United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 432_95_2505

Appeal No. EAT/432/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 May 1995

HIS HONOUR JUDGE HULL QC

LORD GLADWIN OF CLEE CBE JP

MR R H PHIPPS

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THOMSON TOUR OPERATIONS LTD          APPELLANT

MRS F SMITH & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS C BOOTH QC

(of Counsel)

Messrs Mace and Jones

4 Oxford Court

Manchester M2 3WQ

For the Second Respondent (Hamilton) MS SHIRLEY WORRAL

(of Counsel)

Ms S Hughes

Commission for Racial

Equality

Alpha Tower (11th floor)

Suffolk Street

Queensway

Birmingham B1 1TT


 


JUDGE HULL QC: This is an appeal to us by employers, Thomson Tour Operations Ltd against a decision of the Industrial Tribunal sitting at Manchester (the Chairman then was Mrs Porter) on 14 February 1995.

The cases arise out of reorganization by Thomson's, the employers, in and before October 1993, which led to certain redundancies. There was one agent support manager who was to be made redundant and three supervisors and Mrs Smith, one of the complainants, was the agent support manager who was chosen for redundancy. Mrs Wood, another complainant, was an agent support supervisor. The third complainant with whom we are concerned is Mr Hamilton, who was sales supervisor.

Those three and some others were in due course made redundant in or about October 1993. So far as Mrs Smith and Mrs Wood are concerned, they were both dismissed on 29 October 1993 and they made complaints to the Industrial Tribunal which I will refer to shortly.

The first complaint to the Industrial Tribunal was one by Mr Hamilton. He is a British man of black race and he complained that he had been unfairly selected for redundancy and that that was involved with race discrimination. He claimed compensation and re-engagement. He complained of incidents going back three years, culminating in his dismissal. Those incidents, apparently, are ones in which he felt that he was not properly dealt with and that, indeed, they showed that he was being treated with discrimination on the ground of his race. That was his complaint on 3 January 1994.

Mrs Smith presented her complaint on 14 January 1994 and she complained of unfair dismissal. She claimed compensation and she said that she had also been discriminated against on the ground of her gender and that her selection for redundancy was on the ground of her pregnancy.

Finally, Mrs Wood, on 19 January 1994, presented her complaint and she complained of unfair dismissal and unfair selection for redundancy.

There were answers put in by the employers to those three complaints.

Finally, there was a second complaint by Mr Hamilton, which was dated 10 March 1994. He complained in that new complaint that he had been victimized by the employers under the Race Relations Act 1976.

The employers in each case are the same and all these complainants were fellow employees at Manchester.

The cases were at first consolidated. They were to be heard together. The concept of consolidation in the Industrial Tribunal is, perhaps, slightly different from that in other forensic proceedings but they were to be heard together. Then a question was raised whether that was the just or best way of trying them and that matter came before Mrs Porter on 14 February; and it is from her decision that this appeal is brought to us.

Mrs Porter ordered, having considered various arguments and matters which were put before her, that the cases of Mrs Smith and Mrs Wood should be tried together. Those two ladies were content that their cases should remain consolidated. Mr Hamilton was not content that his case should be tried at the same time as those of Mrs Smith and Mrs Wood and Mrs Smith and Mrs Wood most certainly were not content that their cases should be tried with Mr Hamilton's, for reasons which were laid in front of the Chairman. A most important factor is that Mrs Smith and Mrs Wood's cases are relatively short and simple on the best view of Counsel and, indeed, of Mrs Porter herself. Those ladies, having had their cases ordered to be tried separately, have obtained a date on 1 and 2 June, in other words next week, when their cases will be tried. They have employed a solicitor privately to represent them and we have two letters dealing with the matter, in which they ask us to affirm the order of the Chairman on the basis that they wish to continue next week with their cases.

In front of the Chairman Thomson's said that they wished the cases all to remain consolidated and the Chairman went into the matter. I do not propose to read all her decision. It is, if we may respectfully say so, a long and careful decision, which shows that she has heard submissions made to her in detail and has, again if we may respectfully say so, carefully considered them and given them such weight as she thinks right. Some of them she regarded as more important than others. It does appear that the most important considerations that could be laid before her not only were laid before her with the assistance of Counsel but that she duly considered them. It is not alleged that some important matter was wholly ignored by her or that she took into account some totally irrelevant or prejudicial matter which she should not have done. What is said is that, taking it as a whole and considering it, if necessary, item by item, she reached a decision which could be described as perverse. It was so obviously a wrong decision that we should interfere with the exercise of her discretion, that is what is said. There is no point, I think, in reading the whole of the decision. She correctly recorded that the redundancy was the important issue. She said that Mr Thompson, the solicitor who appeared for the employers, had said that if all four cases were consolidated it would take between four and five days to try all the cases together. She records that Mr Thompson expressed sympathy with Mrs Wood and Mrs Smith in relation to their submission that to hear all four cases together would lead to a substantial rise in the costs of legal representation. Mr Thompson submitted that the expense of legal representation was not a determining factor. If that was meant to suggest that it was irrelevant to the Chairman's consideration then we would respectfully disagree with that. It seems to us that it is material matter to be put in with all the other matters. He submitted that the Tribunal would get a clearer picture if all four cases were heard together.

