Also arising from that hearing a Deposit Order was made in relation to certain jurisdictional arguments.
"In any event no Scott Schedule has been prepared as required by Order 2. I will in a separate document be making an Order so that the Claimants re-file their amended Particulars showing precisely how and where they have been amended to deal with the matters in Order 1 and I will make an unless Order with regard to Order 2 which has not been complied with at all."
"1. The Claimants will re-file the Details of Claim document (that they filed on 5 March 2018) clearly indicating where and how that has been amended so as to provide the information required by paragraph 1 of the Order made on 14 February 2018. If that document did not include the required information that must now been provided.
2. In either case, that is to be done no later than 28 March 2013.
3. The Claimants are required to comply with paragraph 2 of 14 February Order (Scott Schedule) by 28 March 2018 and UNLESS they do their claims will be struck out without further notice."
"Regarding to Order 1 the details will state inter alia that the 1st respondent is vicariously liable to the acts of the 2nd , 3rd, and 4th respondents and the various acts of harassment, discrimination and victimisation set out above are being carried out by all the respondents in both capacities as 1st respondent and 2nd respondents thus there is no material difference between 1st respondent and 2nd respondent.
The Claimants have further inserted dates and the specific respondent/s liable for various acts set out above in addition to the SCOTT SCHEDULE now added."
"The Scott Schedule is not compliant with the terms of the second Order (now in unless form) because it does not specify which individual at the 2nd respondent is allegedly responsible for the allegations against the 2nd respondents. More fundamentally however, the Scott Schedule is meaningless in the light of the claimants continued and unexplained failure to comply with the first Order. Nearly five months after the claims were presented the second respondent still does not know what is the legal or factual basis (by reference to the EqA or any other enactment) for the claims against it."
That application was supported, in an email the same day, by the solicitors for the other Respondents, who said they agreed with it and supported the application and asked the Tribunal to dismiss the claims against their clients.
"I cannot see that any of the alleged deficiencies in the Scott Schedule will prejudice the respondents in putting their cases as far as the jurisdictional issues are concerned. Accordingly, I do not consider that the Overriding Objective would be achieved by arranging a hearing in the meantime on the unless matter. Preparing for that hearing is likely to distract the parties from preparing for the preliminary hearing to determine jurisdictional issues listed for June 2018. Accordingly, I intend to postpone further consideration of the respondents' current applications until after the June hearing by which time it will be known whether all or any of the complaints survive."
"16. This morning, the respondents' counsel urged upon me the determination of the question of material non-compliance now. Their submission on was that the cases have effectively been struck out by reason of the unless order and it makes no sense to expend time and resources determining jurisdictional issues upon a case that has been struck out anyway. The claimants' counsel urged upon my the determination of the jurisdictional issues and preliminary issues, pursuant to the order. It was submitted on behalf of the claimants that the Tribunal did not list the issue of material non-compliance with the terms of the unless order for determination today. He pointed to the letter of 27 April 2018 cited at paragraph 15 in support of his position. The respondents say that there will be no prejudice to the claimants in determining that issue first because the claimants' counsel is able to make representations upon the issue (and indeed did so this morning).
17. Rule 2 of schedule 1 to the 2013 Regulations sets out the overriding objective of the Rules of Procedure. The overriding objective of the Rules is to enable Employment Tribunals to deal with cases fairly and justly including so far as practicable dealing with cases in ways which are proportion to the complexity and importance of the issues, avoiding delay so far as compatible with proper consideration of the issues and saving expense. Rule 53(1) provides that at a preliminary hearing a Tribunal may (amongst other things) determine any preliminary issue (that term meaning "any substantive issue which may determine liability": Rule 53(3)).
