United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 433_94_1205

Appeal No. EAT/433/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th May 1994

HIS HONOUR JUDGE J PEPPITT QC

MR R H PHIPPS

MR P M SMITH

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1) MR I R SARJANTSON

2) I R SARJANTSON LTD          APPELLANTS

MRS L J WRIGHT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR C JEANS

(Of Counsel)

Messrs Frank Allen Pennington

6/7 Regent Terrace

South Parade

Doncaster

DN1 2EE

For the Respondent NO APPEARANCE BY

OR ON BEHALF OF THE RESPONDENT


 


JUDGE J PEPPITT QC: This is an appeal from a decision of the Chairman of the Sheffield Industrial Tribunal made on the 6th May 1994, appointing Friday 13th May as the date for the substantive hearing of a complaint of sexual harassment. The appeal also embraces the Chairman's subsequent refusal on the 10th May to accede to the Respondent's request that that substantive hearing on the 13th May be adjourned.

The appeal arises in somewhat unusual circumstances. The case was listed for full hearing on the 13th May by an Order of the Tribunal dated 22nd February. However, on the 15th April, for reasons which for the purpose of this appeal we need not spell out, that hearing was adjourned and substituted for it was a directions hearing on the same date. The Chairman's Order dated 15th April 1994 was as follows:

"The substantive hearing is adjourned from 13 May 1994. On that date there will be a hearing for directions"

and there followed an indication of the directions which would be considered on the 13th May 1994.

On the 6th May, however, following an indication from the Applicants' representative that the matters which were to be the subject of directions had been, or would be likely to be, dealt with without the need for a hearing of the Tribunal, the Chairman effectively reinstated the 13th May as the date for the substantive hearing of the application. The relevant extract from the Chairman's letter of the 6th May, which contained that decision, reads as follows:

"the Chairman now thinks that it is reasonable to proceed and has therefore agreed to reverse the directions made in our letter of 15 April 1994."

Mr Jeans appeals against those two decisions on two grounds. First of all, he submits that the Chairman had no power under the Rules on the 6th May to appoint a substantive hearing of the matter seven days later, on the 13th May. Alternatively, he submits that if there was such a power no reasonable chairman would have exercised it in the way which this Chairman did.

For the first of his submissions Mr Jeans relies upon paragraph 5(2) of the 1st Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993:

"5(1) The President or a Regional Chairman shall fix the date, time and place of the hearing of the originating application and the Secretary of the Tribunals shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents representation by another person and the making of written representations.

(2) the Secretary shall send the notice of hearing to every party not less than 14 days before the date fixed for the hearing except -

(a) where the Secretary has agreed a shorter time with the parties; or

(b) on an application for interim relief made under Section 77 of the 1978 Act or Section 161 of the 1992 Act."

Mr Jeans submits that the notice which his clients received on Monday 9th May dated Friday 6th May 1994 was insufficient notice of a substantive hearing to take place six days later on the 16th May. He submits, in our judgment rightly, that the original notice of the 22nd February appointing the 13th May 1994 as the date for the substantive hearing was nullified when on the 15th April the Chairman adjourned the substantive hearing of the matter and designated the 13th May instead as the date for the giving of directions. It seems to us that Mr Jeans' construction of paragraph 5(2) is clearly right. He referred us by way of confirmation to paragraph 16 of the 1st Schedule which makes it plain that there is no such time requirement in the case of a directions hearing before an industrial tribunal, and he also reminds us that the Rules though conferring upon the Chairman a power to extend contain no power to abridge. He refers us particularly to paragraph 15.

It seems to us therefore that the Chairman was not entitled to appoint the 13th May as the date of the hearing and accordingly we quash his Order. We would however, in deference to the arguments advanced on behalf of the complainant, simply record that in our judgment the delay which will inevitably ensue from our decision will not in any way prejudice her because the prospect of completing the case on the 13th May, having regard to the number of witnesses each party intends to call, would be minimal. It may be, therefore, that it would be in her interest that the whole matter should be dealt with at one hearing extending over two or if necessary, three days. We would like to express our view that the case should be refixed on that basis as early as possible.