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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Texas Homecare Ltd v Anderson [1994] UKEAT 426_92_2804 (28 April 1994) URL: http://www.bailii.org/uk/cases/UKEAT/1994/426_92_2804.html Cite as: [1994] UKEAT 426_92_2804 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MORISON
MRS T MARSLAND
MR J A SCOULLER
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR J COUCH
(SOLICITOR)
Messrs Pattinson & Brewer
8-12 New Road
Chatham
Kent ME4 4QR
For the Respondent NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENT
MR JUSTICE MORISON: Following a hearing before an Industrial Tribunal held at Leeds on Friday 27 March 1992, the Tribunal unanimously decided that the complaint of unlawful racial discrimination made against Texas Homecare Ltd by a former employee Miss Anderson, had been proved. The complainant alleged that she had been dismissed because of her colour. She was a checkout assistant at her employers' store.
Following an incident in August 1991 in which she was the victim of an attempted mugging whilst on the way to work, she took time off work. The duty manager, whose evidence was substantially disbelieved by the Tribunal interviewed the complainant in early September 1991. She was dismissed because apparently the manager thought the whole affair was an elaborate hoax so that the complainant could take time off work to go to a carnival. Having found in favour of the Applicant the Tribunal awarded her £1,500 for injury to feelings and compensation for financial loss of £1,320 making a total of £2,800. The Tribunal refused the Applicant's application for costs on the grounds that the case turned essentially on the quality of the evidence and the defence was not frivolous, vexatious or otherwise unreasonable.
The Industrial Tribunal's decision was entered in the register on 16 April 1992 over 2 years ago. The employers lodged a notice of appeal on May 22 1992 contending that the Industrial Tribunal did not correctly address their minds to the question whether a white person would have been treated any differently. In the light of the finding that the manager was motivated unconsciously by a deep-seated racial prejudice, both in his approach to the events and to his conclusion that the Applicant should be dismissed, such an appeal would have appeared hopeless.
On 25 August 1992, the former President of this Tribunal was not prepared to dismiss the appeal out of hand and ordered it to proceed to a full hearing and that the Chairman be asked to produce his Notes of Evidence. Those Notes were provided to the parties at the end of September 1992. In accordance with that ruling the appeal proceeded towards a full hearing. By letter dated 22 February 1994, the parties were notified that the appeal was listed for hearing on 28 April 1994. A month after the receipt of that letter, and therefore about a month before the hearing was due to take place, the Appellants' solicitors Messrs Pattinson & Brewer, wrote to the Tribunal asking whether the Notes could be amended to reflect the notes made by the Appellants' representative at the hearing. This application was made about a year and a half after the notes were provided. That letter had to be referred to the Chairman of the Industrial Tribunal for his consideration. Not surprisingly, in view of the lapse of time, he has no recollection of the matter.
It is to be observed that the solicitors failed to comply with the procedure laid down by this Tribunal as long ago as 1977, Dexine Rubber Company Ltd v Alcar [1977] ICR 434 at 438, which procedure accords with common courtesy. Thus it was that more than two years after the hearing before the Tribunal and 2 years and 8 months after the dismissal, this appeal was due to be heard today, 28 April 1994.
On 25 April 1994 the Appeal Tribunal received a letter from the Appellant employers' solicitors saying that they were instructed by their clients not to proceed with the appeal. We are told, and accept, that this Court was given an informal indication a few days earlier that the appeal might not be effective, but it would not have been possible for this Tribunal to have acted on that information. They indicated in that letter that they had been unable to reach what they call "suitable terms" with the employee's Solicitors, about the withdrawal of the appeal.
This Tribunal is aware of a number of incidences in which parties are lodging Notices of Appeal knowing them to be hopeless, and/or never intending that the appeal will actually be advanced. The purpose for taking such a course is that advantages being taken of the considerable time lag between the lodging of the Notice of Appeal, and the listing of the case for a full hearing. The intention of this delaying tacit is to postpone payment and/or to force the employee to accept a lower sum in settlement in order to dispose of the matter.
In view of the order made in August 1992, to which we have referred, we cannot say that this is such a case. As a result, however, of the withdrawal of the appeal in this case, the Court's time has been wasted and other deserving litigants have had their cases delayed. We consider that the time has come when it should be made clear that if any party abuses the process of the Court in the way described, this Tribunal may decide to award costs against him. Further, it seems to us that Counsel and Solicitors owe duties to the Court, which include a duty not to abuse its process by putting their names to Notices of Appeal which are manifested hopeless, or which they know or ought to know, are being advanced for one of the purposes described above. In future where there are blatant cases of abuse, this Tribunal will consider taking appropriate steps to deal with such cases, including where appropriate, referring the matter to the professional bodies of those concerned with a view to disciplinary action being taken against them.
