United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 311_90_1103

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BAILII case number: [1992] UKEAT 311_90_1103

Appeal No. EAT/311/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 11th March 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS M L BOYLE

MISS A P VALE

MRS M KHARS APPELLANT

HIGH TABLE LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MISS N LIEVEN

Free Representation Unit

13 Gray's Inn Square

London

WC1R 5JP

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE RESPONDENTS

MR JUSTICE WOOD (PRESIDENT): This is an Appeal from a Decision of an Industrial Tribunal sitting in London (South) which on the 20th April 1990 refused to adjourn a hearing of an application by Mrs Khars, the Applicant, against her employers High Table Limited.

The Originating Application is dated 29th November 1989 and in that application she was alleging sexual discrimination and dismissal as a result of that. The employers, by way of Answer, were suggesting that the dismissal was because of her conduct.

On the 21st March 1990 Mrs Khars received a Notice of Hearing, form IT4, which had been posted on the 15th March 1990. On the 9th February of that year she had given birth. There was an arrangement in existence whereby as a present she had been invited by a member of her family to go to Nairobi; it was a non-transferable ticket; she was due to leave on the 7th April and her return was on a date in August of 1990. Having received the Notice of Hearing (IT4) on the 21st March, she telephoned on the 22nd March seeking a postponement and explaining that she had just had a baby and would be out of the country on this trip between the dates which we have already mentioned. On the following day she wrote a letter indicating that this was her application. It was a clear, polite letter to the Tribunal and it was placed before a Chairman. We do not know the identity of the Chairman or whether the Chairman on each occasion when decisions were made in this case was the same Chairman.

By a letter of the 27th March 1990 a reply was received from an Assistant Secretary in which the following appears:

"The Chairman wishes me to remind you that the pre-hearing letter which was sent to you on the 23rd February 1990 required you to return the tear-off slip within 7 days, failing which the case would be listed for any day and emphasised that, once listed, a postponement would only be granted in exceptional circumstances. The Chairman does not consider the circumstances set out in your letter to be exceptional."

As a result of receiving that letter Mrs Khars sought advice from the Fulham Legal Advice Centre and a member of that Advice Centre telephoned to the Industrial Tribunal saying "there would probably be an application for postponement made formally". A letter was written in support of that telephone conversation of the 6th April and the letter itself is dated that same day. In the second paragraph the letter says this:

"Mrs Khars informs us that she has never received the form PL1 [that is the form notifying her of the hearing of the possible dates and asking for dates that are inconvenient] from your office, although we understand that it had been sent out. We can only assume that it has been lost in the postal system. Thus Mrs Khars has not had the opportunity to notify the Tribunal of any inconvenient dates."

Then it states that she had given birth and that her sister had paid for a return air ticket, and that she was leaving on the relevant date. Then it continues:

"On receipt of the IT4 (1988) Mrs Khars notified your offices of this intended holiday and confirmed it in writing."

They ask that the Decision should be reconsidered.

The Centre rang again on the 17th April asking whether their letter had been successful and there is a reply, in fact of the 18th April, so presumably it must have been in the post, which reads in its relevant part:

"The Chairman directs me to say that parties are to attend on 20 April when the matter can be mentioned to the Tribunal who can decide whether the postponement will be granted. If the Applicant is out of the country you should attend and in particular explain the non receipt of the pre-listing PL1 letter."

Again, we do not know if that was the same Chairman as the first letter or the Chairman who heard the application on the 20th April.

On the 20th April, Miss Crowley from the Advice Centre appeared for the Applicant and Mrs Bish, who was the Personnel Manager, appeared for Respondents, High Table Limited.

The respondent employers did not oppose the application for an adjournment and nor indeed do they oppose this Appeal today. In so doing, it seems to us, that they took a very responsible attitude and it is one for which we commend them.

The Tribunal found that the Notice of Hearing date was sent to the parties on the 15th March, that there had been the telephone call of the 22nd March requesting a postponement and then it cited the various dates to which we have already referred.

The real basis of the Decision is in paragraph 3 where the Tribunal say:

"Miss Crowley, of the Fulham Legal Advice Centre, attended the hearing on the Applicant's behalf today, whilst the Respondents were represented by Miss Bish. Miss Crowley could add nothing to what had been said in the letter of 6 April. It is clear to us that the Applicant, although she knew that the hearing of her application was to take place today, was not prepared to postpone her arrangements to take a protracted holiday in Nairobi, and re-arrange her flight dates, but preferred to go away without pursuing her complaint of sex discrimination before this tribunal."