18. The claimants' counsel made detailed submissions this morning in which he sought to defend the claimants' position that there had been material compliance with the unless order. I am satisfied therefore that the claimants were not prejudiced by a determination today of the question of whether or not the claim had been struck out when the clock struck midnight on 2819 March 2018 and that consideration of that issue first is entirely consistent with the overriding objective. It is in my judgment an exercise in futility to spend considerable time and resource determining the preliminary issues identified on 14 February 2018 in circumstances where that would be for nought anyway were the Tribunal to determine that the claims were struck out by reason of non-compliance with the unless order in any event. In my judgment, it makes eminent sense to deal with the question of compliance with the unless order first. This is just to both parties, is proportionate (at the Tribunal's and the parties' time will not be expanded dealing with the issues set out in the case management order and which may have become academic by virtue of the operation of the unless order). Further, determination of that preliminary issue may save considerable expense in avoiding the need for a three day hearing in order to determine those issues."
"20. Where there is non compliance with an unless order in any material respect a Tribunal has no discretion as to whether or not the claim or response as the case may be should be struck out. The claim or response is automatically struck out as at the date of non compliance and there is no requirement for a further order addressed to the party against whom the unless order was made.
21. The issue before me therefore is whether or not there has been material compliance with the unless order. What is relevant in this, case (that is to say, material) is whether the particulars given enable the respondents to know the case they have to meet or to enable the Tribunal to and understand what is being asserted. Given the automatic effect of an unless order it is important that the relevant parties are given clear unequivocal notice of the order. When a claim or response is dismissed following a failure to comply with' an unless order the Tribunal must give written notice to the parties confirming what has occurred.
22. The claimants' counsel sought to argue that as the Tribunal has not given such a written notice pursuant to Rules 38(1) then the unless order has not yet taken effect. Counsel for the second respondent argued that the claimants had effectively misunderstood the operation of Rule 38(1). He submitted that the notice requirement in Rule 38(1) is not a necessary pre-condition to the unless order taking effect where there is material non-compliance with it. The notice provision is a formality to confirm what has occurred by way of the operation of the unless order. I agree with Mr Sugarman's submissions. In my judgment, the terms of the unless order of 21 March 2018 are very clear. The claimants were required to comply with paragraph 2 of the order of 14 February 2018 and unless they do so the unless order made plain that their claims would be struck out without further notice. I would have agreed with the claimant's counsel had the order itself included words to the effect that the unless order would not operate against the claimants' absent notice from the Tribunal pursuant to Rule 38(1). However, those words were not included within the terms of the unless order.
23. The Judgment that I caused to be sent out on 22 June 2018 constitutes the necessary written notice confirming what has occurred. l note in passing that the claimants have not, as they were entitled to do pursuant to. Rule 38(2), applied in writing within 14 days on 22 June 2018 seeking to have the order that I made on that day set aside in the interest of justice. All that has occurred is that the claimants' counsel has made a request for these written reasons.
24. I therefore turn to the key issue which is whether or not there has been material non-compliance with the unless order. The question I have to ask is whether the particulars given (in the form of the Scott schedule) enable the respondents to the claim to know the case they have to answer or to enable the Tribunal to understand what is being asserted. It is worth re-visiting, in this connection, paragraph 2 of the order made on 14 February 2018. This is set out at paragraph 8 above.
25. It is plain that there has been material non-compliance in this case. The Scott schedule fails to identify the individuals at the first and second respondent said to be responsible for the impugned acts of discrimination. There has been a failure to give the date when incidents are said to have occurred in some respects. Very wide timescales have been given (for example upon the first page of the Scott schedule the dates of the impugned acts are said to have occurred between 9 April 2013 and 20 July 2015). Similar wide timescales are given in places upon the second page of the Scott schedule (the allegations of 'inciting and inviting of CQC to carry out racially aggravated inspections' were said to have occurred between 14 August 2013 and 16 June 2015). Similar wide timescales can be, seen on the third page of the Scott schedule (in particular the final entry).
26.There has been no attempt to identify the acts of less favourable treatment, unwanted conduct or detriment that had been alleged. In general terms there has simply been a cross-reference back to the particulars of claim (which were in the event not amended pursuant to paragraph 1 of the order of 14 February 2018: I am of course cognisant of the fact that there was no unless order in place in relation to the question of further particularisation of the claimant's claim. The unless order operates solely upon the failure to serve a Scott schedule compliant with paragraph 2).
