Neckles v Yorkshire Rider Ltd (t/a First Huddersfield)

An Employment Tribunal may strike out an originating application under rule 15(2)(d) where the proceedings have been conducted in a scandalous, unreasonable or vexatious manner. On an application for permission to appeal, the Court of Appeal does not retry factual issues or substitute its view for the tribunal’s discretionary judgment. Findings based on evidence, including an apparently unauthorised transcript and the absence of an explanation, will not be disturbed absent an arguable error of law, perversity, lack of evidence or improper exercise of discretion. The tribunal may have regard to section 9 of the Contempt of Court Act 1981. An alternative jurisdiction issue need not be decided where the strike-out decision stands.

Mr Francis R Neckles brought several proceedings before the Employment Tribunal. In case 1806977/99, following a hearing on 21 August 2001, the Tribunal struck out his complaint on the ground that the proceedings had been conducted scandalously, alternatively because it lacked jurisdiction.

The Employment Appeal Tribunal considered the scandalous-conduct ground, dismissed the appeal on 18 January 2002, and stated that the jurisdiction issue did not arise unless the strike-out decision was reversed. The applicant sought permission to appeal, challenging the Tribunal’s factual findings, its reliance on section 9 of the Contempt of Court Act 1981, and its exercise of the strike-out discretion. The central issue was whether there was an arguable error of law warranting appellate intervention.

Permission to appeal was refused.

1. Lord Justice Pill held that the only issue properly before the Court was the strike-out decision. The Employment Appeal Tribunal was entitled to leave the alternative jurisdiction issue undecided because that issue would arise only if the strike-out decision were quashed.
2. Rule 15(2)(d) of the Employment Tribunal Rules of Procedure 2001 gave the Employment Tribunal a discretion to strike out an originating application at any stage where the manner in which the proceedings had been conducted was scandalous, unreasonable or vexatious.
3. The Employment Tribunal was the fact-finding tribunal. The Court of Appeal would not retry factual issues which the claimant and his representative had had the opportunity to raise below. There was no arguable basis for saying that the Tribunal’s findings were perverse, unsupported by evidence, or legally erroneous.
4. The Tribunal had before it what appeared to be a transcript of earlier Employment Tribunal proceedings. It concluded that the transcript had been made from an unauthorised tape recording, noted the claimant’s failure to provide an explanation and his unwillingness to give evidence, and treated the conduct as relevant to its discretion. It was entitled to have regard to section 9 of the Contempt of Court Act 1981 when deciding whether to strike out the claim.
5. Lord Justice Pill respectfully agreed with the Employment Appeal Tribunal’s reasoning. Neither appellate tribunal had identified an improper use of discretion or an arguable error of law. There was no realistic prospect that a substantive appeal would succeed. The formal order was: application refused.

1. Court of Appeal (Civil Division) — On 10 April 2002, permission to appeal from the Employment Appeal Tribunal was refused: [2002] EWCA Civ 517.
2. Employment Appeal Tribunal — On 18 January 2002, the appeal from the Employment Tribunal was dismissed on the strike-out issue. The alternative jurisdiction issue was not determined.
3. Employment Tribunal — Following the hearing on 21 August 2001, complaint 1806977/99 was struck out as scandalous, alternatively for lack of jurisdiction.