A number of points have been raised on that paragraph. First of all, the Tribunal in its letter of 15th April had required an explanation for non-receipt of the pre-listing PL1 letter. There is no indication in the Decision that they were or were not satisfied with any explanation that had been given or whether an explanation had been required. So there is no decision on whether or not that PL1 had in fact been received. Secondly, it is quite clear from the letter of the 6th April that Mrs Khars was in a difficult financial position and that she would probably seek to be represented by a member of the Free Representation Unit, which is the charitable arrangement by which young Members of the Bar appear free on behalf of members of the public.

It is said, and it seems obvious to us from the facts of the case, that Mrs Crowley knew that this was a non-transferable ticket and it seems to us that the expression:

"was not prepared to postpone her arrangements to take a protracted holiday"

does not take account of the fact that Mrs Khars was in difficult financial straits and could not possibly have re-arranged her ticket without the funds to pay for that re-arrangement.

So the decision was that there should be no postponement, or adjournment and it follows as night follows day that that was the end of Mrs Khars case; it was dismissed.

The discretion being exercised was a very wide one but Miss Lieven who appears for the Applicant today has boldly stated that the decision was in breach of the Wednesbury Rules. She first of all submits, that the Tribunal failed to take into account, or at least, are deemed to have failed to take into account, because they were not specifically mentioned in a very short Decision, first, that there is no mention here that this application was not opposed, and that it seems to us, is a material matter especially where the original request had been made some four weeks before the date fixed for the hearing. It was not an application at the last minute. Secondly, she submits that they did not take into account that this was a non-transferable ticket; that must be so. Thirdly, there is no mention of the PL1 letter and the decision whether or not it was in fact, received; that we have already referred to and there was no resolution of that issue. They did not take into account the fact that Mrs Khars had applied immediately she received a notification of the hearing the IT4. It seems to us that those points are well taken.

Miss Lieven then takes the point that in using the expression "exceptional circumstances" in the letter which is sent out under the title of the PL1, the Tribunal is fettering its discretion and that it should approach the facts of each and every case on the circumstances that it finds to have existed. We do not find it necessary to reach a decision on that matter but at some stage it may be a point that is clearly arguable if we were looking at it in depth.

Thirdly, she relies upon the case Performance Cars v. Secretary of State for the Environment [1977] 34 P & CR 92 (Property & Compensation Reports). That was a planning inquiry case, in which the local authority had failed to produce documentations under Rule 64 of the Town and Country Planning Enquiries Procedures Rules 1974 and the inspector had refused adjournment in order to allow the party to digest the documentation. The facts are somewhat different to the present case but it was clear that the question of adjournment is a question that falls to be considered under the rules of natural justice and Lord Denning, the then Master of the Rolls, observed:

"People should not go away from any inquiry feeling: `I've not had a fair deal.'"

It is submitted that it is one which in all the circumstances Mrs Khars may well have felt, and therefore there is a breach of the rules of natural justice.

Lastly, Miss Lieven submits that to fail to adjourn the matter would be to frustrate the legislation. I am not certain that that point is a valid point but in the circumstances we do not feel the necessity to reach a decision upon it.

What then is the position today? We have an Appellant who submits that it has not yet been found against her, that she did not receive the PL1, she says she did not. There are a number of points which she submits were not considered by the Tribunal when it reached its Decision. She submits that it was a long time before the fixed date when she asked for the adjournment and that in reality there were a number of factors in her favour, which must have told in her favour, and that in the circumstances the discretion could not have been exercised correctly. Moreover, at no time has anyone opposed this application by her and therefore no one was embarrassed. She herself was the Applicant, therefore any delay reacted against her and that the sole reason for this Decision she submits, must have been the convenience of the Industrial Tribunal. It is perhaps in that connection that Miss Lieven makes a point about frustration of the legislation. However one puts it, and may we say, we are grateful to Miss Lieven for the succinct and able way in which this matter has been presented, we feel that this Appeal must be allowed and that both these parties must be allowed to have the matter heard, which is what they wish.

The Appeal is allowed, this matter is remitted to be heard by an industrial tribunal.

It seems to us that after all this time consideration could be given to expedition.