At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MS S CORBY
MISS A P VALE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants Mr M D Ross
(Solicitor)
Messrs Paris Smith
& Randall
Solicitors
9 College Place
Southampton
S01 2ZD
For the Respondent No appearance by
or representation on
behalf of the Respondent
MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal by York Technology Ltd from a Decision made without reasons by an Industrial Tribunal sitting in Southampton on 25 October this year. It made the following Order:
"The hearing is adjourned for one month and if within that time the applicant does not:
(a)make an application for her case to be reinstated for hearing and
(b)give an undertaking to the Tribunal in writing that she will attend such hearing
her claim will be dismissed."
The Originating Application was dated 17 June 1991. It claimed unfair dismissal for redundancy but the Learned Chairman who handled the case clearly felt that it included allegations of sexual discrimination both in the dismissal and on the grounds of harassment and so all those matters were due to be heard.
There had in fact been a pre-hearing assessment but the date for the anticipated final hearing was fixed and presumably agreed as 25 October 1991. One day was allowed. Two of the employees of the Respondent Company were to be called by the applicant, Ms Taylor, who had obtained witness summonses and we understand that there were some four other witnesses from the Respondent who were there in attendance and ready. On the day before the hearing a letter was received by the Regional Office of the Industrial Tribunals from the applicant. A copy of it was shown to Mr Ross the solicitor acting for the employers on the day of the hearing and this was considered by the Tribunal.
In that letter, which is a letter of some two pages, the applicant Ms Taylor first of all said this in the second paragraph:
"I hereby inform you that I do not propose to appear in person at the hearing but would strongly wish the case to proceed in my absence".
Then lower down that page she refers to the pre-hearing assessment. It is quite clear that she is in a state of agitation, that she has had advice from a solicitor under the Legal Aid green form in the past, that this was no longer available to her and she was clearly wound-up
about the thought of appearing before the Industrial Tribunal and she said on page 2 that the emotional stress that she has suffered since bringing this case has been enormous.
Now the reason, or part of the reason for the stress that is building up in this applicant, is perhaps explained in paragraph 4 of that letter from her. She said she is now in the 29th week of pregnancy and had already suffered a miscarriage in the February of this year. She does not wish to put herself in any more situations that are likely to have an adverse effect on the child she is carrying. Not only had she suffered degradation and humiliation of sexual harassment over a two and a half year period, but she was suffering from sleepless nights and stress. She asked the Tribunal to continue the hearing in her absence but to cross-examine certain witnesses on her behalf.
As Mr Ross has pointed out, there is no application from her for an adjournment. The dismissal was conceded and therefore it was for him to open the case on behalf of his clients.
First of all there was a round table conference as he informed us and the Tribunal indicated that they had a feeling that the matter should be adjourned. He argued, no doubt strenuously and perfectly properly against that course. He asked them to dismiss it or to hear the evidence from the employers' witnesses. There was a second round table conference, an adjournment and then the suggestion was that there should be a date fixed or a date to be agreed. However, the Tribunal ultimately retired, came back and made the Order which it did.
We have no reasons in writing for the making of the Order but it seems to us really quite clear what the Tribunal had in mind. Here was a case where on the face of the letter, the more one reads it the clearer it becomes, there is a woman who is pregnant, in her 29th week with therefore some 11 weeks to go, who had had a previous miscarriage and who was suffering undoubted emotional stress. The Tribunal felt that it was not the right moment to deal with the matter without her present, and indeed she would not be in a fit state probably to attend for some time.
That is an understandable reaction and a perfectly reasonable one in the circumstances although others might have taken a different view. In our judgment that was a perfectly proper view for the Tribunal to take.
If that was their view then let us look at the Order. The Order puts a stipulation as we have already indicated of 1 month for certain things to happen. Of course 1 month from 25 October would mean that the applicant was coming near the end of her pregnancy and it would be, as we see it, the most unsuitable moment at which to hear the proceedings. We can only think that the 1 month stipulation for the application to reinstate was fixed because of the listing in the region and it is likely that the case would have to be listed some 3 or 4 months ahead which would be after the birth of the child and after the applicant had had sufficient and reasonable time to recover from the exigencies of giving birth. So that that is probably what was in the mind of the Tribunal and in that way it seems to us that they could have achieved what they clearly had in mind.
However, Mr Ross makes a second point which seems to us to be a valid one. He submits that to require an applicant to give the undertaking in writing that she will attend is really an empty piece of writing on paper in this sense, that even if the applicant does not give that undertaking, she has not promised to give the undertaking and that the absence of the undertaking would not be a basis upon which a ground for striking out could be based.
It is a difficult point and one can see arguments either way, but it does seem to us that that is not really a very satisfactory way of approaching this problem. It is also followed by the words that "her claim will be dismissed" and therefore the Court is ordering someone to give a promise. That is a most unusual Order and one which I confess is the first time I have seen it in that form.
We therefore accept Mr Ross' criticism that that second part of the Order was, if you like, invalid, ultra vires. We can understand what was intended but it does not seem to us to achieve it. It follows therefore that this Appeal must be allowed.
What then is the sensible course to take bearing in mind as we do and accept the view that was being taken by the Industrial Tribunal? Clearly the case must be fixed for hearing. It seems to us that to require the case to be refixed within a month of 25 October was also perfectly understandable and reasonable. It was also understandable and reasonable that the applicant should be warned that if she does not attend and continue with her case on that day then it is likely to be dismissed.
Therefore we hope we have given effect to the views of the Industrial Tribunal if we alter the form of the Order slightly and word it in this way:
"The Tribunal orders that the appeal be allowed and that the Order of the Industrial Tribunal be set aside and substituted by an Order that
(a)the hearing be adjourned to a date to be fixed
(b)the applicant do make application by noon on the 4th day of December 1991 for her case to be re-instated and in default of such application her claim to be dismissed
(c)in the event that application be made within the afore-mentioned time the matter to be restored for full hearing
(d)the Industrial Tribunal do warn the applicant that in her absence from the final hearing consideration will be given to dismissing her application at that time".