United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS D ANNETTS (Solicitor) Messrs Stephens Innocent (Solicitors) 21 New Fetter Lane London EC4A 1AP
For the Respondents	MR C JOHNSTON (of Counsel) Messrs Le Brasseur J Tickle (Solicitors) Drury House 34-43 Russell Street London WC2B 5HA


 


MR JUSTICE LINDSAY: We have before us an appeal by Mrs C von Eisenhart-Goodwin against a decision that went against her in the Industrial Tribunal under the chairmanship of Mr G H K Meeran on 14 August 1996. The extended reasons were given on 29 August 1996. Mrs Goodwin had been Applicant below and the Respondent below and, of course, Respondent before us, is the West Lambeth Community Care (NHS) Trust.

What was in issue on 14 August was chiefly whether or not there should be an adjournment of the case and it is that aspect that has been developed before us by Ms Annetts for Mrs Goodwin.

The case had begun with an IT1 on 16 May 1996, so that by 16 May Mrs Goodwin had chosen to take proceedings and would know thereafter that proceedings had to be prepared for, at all events unless the Respondent surrendered. On 28 June the Respondent put in an IT3 contesting Mrs Goodwin's application. It bears that date; it was out of time but on 9 July it seems retrospective leave was given for that IT3 response. So, at all events, from 9 July Mrs Goodwin would know that she had a case on her hands, a case in which, of course, evidence would need to be prepared on her behalf.

On 18 July notice of hearing was sent out by the Industrial Tribunal indicating that the hearing would be on 14 August for two days at Croydon. It is a standard form notice of hearing and the second paragraph of it reads as follows:

"UNLESS THERE ARE WHOLLY EXCEPTIONAL CIRCUMSTANCES, NO APPLICATION FOR POSTPONEMENT DUE TO NON-AVAILABILITY OF WITNESSES OR FOR OTHER REASONS, WILL BE ENTERTAINED IF IT IS RECEIVED MORE THAN 14 DAYS AFTER THE DATE OF THIS NOTICE. ANY SUCH APPLICATION MUST BE IN WRITING AND STATE THE FULL GROUNDS."

It does not say that an application will not succeed or necessarily fail but that it will not even be entertained. Whether that formula is a proper one is not immediately for us to consider. There is no indication in the particular case before us that that formula came to the mind of those who declined adjournments. There is no mention of that formula in the case from beginning to end, save in the notice of hearing. That was 18 July; notice of hearing was fixed for 14 August.

Although that would seem to have been posted, presumably on 18 July, it was not received by the Applicant's solicitors, Messrs Stephens Innocent, until 24 July and on 26 July they made application to the Industrial Tribunal by letter. That letter said that:

"Unfortunately, the solicitor who has had the conduct of this case and who would be representing her client at the hearing will be away from the office on her annual vacation."

It is to be noted at that stage that there is no indication of the absence of a solicitor who has the conduct of the case being anything more than that. There is no suggestion that the absence of that particular solicitor will be more than the usual inconvenient consequences of a chosen advocate being unavailable. The letter went on:

"Further, our client's husband who is a key witness in this case is likely to be away on business. We therefore request an adjournment ..."

It was not explained at that point why the husband was a key witness or what it was that he could say and it was only that he was "likely" to be away on business. The letter went on to say that the Respondent was also in trouble with one of their main witnesses and, accordingly, there was a request for an adjournment of the case, for it to be relisted on two days convenient to both parties.

On 2 August the Respondent's solicitors also wrote to the Industrial Tribunal and they indicated that their principal witness, Louise Parker, would not be able to attend on 14 or 15 August because she had chicken pox and they were expecting to be able to provide a medical certificate in support. They, too, then asked that the hearing should be postponed. However, the matter came to the attention of the Chairman of the Tribunal and on 7 August a letter went out to the Applicant's solicitors, Stephens Innocent, with a copy to the Respondent's solicitors and also a copy to ACAS, saying that:

"The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay."

The letter indicated that the postponement was refused and particular reasons were given for the refusal. It was said that there had been no explanation of what evidence the proposed witness was able to give nor why it was important; it was said that inconvenience to witnesses was an insufficient ground; it was said that it is not normally the practice in these Tribunals to postpone hearings because a particular representative is unable to attend. The Chairman expects, it said, that alternative representation should be arranged and the point was taken that by 14 or 15 August, so far as concerns the Respondent's application, that the witness would have got over chicken pox and would be able to give her evidence and then leave. The Chairman also caused the parties to be reminded that witness statements could be used. On that basis, there was therefore a refusal of the request for an adjournment at that stage.

The Applicant's solicitors returned to the matter with a letter of 12 August. They noted the Chairman's reasons for refusing the postponement to which I have just referred. They said that:

"We have been unable to contact our client since receipt of your letter on 8 August. It may be that our client is currently on holiday."

