Appeal No.	 EAT/128/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 July 2001
Judgment delivered on 26 July 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS T A MARSLAND
MR P A L PARKER CBE

MS N SIVANANDAN	APPELLANT

(1) LONDON BOROUGH OF ENFIELD 	RESPONDENTS
(2) 16 NAMED MEMBERS OF THE EXECUTIVE
      COMMITTEE OF EREC
(3) MS C BHATIA

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

MR JUSTICE LINDSAY (PRESIDENT):
1.	This is the third judgment which we deliver arising out of the hearing before us on the 11th July 2001.   For a fuller understanding of this appeal it will be necessary first to read our earlier long judgment of the 25th April of this year and the two earlier judgments delivered in relation to today’s hearing.   This judgment is directed to the Notice of Appeal of the 2nd November relating to the Decision sent to the parties on the 22nd September 2000 after a hearing on the 5th and 6th September 2000.    The Tribunal at Stratford, consisting of the Chairman, Ms V.K. Gay sitting with Mrs S. Elliott-Jones and Mr D.J. Horn, sent their Decision to the parties, as we mentioned, on the 22nd September 2000.   For present purposes quite the most material part of the Tribunal’s Decision was as follows:-
“(iii)   The Applicant’s Originating Application should be struck out under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 Rule 13 (2) (e) on the ground that her conduct of the proceedings has been frivolous, vexatious and scandalous.”
2.	This matter has caused us some real disquiet.   The Employment Tribunal’s Extended Reasons set out events suggesting that at the hearing at the Employment Tribunal on the 5th and 6th September 2000 Ms Sivanandan moved beyond being discourteous to being downright rude to the Tribunal and disrespectful, shouting at the Employment Tribunal, and that despite admonition from the Tribunal and brief spells, after admonition, of better behaviour, she was none the less sarcastic and repetitive and had managed to reduce to tears the Employment Tribunal’s woman clerk (outside the Courtroom).   She was, said the Tribunal, occasionally histrionic and theatrical and disruptive.   She had also, commented the Tribunal, failed to comply with earlier procedural orders to provide a witness statement, a feature which the Employment Tribunal characterised as wilful.   We have the Chairman’s detailed comments amplifying this version of events and we have observations, too, from the two Lay Members with whom the Chairman sat.   
3.	Against that we have a long affidavit from Ms Sivanandan of the 12th January 2001 as to alleged racial bias on the part of the Chairman and the Employment Tribunal and an affidavit also from Ms Sivanandan’s friend, James Gordon, who was present at the Employment Tribunal and who goes into detail as to his views of a degree of bias on the part of the Employment Tribunal which, he says, appalled him.
4.	There has also been some subsequent medical evidence (in the sense of being obtained after the 6th September albeit relating to examination before that day).   That came from a psychologist who had not seen Ms Sivanandan for over 15 months.   It is not evidence which would explain her bad behaviour (if such it was) on the 5th and 6th September 2000.   There was also laid before the Tribunal some medical indications as to stress, migraine, insomnia and the possibilities of vomiting.
5.	There is a grave danger here that Ms Sivanandan’s IT1, even if permitted to go en route to a full hearing, will become totally unjusticiable.   On the one hand, matters have developed to such a pitch that any decision against her interest is likely to be met either by a protest from her of the racial prejudice of the Employment Tribunal (the Tribunal being said, consciously or unconsciously, to be reacting against her by reason of her failing, as it is said, to fall into white people’s stereo-typical assignment to her of the rôle of a submissive Asian woman) or, alternatively, by any decision against her interests being said to cause her disabling stress or other ill-health.   
6.	On the other hand, no Employment Tribunal can reasonably be expected persistently to ignore rudeness and disrespect, especially, perhaps, were it to extend beyond the Tribunal itself to the Tribunal’s staff, nor can a case be perpetually delayed and left hanging over the parties and witnesses.   Nor can any party, by protest, determine who shall or shall not hear his case.   Yet, equally, no party can be expected to tolerate prejudice or bias in a Tribunal or Court if it truly exists, nor can truly disabling medical conditions be ignored.
7.	We are far from sure that an arguable point of law emerges in this case although it may be argued that here the “punishment” (so to speak) does not fit the “crime”;  striking out is a draconian weapon to deploy and is best deployed, if at all, when the temperature has cooled and the parties can look, if not with total objectivity, at least without passion, at their actions.   What we are quite certain of is that only by the Employment Appeal Tribunal having both sides before it can the propriety or otherwise in law of the striking out be duly ruled upon.   Accordingly we see this matter as proper to go to a full hearing.   It may behove both sides to read Facey -v- Midas Retail Security [2000] IRLR 812 especially paragraph 39 on p. 819.
8.	If either side considers a Directions Hearing to be appropriate before the Full Hearing - for example a directions hearing as to further evidence or cross-examination or other matters conveniently to be dealt with before the Full Hearing - it is in the first place to tell the other side of the relief which it requires, to see if it will be consented to.   If consent is achieved as to directions then the President is to be informed and will then consider embodying the consent in an Order.
9.	If, however, no consent is reached as to directions yet directions are sought by one or both sides, then each side is to set out his application for particular directions, or his reaction to the application made by the other side, in each case in writing, and the argument in writing can then be sent to the President.   Only if the President feels that an oral directions hearing is necessary will there then be one.
10.	Subject to directions relative to the Full Hearing being necessary in such a way, we make only the conventional directions as to the Full Hearing, namely that skeleton arguments should be exchanged between the parties and sent to the EAT not less than 14 days before the hearing, that the hearing should be listed for a full day and that unless any parties wish to procure otherwise (which could itself be the subject of directions as above) the Full Hearing will be heard before the President and the two Lay Members who heard the matter on the 11th July and who accordingly have a familiarity with the case which it would be a pity to waste.