Miss Worral appeared on behalf of Mr Hamilton. She said there were the three issues of unfair selection, race discrimination and, in relation to Mrs Smith, sex discrimination - and she said that it was inconceivable that Mr Hamilton's case could be completed within three days. A letter submitted by Mr Hamilton's solicitor to the Tribunal dated 1 September 1994 indicated a preliminary estimate for the hearing of between five and six days. Miss Worral submitted that none of the allegations of race discrimination had any bearing on Mrs Smith or Mrs Wood. Similarly, the allegations by Mrs Smith about sex discrimination had no effect on the race issue although, of course, there was some overlap on other issues. The Chairman went on to record the attitude of Mrs Smith and Mrs Wood and another matter, she recorded, was that Mrs Smith believed that she would be called as a witness by Mr Hamilton and this would put too much pressure on her to give evidence on his behalf whilst trying also to present her own case. In paragraph 10 of her decision, she referred to further important matters. She said:

"I accept that the evidence of Mr Hamilton and his witnesses regarding his claim for race discrimination will be lengthy and entirely separate from that of the evidence submitted in relation to the claim for unfair dismissal. I am of the opinion that there is a strong possibility of prejudice against either Mr Hamilton or Mrs Smith and Mrs Wood by hearing the three applicants cases together. It is not possible to anticipate at this stage to whom prejudice would be caused. However, where the anticipated length of hearing is some six days and it is likely that Mrs Smith and Mrs Wood would have no interest in at least four days of that hearing, there is a strong possibility that justice cannot be seen to be done in relation to each separate claim for race discrimination by Mr Hamilton and the claims for unfair dismissal and sex discrimination."

She says it is her view, that:

"the overall length of hearing is the same and ... no significant time will be saved by hearing the cases together rather than separately.

11. There is little chance of any prejudice as the cases of Mrs Wood and Mrs Smith are consolidated and considered together, Mrs Smith and Mrs Wood have no objection to that course of action"

Finally, she made the order that the cases of Mrs Smith and Mrs Wood should be tried together and Mr Hamilton's case separately.

As I have said, the employers objected to that course. Not only did the Chairman recognize this but it is perfectly obvious that there are many imponderables involved in a decision such as this. The exercise of discretion involves selecting as best one can those matters which appear to be most important out of all the imponderables and other matters which, perhaps, can be looked at more precisely and then saying where the balance of justice lies. Inevitably, it is an imprecise exercise because in the nature of things a Tribunal which has not yet heard the merits has to put many matters on one side as being, as I say, imponderable or matters which it is only possible to think about in terms of probability or even possibility.

We are particularly reluctant to interfere with any exercise of discretion by a Chairman of Tribunals. We can do so, on authority, only if some matter which is irrelevant has been taken into consideration or some matter which is relevant has been excluded and is shown to be excluded from consideration or if the decision is, as is suggested here, perverse; that is to say, a decision which no reasonable Tribunal, directing itself correctly as to the law, could properly have reached, so that somewhere, although it is not spelled out, there must indeed be an error of law, some irrationality.

That is most particularly so with interlocutory decisions, because the duty of trying this case and exercising all the discretions and powers which an Industrial Tribunal has is cast firmly upon the Industrial Tribunal. We are not the body which is going to have to try these cases in due course. That is the Tribunal's responsibility and, on the face of it, the Tribunal must be allowed to say how it is going to do its duty of acting fairly and hearing these cases. It may be very easy to criticise at a safe distance but it is the Tribunal itself which, having looked at the facts as best it can, has to say what it thinks is the most just way to order the matter and conduct the trial.

In our view, having all read this decision, indeed more than once and with the assistance of Counsel having gone through it again, it appears to us, if we may respectfully say so, to be a model decision. We cannot see any legitimate criticism of this decision. Indeed, it appears to us in certain ways that more could be said in favour of this decision than has been. It is elementary to say that justice delayed is, or is liable to be, justice denied. These two ladies, the two Applicants, are to have their case tried next week and we ask why on earth should they not have their case tried next week. The order which has been made by the Tribunal is in accordance with the wishes of all three Applicants. Why should these ladies, Mrs Smith and Mrs Wood, have to sit there while matters with which they are not concerned, matters of race discrimination against Mr Hamilton, are canvassed? One knows how long those enquiries can be. The estimate is of the order of five days. One knows only too well that estimates of that order, in a case of racial discrimination, may prove to be perhaps only half the true figure. Those mattes may or may not have been in the mind of the learned Chairman. However those matters may be, we cannot find any ground whatever for criticising this decision and most certainly no ground for interfering with the discretion exercised by the Chairman which, as we say, is her discretion and not our discretion. In those

circumstances, in spite of the very cogent submissions made by Ms Booth, we have to say that this appeal must fail.