It is hard to make much of the fact that the solicitors had lost contact with their own client because, plainly, it is the responsibility of parties, when a hearing looms as it was about to do, to be sure that good communications remain possible even if either is away from his or her usual place. The letter went on that:

"As we have already told you, our client's husband is going to be out of the country on business for 14 and 15 August. His evidence is very important to our client's case since it shows how the Respondent's actions undermined our client and eventually resulted in a breakdown of the trust and confidence which it owed our client as an employee. Our client's husband was, of course, the person who chiefly witnessed the effect that the Respondent's actions had on our client. Moreover, he will be able to corroborate particular events which occurred."

That was the position and the request for an adjournment was renewed. There is no indication there that so great was some special bond between advocate and client that the absence of the chosen advocate had unusually disadvantageous consequences. That was not mentioned at that time.

The Applicant's solicitors were not alone, even at this stage, in relation to a request for an adjournment because they had understood that the Respondent's solicitors consented also to an adjournment and on 13 August Messrs Stephens Innocent once again made the point that the husband of the Applicant would not be able to attend. They said:

"Our own request for an adjournment is based on the fact that our client's chief witness, her husband, will be in Scotland on business for the two days of the hearing. For the reasons set out in our fax of yesterday, Mr Goodwin's evidence is of vital importance to our client's case."

Again, at this stage, there is no mention, so far as concerns representation, of any particular disadvantage beyond the ordinary consequences of a chosen advocate not being able to attend.

On 13 August there was a telephone call to the Applicant's solicitors indicating that the postponement was refused. There is some doubt as to whether the telephone call went beyond that and indicated matters beyond that but for immediate purposes we will just limit ourselves to indicating that the postponement was by telephone refused and, accordingly, the case came on for hearing on 14 August. The extended reasons of the Industrial Tribunal set out the history of the matter and in relation to that information of 13 August they say that:

"4. ... the parties were informed that the Tribunal would be prepared to consider adjourning the proceedings part heard if necessary in order to call the Applicant's husband or for that matter any other relevant witness."

At the hearing on 14 August, the Applicant was represented by Ms J Brown, a solicitor from Stephens Innocent. It was not Ms Brown who had had the long conduct of the case, that was Ms Annetts who, as I have indicated, was also appearing before us for the Applicant.

The Applicant herself did not attend the hearing nor did her husband. The Respondents had turned up by Counsel, Mr Johnston, who has also appeared for the Respondents today. Ms Brown renewed her application to postpone on the grounds, first of all, that the Applicant's husband was a vital witness and, secondly, that the Applicant did not feel able to attend without her husband. That second ground, as it seems, was appearing for the first time. It was said that the Applicant needed his support and was distressed. Again, the likelihood of distress in the absence of the husband was not a factor that had been raised before, nor was the factor raised that the absence of Ms Annetts put the Applicant in a more than usually disadvantageous position because of some particular bonding or extra support that Ms Annetts would have been able to offer that Ms Brown could not. Ms Brown had to concede that there was no medical evidence to support this new ground that she was relying on as to distress and Mr Johnston opposed the application before the Industrial Tribunal. He made the point that the Applicant's husband was not considered by the Respondents to be crucial.

The Tribunal indicated as a preliminary matter that they did not feel inclined to grant a postponement on the grounds that had been advanced before them and they suggested that Ms Brown should telephone the Applicant, who lived in Clapham, and should ask her to attend the hearing against the warning that if she did not the Tribunal might refuse the application and it would then be open to the Tribunal under the Rules to dispose of the application in her absence, including even a warning that they might dismiss the application. Accordingly, Ms Brown was given time to make the necessary telephone calls. She came back to the Tribunal and indicated that she had spoken to the Applicant, who had decided not to attend.

The Industrial Tribunal took the view that the Applicant had taken a deliberate decision not to attend and that there were insufficient grounds either to prove that the husband's evidence was crucial or, alternatively, that the Applicant was in so distressed a state that she would not be able to attend without her husband.

The dispute as to whether, in the telephone message of the night before, the Tribunal had indicated that it might be prepared to allow the matter to go part-heard in order to consider the Applicant's husband as a necessary witness, should that stage be arrived at, was again dealt with but this time there is no doubt about it and the extended reasons of the Industrial Tribunal say:

"Moreover she was given the opportunity of attending, to give evidence herself and to hear the Respondent's case. If it became necessary to adjourn to enable her husband or any other witness to attend this could be done."

The Tribunal drew attention to the absence of writing in the sense that there were no written representations before them and they took account also of the facts that the Applicant was legally represented. They concluded that she had chosen not to attend the hearing and unanimously they decided that the application for an adjournment should be dismissed. They then had an application as to costs and, of course, an application on the substance of the case. They dismissed the case and they made a particular order as to costs, namely, in relation to the costs of the day (and it was only the costs of the day that were being sought) that the Applicant should pay £250 towards the costs of the Respondent. That suffices for the moment as to the history of the matter.

