United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR O SEGAL (Counsel) Messrs B J K Lewis Solicitors CIS Building Miller Street Manchester. M60 OAI
For the Respondent	Mr R A Warman (Representative) 34 Barn Meadow Lane Great Bookham Surrey. KT23 3HA


 


JUDGE HICKS Q.C.: The background to this appeal is that the Appellants, the Co-operative Insurance Society, who are a very substantial body and a large employer, carried out what is described in the Notice of Appeal as a major company restructure. So far as their employees were concerned - and, as we understand it, although the title used was "agent" - the relationship was one of employment calling it a "company restructure" does not disguise the fact that what the employer wanted to do was to change the Contracts of Employment and on ordinary principles that, of course, was something that required the consent of the employees, either individually or through recognised trade union representation.

There was a very lengthy process of consultation, negotiations, and so on. The end result was that out of a total number of something of the order of 6,000, 89 agents resigned or were dismissed, having rejected new contracts. Out of that, so far, have arisen some forty claims. (There may be more but it seems as we understand to be settling down in that region.) All but two of those claims were either brought before the Manchester Industrial Tribunal or have been transferred to it. One of the other two is proceeding in the Leicester Industrial Tribunal but has been stayed, pending resolution of the Manchester claims, and it is the Appellant's case that the same issues of fact and law arise in all these cases, including the remaining one which is the one before us, that of Mr Baker.

There is perhaps some dispute as to whether Mr Baker's case is on all fours with the other because Mr Warman, who appears for him, suggests that there may be some different issues which arise in his case but, as we understand it, he accepts - and indeed it seems clear from the terms of his application to the Industrial Tribunal and the employer's response - that certainly there must be a very substantial area of law and fact which will be common and will be dealt with in the Manchester proceedings, where directions are pending which are expected to result in there being a selected number of test cases, which it is hoped will dispose of the issues sufficiently to enable it to be unnecessary for the remainder to proceed to a disputed hearing.

In the present case of Mr Baker's, which is before the London (South) Industrial Tribunal hearing, there has been a history of applications. The original date, which was quite an early one, was the subject of an application on 5 August of this year for transfer to Manchester, alternatively a stay, or alternatively an adjournment of the date fixed, and further for a direction that the hearing would last three days. That was dealt with by a refusal of the transfer - and there was no appeal against that and that matter is not before us - but on that occasion an adjournment was granted. It would appear that no explicit decision was made on the application for a stay. On 21 August there was a further application for a stay. That was not at that stage explicitly ruled upon; instead the parties received a notice of 27 August fixing a two-day hearing on 26 September.

The Appellants applied with perfectly reasonable promptitude again for a stay (or renewed their application in that regard) but also for an adjournment of the 26 September date, on the further specific ground, in addition to the general grounds of the desirability of not having this matter disposed of separately and independently of the Manchester proceedings, that three key witnesses were involved in a part-heard application in the Industrial Tribunal or the Employment Appeal Tribunal (I am not sure which) in Edinburgh, also listed for continuation tomorrow. That application was made on 30 August. It was not until a document dated 17 September (they do not, I think, have any evidence of when it was posted), which was not received until 23 September, that that application was dealt with. The substantive paragraphs of the decision letter are:

"2. The Chairman who considered your application, noted that the Chairman who considered your application of 5 August 1996, was of the view that the matter should be re-listed rather than kept in abeyance and that in her opinion, two days would be sufficient with which the Chairman dealing with your current request agrees.

3. As the matter has already been postponed once and as the Applicant objects to the postponement, the Chairman now dealing with this matter has refused your application."

We take paragraph 2 as being a rejection of the application for a stay and a rejection of the application to allow three days for the hearing and paragraph 3 to be a rejection of the application for an adjournment of tomorrow's date for the hearing.

The employer appeals against all those decisions. We remind ourselves that this being an Interlocutory decision by the Industrial Tribunal on a matter lying within its discretion the appeal can succeed only if the Tribunal erred in law, either by taking into account matters which it should not have taken into account or by failing to take into account matters which it should, or thirdly, that even if no specific failure in either of those respects can be found, the decision was so irrational that no Industrial Tribunal properly directing itself on the law and taking into account proper matters, could have arrived at it.

