United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 71_95_3101

Appeal No. EAT/71/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 January 1995

THE HONOURABLE MRS JUSTICE SMITH

MR D G DAVIES

MISS A MACKIE OBE

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MR M SIMPSON          APPELLANT

THE GOVERNORS OF GORDONS SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NATASHA JOFFE

(Of Counsel)

Robin Thompson & Partners

Wentworth House

Eastern Avenue

Gants Hill

Ilford

Essex

IG2 6NH

For the Respondents NO APPEARANCE BY OR

ON BEHALF OF THE RESPONDENTS


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal Chairman at London South, whereby he refused to adjourn the hearing of the Appellant's claim for unfair dismissal. The hearing was due to take place on 2 February 1995. This appeal is supported by both parties to the claim.

Mr Simpson, the Applicant in the Industrial Tribunal and the Appellant in this Appeal Tribunal, was dismissed by the Respondent's Governors for misconduct with pupils involving indecency. That dismissal took place in September 1994. The police became involved and a prosecution has followed.

The Appellant is due to face his criminal trial on 27 February 1995. It is estimated that the trial will last some six days. He wishes his Industrial Tribunal hearing to be postponed until after the trial. First, because he considers that his position may be prejudiced if he gives evidence at the Industrial Tribunal before giving evidence at the criminal trial. Second, he has suggested that if he is convicted at the criminal trial, he will abandon his industrial tribunal claim.

Through his solicitors he applied to the Industrial Tribunal for an adjournment on 11 January 1995. The Chairman refused the application expressing the opinion that, as the issues to be heard at the Industrial Tribunal were limited to alleged procedural failures by the Respondents, the giving of evidence by the Appellant at the Industrial Tribunal hearing regarding those procedural failures, would not prejudice his trial at the Crown Court.

On receipt of that rejection the Appellant renewed his application. That application came before another Chairman and was refused on 20 January. The letter of refusal adopts the reasons given by the first Chairman on 11 January. There has followed this appeal.

It is right to say that the Respondents, the Governors of the school concerned, have throughout supported the Appellant's application for adjournment of his hearing. They, as we have indicated, also support this appeal. Their reasons should briefly be mentioned. They consider that they may be spared the expense of a hearing if the Appellant is convicted at the criminal trial. Also, they have witness difficulties and their advocate is unable to attend on 2 February. It appears to us that those reasons are not of any great significance.

The power of an Industrial Tribunal Chairman to regulate the conduct of the Tribunal is a discretionary power, and the only basis on which this Appeal Tribunal will interfere with the exercise of that discretion is that it is satisfied that the decision was perverse.

In the somewhat unusual circumstances of this case, we have come to the conclusion that we ought to interfere with the discretion of the Industrial Tribunal Chairman, but we wish to stress that this is a most unusual case and we decide it entirely upon its own facts. We recognise the difficulties which Industrial Tribunal Chairmen face in listing cases and in dealing with the many applications which they must receive for postponements, based as they usually are, on matters of convenience.

This case we consider falls into a different category. We consider that this case gives rise to a real danger of injustice. The Chairman has expressed the view that the Appellant will only be required to give evidence at the Industrial Tribunal hearing on procedural issues. We consider that that is unrealistic and would not be the case. We consider that if this matter were to go for hearing on 2 February, before the criminal trial, the Appellant would have to make the very difficult decision as to whether to give evidence or not. If he decided to do so, he would be put in the position of having to admit or deny the allegations made against him and we do not think that it would be feasible for his evidence to be limited to procedural matters alone. Once he was required to stray into matters relating to the allegations of misconduct against him, he would be in grave danger of prejudicing his position at the criminal trial.

For that reason therefore, we have come to the conclusion that we ought to interfere with the decision of the Industrial Tribunal and to allow this appeal. Accordingly, the appeal is allowed and the hearing on 2 February will be vacated to be re-listed after the conclusion of the criminal trial.