We have had some particular cases drawn to our attention on the subject of adjournments at an Applicant's behest and the first case that was drawn to our attention was the case of Hewson v The Travellers Club. We have the transcript of the judgment of Mr Justice Peter Gibson and Mr Batho and Mr Drain in June 1985. The particular point that was asserted based on the Hewson case was that it illustrates that a Tribunal must not fetter its discretion in relation to adjournment; it must keep its eye on the overriding consideration that it is justice in the particular case that has most of all to be borne in mind. But there the extent to which the Chairman had fettered his discretion, or could be argued to have done so, was relatively plain because the Chairman had given reasons refusing a request for a postponement and in the course of doing so had written:

"... tribunals do not grant a postponement ... unless both parties agree to it, merely on the ground that counsel instructed to represent the party requesting the postponement will not be available on the listed hearing date."

One can see that where a Chairman has indicated that that is not a settled likely practise but an invariable course of conduct - "tribunals do not grant a postponement" - that he can be said to have fettered his discretion and hence it makes it relatively easy for the exercise of the discretion to be attacked, as it was then. We have no such corresponding fetter in our case. The notice of hearing represents no fetter on the discretion as exercised by the Chairman and his Members, not only because there is no indication they were even aware of it or referred to it, but because it deals with the entertaining of an application rather than what the outcome of an application, once entertained, should be. This application here was plainly entertained.

The second case that was before us was Giblett v Manpower Services Commission before Mr Justice Bristow, Mr Cooper and Mr Hooker in 1981 and Ms Annetts was good enough to read the whole case to us, quite rightly, because it is plain that one cannot derive very much from these cases without a knowledge of the facts. In that case, the Applicant was throughout in person, she had had only 14 days' notice of the hearing; only four days before the hearing she received an 80-page bundle of documents from the Treasury Solicitor acting for the Respondent Manpower Services Commission. She had attended at the hearing and explained in relation to a particular witness who the witness was and that that witness was going to be absent and a notable feature of that case, which led to the refusal of an adjournment being set aside by the EAT, was that, unusually, the Industrial Tribunal had allowed the Respondents to call evidence and that evidence naturally went to the merits of the case and that view of the merits of the case, as the judgment indicates at letter B on its last page, was such that the EAT said, speaking of the Tribunal:

"... they could not but be affected in the exercise of their discretion".

So that the Tribunal there had entertained matter which, relative to the discretion to adjourn or not, should not have been entertained and which must have affected their conclusion. Those differences represent very material differences from our case.

It must be remembered that what we have to ask ourselves is not whether we would have done as the Industrial Tribunal did. One can see that a powerful case for an adjournment was possible to be made. What we have to ask ourselves is whether a reasonable Industrial Tribunal properly instructing itself on the matters that were put in front of it, could have come to the conclusion at which this particular Industrial Tribunal did arrive. That, of course, places a very heavy burden on an Appellant and it is worth bearing in mind a number of factors. First of all, no evidence at any stage was put before the Industrial Tribunal relative to the issues sought to be raised and relied upon in relation to an adjournment. Precisely what the husband would have said, had he been able to attend, was not put in front of the Industrial Tribunal. It transpires not only that no witness statement, of course, was available (that we knew) but that not even a proof of evidence had been taken from the husband. The ground which is urged in front of us that there was a particular bond between the chosen advocate, Ms Annetts, and the Applicant, such that more than usually there was a disadvantage from the absence of the chosen advocate, was not a point that was raised before the Industrial Tribunal.

It is argued before us by Mr Johnston that the test of unfair dismissal here depended on the issue whether or not there had been a fundamental breach and that that is an objective test and that it is hard, therefore, to see what relevance could have attended upon the husband's evidence. That has some force. We cannot say it is by any means conclusive but it certainly was a position in which it would have been prudent for the Applicant, in seeking an adjournment based on the absence of the husband, clearly to have demonstrated precisely what it was that he would have been able to say and, therefore, to have met that point in a convincing manner. Nothing of the kind was done. Also, one has to bear in mind the offer made at the Tribunal itself to proceed as far as possible and to adjourn part-heard, should that become necessary. If that had been adopted, then only a little of the day, if any, would have been wasted and also the Tribunal would have been able to see in an informed basis what it was likely that the husband could add to the strength of the case as it had been presented.

Throughout the Applicant was represented by a solicitor, Ms Brown. The opportunity to attend was given, the opportunity to go part-heard was given. We cannot, when we address the question of whether a reasonable Tribunal could have come to the conclusion at which this one arrived, be satisfied that it could not. Moreover, once one gets to the position in which the Tribunal cannot be faulted in having allowed the adjournment, then the decision that it should have moved on to dismiss the application, has inevitable force and we do not see separately that that should be set aside either.

As to costs, the costs award of £250 in relation to the cost of the day has, of course, been put in issue in front of us but the position, as the Industrial Tribunal saw it (and we indicate we cannot fault them in this) was that here was a case that was brought by an Applicant who had elected not to attend on the day and that to that extent costs had been incurred on the Respondent's side which need not have been incurred had it been earlier indicated that the case was not to be fought. Had that been done, then the Respondent could have saved some, at least, of the costs of the day. Costs are, more than most, a matter of discretion and we do not feel able to conclude that a reasonable Tribunal, properly addressing the matter, could not have come to the decision at which this one arrived. Accordingly, we dismiss the appeal.