United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1204_95_1711

Appeal No. EAT/1204/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 November 1995

HIS HONOUR JUDGE P CLARK

MR T C THOMAS CBE

MR N D WILLIS

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INTERACTIVE LEISURE SERVICES LTD          APPELLANTS

MISS L INGLESON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR BRYAN COX

(of Counsel)

Mr John Thompson

Leviten Thompson & Co

Wicker Chambers

19-21 Wicker

Sheffield S3 8JQ

For the Respondent NO ATTENDANCE BY THE

RESPONDENT


 


JUDGE CLARK: By an originating application dated 3 August 1995 the Applicant, Linda Ingleson, complains of sex discrimination, in the form of sexual harassment amounting to indecent assault, and unfair constructive dismissal by her former employers, Interactive Leisure Services Ltd ("the Company"). Various detailed allegations are made by her against the Company's managing director, Mr Lee. It is unnecessary to recount them in this judgment.

By their notice of appearance the Company denies these allegations and resist the Applicant's claims.

Additionally, Mr Lee faces criminal charges arising out of the same incidents which form the basis of the claims before the Industrial Tribunal. We are told that Mr Lee has elected trial before the Crown Court and that the earliest that the trial will take place, estimated for two to three days, is February or March 1996.

The full hearing of the Industrial Tribunal complaints is due to take place on 23 November 1995 and on 13 November the Company applied to a Chairman sitting alone at the Leeds Industrial Tribunal, Mr Prophet, for an adjournment of the Industrial Tribunal proceedings pending resolution of the criminal proceedings. That application was opposed on behalf of the Applicant and the Chairman refused it for the reasons which he sets out in a letter to the parties dated 14 November.

Against that interlocutory order the Company now appeals and on its behalf Mr Cox advances two arguments. First, he says that the Chairman misdirected himself in paragraphs 1 and 2 of his reasons:

"1. The substance of the criminal charges forms part only of what the applicant asserts was a continuing state of sexual harassment.

2. The issues before the criminal court and the tribunal are different. The burden of proof is not the same. The criminal court will be concerned with ascertaining guilty intent to indecent assault on the criminal burden of proof whereas the industrial tribunal is concerned with assessing whether the respondent company is liable under civil law for sex discrimination under the Sex Discrimination Act 1975.

3. There could be prejudice for Mr Lee if the respondent requires him to give evidence at the industrial tribunal prior to the completion of the criminal proceedings, although I understand his position to be a denial of all allegations against him. Those criminal proceedings, says Mr Thompson, are particularly serious in that they might result in [Mr Lee] losing his liberty."

What Mr Cox submits is that here the factual issues in both criminal and Industrial Tribunal proceedings were the same and co-terminous. That was not the position in Bastick v James Lane [1979] ICR 778, where the Applicant was dismissed for misconduct, namely dishonesty in paying out losing bets as winning bets in the course of his employment, and was also charged under the Theft Act 1968 with a criminal offence.

We have carefully considered that submission but we are unable to accept it. Paragraphs 1 to 3 of the Chairman's reasons have to be taken together. We do not understand him to be saying that the evidential basis in both sets of proceedings is different; he notes that the burden of proof is different, and he has in mind in paragraph 3 the potential prejudicial effect on Mr Lee of a rehearsal of the evidence on both sides in the Industrial Tribunal proceedings before he stands his trial at the Crown Court.

The second basis on which the appeal is put is that of perversity. We bear in mind that our powers to interfere with interlocutory orders made by Industrial Tribunal chairmen are limited to correcting errors of law. The circumstances in which that power arises are helpfully set out by Mr Justice Arnold in the Bastick case at page 782B-C. His Lordship says there:

"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That statement of the law was expressly approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908. See per Stephenson LJ at page 918F.

Mr Cox advanced five points in support of the perversity argument and invited us to say that the requirement for an adjournment was overwhelming. First, he said that the Applicant took the point that she may be disadvantaged if the Company went out of business as a result of any possible conviction of Mr Lee and he says that there is no evidence to support that submission; that it was merely unfounded supposition. Secondly, he repeats the point that if the present Order stands and the Industrial Tribunal hearing goes ahead on 23 November that there will be a rehearsal of Mr Lee's case and that will potentially prejudice him in the criminal proceedings. Thirdly, he says that there is a risk of adverse publicity, although the Chairman, in his reasons, refers specifically to Rule 13(6) of Schedule I to the Industrial Tribunal's Constitution and Rules of Procedure Regulations 1993 to which might be added the provisions of Rule 14. The anonymity of parties to sexual discrimination cases of this sort is a fairly recent innovation and although it does not provide total anonymity it goes some way towards meeting that concern. Fourthly, he says that any delay in this case will only be some three to four months and that is not to be regarded as excessive in a case where the originating application is dated August 1995. Fifthly, he says that if the criminal proceedings take place first and Mr Lee is convicted, that would, in practical terms, resolve the Industrial Tribunal hearing because the Company's position would then be untenable.

We have considered those submissions, both individually and cumulatively, but we are unable to say that they drive us to conclude that this Chairman's conclusion was perverse, in the sense that it was an impermissible option. He had to balance the factors advanced on both sides for and against granting a postponement of the Industrial Tribunal proceedings and, in our view, either result was permissible. We refrain from ourselves falling into the error of putting ourselves in the position of the Chairman and exercising our own discretion in the absence of an identifiable error of law.

In these circumstances this appeal must be dismissed.