That is a difficult test to meet, as Mr Segal for the employers accepts, but he submits and we for our part are satisfied that in this case it is met. So far as failure to take into account relevant matters are concerned, which is one of the ways that Mr Segal puts it, it is perfectly true that one does not expect from decisions on Interlocutory applications of this kind fully reasoned decisions listing all the matters which the Chairman has taken into account, but in relation to this particular application two matters were so obvious, so stark and so important on any consideration, that one would have expected that if they were to be overcome some mention would have been made of them. One is the background of what, in a different jurisdiction, are sometimes called "class actions" - certainly the consideration that where there is a very large number of cases all arising out of the same background, and involving either wholly common issues of factor and law or at least large areas of common fact and law, that is a most important consideration to take into account, in order to avoid unnecessarily wasted costs of multiple hearings and potential unfairness to individual applicants who have not the resources to engage the level of legal representation which the employer has. So that is one important consideration which it is, in our view, surprising to find passing unmentioned, even in a brief decision on an Interlocutory application where one does not expect very full reasons.

The second matter is the question of the unavailability of the employer's witnesses. It is perfectly true that unavailability of witnesses is a ground constantly advanced and that sometimes Industrial Tribunals are entitled to view it with some scepticism, but this was about as compelling a ground for unavailability as one can possibly imagine, namely another hearing in the very same jurisdiction although on a different matter already arranged. The Industrial Tribunal simply as a matter of comity with other Industrial Tribunals and the Employment Appeal Tribunal, one would have thought, would have needed to explain why it made a decision which effectively compelled the employer to be without witnesses either in one Tribunal or the other. Neither of those matters is mentioned.

We consider there is a good deal of force in Mr Segal's submission that the Industrial Tribunal Chairman who made this decision cannot have paid serious attention to those matters, because if serious attention had been paid one would have expected those apparently very forceful considerations to be mentioned and the reason for disregarding them stated. Be that as it may, whether or not there was a total failure to take account of those considerations, we believe that Mr Segal makes his case out on the alternative ground of irrationality. It is a strong matter for an Appeal Tribunal to interfere with the exercise of a discretion on that ground, but the matter of the witnesses speaks for itself and the matter of the general background of a large number of similar cases is one where appellate courts in the common law jurisdiction - and we think the same principles apply - have shown themselves willing to ensure that there is some rational case management and some general oversight to ensure that costs are not wasted and that there is no unfairness to individual participants who may not be as fully represented as is possible when matters are taken together. We are therefore satisfied that we can and should set aside the Chairman's decision.

So far as the adjournment of tomorrow's hearing is concerned it is of course inevitable that we not only set aside his decision but actually substitute our own and direct that the matter be taken out of tomorrow's list and we do that. So far as the stay is concerned there are two possibilities. One is that we should remit that for further consideration by the Industrial Tribunal, and were we to take that course we would be minded to give a very strong indication that in our view it would be desirable for that to be dealt with at an oral hearing before a full tribunal. The alternative is for us to make that decision ourselves. Mr Segal invites us to do so. Mr Warman, who appears on behalf of Mr Baker and who has represented Mr Baker's position very ably, required perfectly properly some time and explanation, because he is not himself legally qualified, to consider whether he also would suggest that we make the decision ourselves and in the end, as we understand it, is inviting us to do so. We are therefore prepared to deal with the matter in that way, and the more so because the issue of the stay is one where although we are not in a position in the time and on the evidence available to us to resolve conclusively whether there are any special circumstances of Mr Baker's case we are in a position, we believe, to conclude that if there are any his position in regard to those will not in any way be prejudiced by a stay, because whatever may or may not be decided in Manchester, and however that may or may not affect Mr Baker's separate application, what is quite certain is that it cannot possibly prejudice his position in regard to any disputed questions of fact which arise only in this case and not in any of the others. In those circumstances it seems to us that the considerations which we have already rehearsed point so strongly and conclusively in favour of a stay that that is the right order to make. That being so, the third matter of the length of hearing does not at present arise and does not need to be dealt with.

We therefore allow the appeal and set aside the decision of the Chairman and direct that the application be taken out of tomorrow's list for hearing and that the application be stayed, pending the resolution of the applications before the Manchester Tribunal, but with liberty to either party to apply to lift the stay.