United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 189_94_1003

Appeal No. EAT/189/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 March 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A D SCOTT

MR G H WRIGHT MBE

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MRS K DONNITHORNE          APPELLANT

(1) PREMIER ADMINISTRATION LTD (2) MR R STAG          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS M L GLADWIN

(REPRESENTATIVE)

City Centre

32-35 Featherstone Street

London EC1Y 8QK

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE

1ST OR 2ND

RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mrs Donnithorne against the decision of the Chairman of the Industrial Tribunal refusing an application for an adjournment of the hearing of a complaint of sex discrimination, sex harassment and victimisation due to take place before the Industrial Tribunal at Bury St Edmunds, tomorrow, Friday 11 March. The appeal has been presented on behalf of Mrs Donnithorne by Mrs Gladwin, who has been advising her since last October about her complaint. The Respondents, Premier Administration Ltd and Mr Stag, have not been represented on the appeal, but their representative, Cygnet Industrial Relations Consultants, sent a letter to the Tribunal yesterday stating that they would not be attending due to a previous appointment. They asked for certain observations to be taken into account on the hearing of the appeal.

The background to the proceedings is that Mrs Donnithorne was a computer operator employed by Premier Administration Ltd from 9 November 1991 to 5 August 1993. In her complaint presented to the Tribunal in October 1993 she set out details of alleged verbal abuse of the sexual nature from a colleague, Mr Stag, the 2nd Respondent, between February 1992 and August 1993. The Respondents deny the allegations.

After the Notice of Appearance was lodged by the Respondents on 15 December 1993, arrangements were made for the hearing of the complaint. On 1 February 1994 a letter was sent to Mrs Gladwin, who was named on the IT1 as Mrs Donnithorne's representative, stating that the Industrial Tribunal proposed to list the case for hearing in the period 28 February to 28 March 1994. The letter stated:

"If we do not hear by 15 February 1994, we will assume that any date in the period is suitable and list accordingly."

On 2 February Mrs Gladwin wrote to the Regional Secretary of the Industrial Tribunals at Bury St Edmunds acknowledging the letter and asking for an alternative date for the hearing. It was stated in the letter that Mrs Donnithorne was unemployed. She had recently moved into alternative accommodation and was arranging for a legal representative to present her case. Mrs Gladwin explained to us that, although she and the organisation she is a member of, provide legal advice on employment problems they do not actually represent people at hearings before the Industrial Tribunal. Mrs Gladwin therefore asked for additional time for the hearing to take place. She requested a postponement until May.

The Respondents offered dates in March convenient to them. The Regional Office replied to Mrs Gladwin on 17 February saying that the matter had been referred to the Chairman of Industrial Tribunals. He decided that there was no reason for deferring the listing until May. In his view the case caused anxiety to the Respondents and the interests of justice required a speedy disposal of a case of this kind. It was stated that the hearing would therefore be in the period suggested in the letter of 1 February.

On 23 February Mrs Gladwin wrote again to the Bury St Edmunds office in reply to the letter of 17 February, repeating a request on behalf of Mrs Donnithorne for postponement. She referred in the letter to Mrs Donnithorne's personal difficulties, to her ill-health, to the fact that she was arranging for a representative to present her case but the representative would not be available until after April. She submitted that a further 2 months delay would be unlikely to inconvenience the Respondents. She repeated the request for a hearing in May. She added an important further matter, that is, that the adjournment was requested on the ground also that both parties were currently entering into negotiations through ACAS to seek a settlement of the case. At the date of writing the letter the negotiations seemed promising. Delay in the hearing date would allow time to explore an out of Court arrangement for the benefit of both parties. We have been informed by Mrs Gladwin that there has been one unsuccessful attempt to achieve a settlement, but ACAS is still involved in trying to achieve a settlement. It may be possible for one to be achieved beneficial to everybody.

Meantime a letter was sent on 21 February giving notice that the hearing would take place on 11 March, tomorrow. In reply to Mrs Gladwin's letter of 23 February the Bury St Edmunds office wrote to Mrs Gladwin saying that her letter had been referred to the Regional Chairman. He had discussed the matter with the Chairman who made the original decision. His decision was to stand. It was stated that, if Mrs Donnithorne could provide a medical certificate requesting postponement to May, then the application should be renewed. The letter re-emphasised the importance of a speedy hearing of the case, unless there was a good reason for postponing it. The hearing arranged for 11 March would remain.

It is against that decision that this appeal has been brought urgently to the Appeal Tribunal. The Notice of Appeal states, as the Grounds of Appeal, that Mrs Donnithorne is unable to attend the hearing at short notice. She has now got a job. She is concerned that taking a day off may jeopardise her job. The legal representative has only been recently appointed and needs further time to see the documents and, due to the short notice of the hearing, is unable to attend on 11 March.

We have considered all the circumstances and Mrs Gladwin's submissions. We have reached the conclusion that this appeal should be allowed. The hearing fixed for tomorrow should be vacated for a minimum of a month and should be refixed for a date which is convenient both to Mrs Donnithorne, to the Respondents, to the Citizens Advice Bureau representative, Mr George, who is going to represent Mrs Donnithorne, and to the representatives of the Respondents. The reason we allow the appeal is that it was an error of law on the part of the Chairman of the Industrial Tribunal to refuse the adjournment. The Chairman had a discretion. This Tribunal will only interfere with the exercise of a discretion, if it is satisfied that there was some error of principle in the way the discretion was exercised, such as leaving out of account relevant considerations or taking into account irrelevant considerations, or if the Chairman has reached a decision which, on the material before him, no reasonable Chairman would have reached.

In our view, no reasonable Chairman would have reached a view that this case must go on tomorrow, having regard to three matters and their cumulative affect. We are particularly impressed by the possibility that, through the good services of ACAS, it may still be possible to achieve a settlement in this case; a settlement is always a preferable way of solving a dispute to a contested hearing. As long as that possibility remains open it would benefit both parties, rather than prejudice the Respondents, to have further time to explore that area. Secondly, it is a matter of importance that the representative selected by Mrs Donnithorne cannot be available tomorrow and has only had short notice of the hearing. It is important that, if people wished to be represented, they have the benefit of representation. It is important that the representative has sufficient time to prepare the case. Thirdly, we appreciate that, if Mrs Donnithorne has just started a new job, it may not be desirable for a new employer to be faced with a request that she takes a day off for the purposes of attending this hearing. That, in our view, is not most important of the factors, but it is a relevant factor.

Our decision is that a reasonable Chairman would have weighed those three factors in favour of an adjournment. We have taken into account the point made by the Chairman that it is in the interests of parties to have a speedy resolution of disputes. That is obviously a relevant factor. We have also taken into account the points made in the letter of 9 March by the Respondents' representatives. They submit that the employment of Mrs Donnithorne ended on 5 August, but she did not present her application until the autumn. They say 2 November. It was in fact presented in October. She has been represented since then, but Mrs Gladwin's representation is advisory only and does not extend to representation at the hearing of the complaint. They make a point about the absence of medical certificates in relation to a claim of ill-health. The claim of ill-health has not been relied on recently or at this hearing as a ground for seeking an adjournment.

We have taken these matters into account and also the wish of the Respondents to have an early hearing. But in view of the three points which favour an adjournment, we are satisfied that an adjournment from tomorrow will not prejudice the Respondents. In fact it may produce benefit for them if the intervention of ACAS is able to achieve a compromise of the dispute.

For those reasons the appeal is allowed. An Order will be made vacating the list for tomorrow. The matter is to be refixed for hearing by the Industrial Tribunal not before one month from tomorrow.