27. Mr Keane gave as an example of material non compliance ground J set out in the Scott schedule (upon the second page). This ground of claim was that "the claimants' former practice manager resigned and got employed by the fourth respondent". This cross-refers to paragraph 23, 26 and 27 of the grounds of claim. Neither the Scott schedule nor those grounds of claim give any explanation compliant with Employment Judge Little's order of 14 February 2018 (later the subject of the unless order) as to the alleged act of less favourable treatment, unwanted conduct or detriment that is alleged. Mr Keane made similar well-founded points about grounds L, M and Q.
28. The first and second respondents are in reality no wiser by reason of the Scott schedule as to the allegations made against them. This is a material failure.
29. The claimants' counsel also failed to make any satisfactory submissions as to how it was said that the claimants had materially complied with the unless order. The claimants' counsel prayed in aid the overriding objective in Rule 2 of the 2013 Regulations to which I have referred and the need to avoid unnecessary formality. The difficulty with that submission is that the unless order was made in circumstances where the claimants had had opportunities to properly plead their case and had failed to do so. The unless order was therefore a necessary formality in pursuit of the overriding objective. It was a necessary formality because the respondents had to know the case they have to meet and the Tribunal has to understand what is being asserted neither of which was possible given the state of the claimants' pleadings prior to 21 March 2018.
30. My conclusion therefore is that the claimants have failed to materially comply with the unless order. A consideration therefore of the jurisdictional issues identified by Employment Judge Little is rendered otiose as the claims were struck out by reason of the operation of the unless order at the stroke of midnight of 28/29 March 2018."
"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal).
a. The Employment Judge erred in law in finding that there was material non-compliance by the Claimants with an unless Order made on the 21 March 2018 as to service of a Scott Schedule in that if fairly considered and cross-referenced to the Claimants' claim document served in conjunction with the Scott Schedule there was in fact substantial compliance which document set out the chronological history of events and explained the composite dates and the involvement of many named individuals.
b. In any event the Employment Judge erred in law in ruling that the claim had been struck out on 12 June 2018 when (i) the hearing scheduled for 12 June 2018 related to a preliminary issue in respect of which a deposit had been ordered and paid and (ii) when the scheduled 3 day hearing wherein he made his Order had been fixed for trial of a preliminary hearing as to jurisdictional matters and the Tribunal had not complied with Rule 38 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 by serving written notice under Rule 38(1) following the relevant date of 28 March thereby depriving the Claimants of the saving provisions of applying for a set aside within 14 days of the notice being sent.
c. The Employment Judge erred in confusing paragraph 1 of the Order made on 21 of March with paragraph 2. Paragraph 2 only contained an unless Order. The non-compliance was with paragraph 1. The Employment Judge confused the two and intermixed them when attempting to provide reasons for material non-compliance with that part of the Order which was an unless order and in particular by his focus on the Respondents having particulars which enabled them to know the case against them (rather than a Scott Schedule).
d. The Employment Judge erred in law in striking out the claims retrospectively or deemed them struck out as of 3 months earlier (when no notice was served by the Tribunal for non-compliance) and when the Order of 21 March was not clear in its consequences and the interplay with Rule 38 of the 2013 Rules.
e. The Employment Judge erred in that he accepted there was no prejudice to the Respondents in relation to the Scott Schedule not being particularised and yet decided to strike the Claimant's claim out in any event.
The decision of the Employment Judge was perverse in all the circumstances.
g. The Employment Judge failed to give proper reasons for his determination to strike out the Claimants claim when looked at in all the circumstances."
As I have said, HHJ Eady QC considering the grounds for appeal on paper allowed all of them to proceed to a Full Hearing.
"Unless orders
38.—(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.
(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.
(3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in Rule 21."