United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 973_93_1304

Appeal No. EAT/973/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th April 1994

Before

THE HONOURABLE MR JUSTICE MORISON

MR A F BLACKLAWS OBE

MR D O GLADWIN CBE JP

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CASSON BECKMAN          APPELLANT

(1) KATHLEEN BRADY

(2) IAN FREWER          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D LOCHRANE

(Of Counsel)

Barnett Alexander Chart

34-35 Dean Street

LONDON

W1V 5AP

For the 1st Respondent MR D ORR

(Representative)

For the 2nd Respondent MR I FREWER

(In Person)


 


MR JUSTICE MORISON: These are two interlocutory appeals brought by the respondent employers Messrs Casson Beckman, who are a firm of accountants, against the refusal of the Chairman of an Industrial Tribunal to order consolidation of claims brought against them by Ms Brady, their former Director of Personnel and Mr Frewer, their former Director of Administration.

The brief facts relating to this matter are as follows:

Ms Brady was employed by the Respondent/appellants from February 6 1979 to 8 January 1993 when she was dismissed from her employment. By an IT1 dated February 5 1993 she complained to an Industrial Tribunal about her dismissal. She says that she was purportedly dismissed for redundancy but in fact was selected for dismissal because she had assisted a fellow employee who had complained of sexual harassment against the company. Accordingly she complains both of unfair dismissal and of unlawful sexual discrimination.

Mr Frewer was employed from February 2 1987 to December 31 1992 when he was dismissed, allegedly by reason of redundancy. He complains solely of unfair dismissal and alleges, amongst other matters, that his position was not redundant, that the criteria for selection were never made known and that the decision was motivated by the personal malice of the Chairman of the Management Committee. Apparently he will allege he was selected for `redundancy' by reason of his part in revealing an affair between an employee and a partner of the respondent firm. His IT1 was dated March 14 1993.

The employers say that there was a genuine redundancy situation, that there was a fair procedure with fair criteria and the dismissals were solely for redundancy and not for reasons relating to the activities of either employee.

The Industrial tribunal has a wide discretion under the Tribunal Rules of Procedure to order that two or more applications presented to it should be consolidated if it appears to it that:

"15.(a) some common question of law or fact arises in both or all the originating applications, or

(b) the relief claimed therein is in respect of or arises out of the same set of facts, or

(c) for some other reason it is desirable to make an order under this Rule.

The Respondents say that they are common questions of fact to be decided namely:was there a redundancy situation;

what were the selection procedure and criteria for deciding who should be dismissed by reason of redundancy;

what was the true reason for the dismissal of each of the applicants - in other words was the chairman of the selection committee motivated by bias, in the case of Mr Frewer or unlawful sexual discrimination in the case of Ms Brady.

The applicants wish to have their cases heard separately. In particular Ms Brady points out that her case is not just of unfair dismissal but also of sex discrimination. She is concerned that if the two cases are lumped together than her case under the 1975 Act would be swamped by considerations relating to redundancy, the only ground of the application of Mr Frewer. She says that the discovery in her case will be different from that in the case of Mr Frewer.

The matter was debated before the learned Industrial Tribunal Chairman who had to exercise her discretion. It will be appreciated that there were arguments on both sides either of which might have prevailed. Her decision was as follows. I now cite paragraphs 2 and 3 of the decision:-

"2. The Chairman heard arguments in favour of consolidation and considered the representations made on behalf of the Applicants. It was the Chairman's view that, although Mr Frewer's case might not be prejudiced if the two cases were consolidated, Ms Brady's case might well be prejudiced if such a course was taken. In view of the allegations of sex discrimination in that she alleged that she had been dismissed by reason of redundancy because of her efforts on behalf of a fellow employee in pursuing an allegation of sexual harassment, it was the Chairman's opinion that Ms Brady's case could be materially different from that of Mr Frewer's. In the circumstances the Chairman refused to order that the two cases should be consolidated.

3. However, the Chairman directed that time could be saved if the two cases were to be heard consecutively before the same Tribunal. The Tribunal hearing the cases will decide the most expeditious way in which the hearing should be conducted. The Chairman did not wish to tie the hands of the Tribunal hearing the cases."

and having given those reasons she then made certain consequential directions.

The effect of her decision was to ensure that the same Tribunal heard both cases to obviate the need for unnecessary duplication of evidence. Once the case had been prepared for trial it would become much clearer how best the evidence could be handled and the matter was left at large for the particular Tribunal to decide how best to proceed.

The appellants seek to argue that the Chairman exercised her discretion in a way with which this Court can interfere. We disagree. This was the exercise of a discretion with which we will only interfere if it was plainly wrong in principle or perverse. We are quite satisfied that the appellants have not discharged this burden. We cannot say how we ourselves would have exercised our discretion, because that is not a relevant consideration. This appeal has no merit. The decision of the learned Chairman appears to us to have been entirely sensible and leaves the final decision as to how the cases should be heard to the Tribunal which will be best suited to take the decision at the most appropriate time.

Accordingly we dismiss this appeal.

We do think that this is a case where, for the reasons we have given, this appeal was an unnecessary step in the proceedings and has had the effect, we have no doubt, of delaying the ultimate hearing of these applications and, accordingly, in relation to Mr Frewer, we direct that the whole of his costs should be paid by the Appellants those costs to be assessed by the Taxing Officer, if not agreed.