United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR B M COLLIGNON Employee Relations ECA Ltd ESCA House 34 Palace Court London W2 4HY
For the Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE J HICKS QC: Mrs Hilary Hunter was employed by ABB Steward Ltd and the time came when she was dismissed, ostensibly for redundancy. She complained of that to the Industrial Tribunal alleging sex discrimination, that her dismissal was on the grounds not of redundancy but pregnancy, and thirdly that if it was redundancy there was an unfair selection process.

The details of her claim, as appearing from her Notice of Application, were that she had been the personal assistant to the Financial Director of the employers, who had left on 23 June 1996. She was told by Mr Brown, she alleges (Mr Brown being a senior member of the management), during a discussion following the departure of the Finance Director and during a period when she was preparing a report as to what future role she could fulfil, that her pregnancy and maternity leave were an obstacle to her staying with the Company and that she ought to be at home looking after her children, not trying to further her career.

That allegation, if established by Mrs Hunter, would plainly be an extremely material allegation and, on the face of it, would show a strong case of discrimination against her on the ground of her pregnancy and thereby on the grounds of sex. She complained about that within the Company and on 12 August 1996 had a meeting with Mr Lord, one of the employer's Directors, I think, and certainly senior to Mr Brown, but also with Mr Brown, who was present at that meeting, and she alleges that nothing was done about her complaint.

She was on maternity leave from 27 September 1996. The date for her return was fixed by her under the statutory provisions for 24 March 1997, but by letter of 18 March she was dismissed on the grounds of redundancy. Those, of course, are all allegations by her. Nothing has yet been heard or decided by the Industrial Tribunal as to their truth.

The Notice of Appearance, among other things, alleges that Mr Brown categorically denies any derogatory comments at the relevant meeting. It is not in dispute that there was a meeting between Mrs Hunter and Mr Brown.

The Industrial Tribunal fixed a hearing date of 12 September. On 26 August there was an application by the Applicant for postponement because she was going to be away until 22 September 1997. That application was granted by letter dated 27 August, without any notice to or consultation with the employers, as to whether they opposed that application or not. Mr Collignon tells us that, in fact, they do not dispute the propriety of that order but, as I say, they were not consulted and no notice was given to them of the application before the decision was made.

By a letter dated 28 August the hearing was re-fixed for 26 September and on the following day, 29 August, there was an application by the employers for postponement because, so it is said in the letter of application, "one of the Respondent's key witnesses will be out of the country until 6 October".

On 2 September the office of the Industrial Tribunal wrote asking which witness was unavailable and that was answered on 8 September in a letter which stated that the witness concerned was Mr Lord, and the letter goes on: "... one of two witnesses that I anticipate will give evidence."

It does not appear from that letter who the other one was. Mr Collignon tells us today that the other witness contemplated was Mr Brown, but that it was by no means decided at that stage whether he would actually be called or not, and no investigations had been made at that stage as to whether he was available on the date then fixed for the hearing.

In response to that the application was refused, and the reasons given were that "Mr Brown appears to be the material witness" and that "Mr Lord appears only to be corroborating and he could submit a written statement". After that decision was communicated the employers made further enquiries and discovered that Mr Brown was also unavailable for the hearing date fixed for 26 September. They also enquired whether the Applicant supported or resisted the adjournment and obtained a letter from the Applicant's Solicitors supporting their application for an adjournment. It seems clear that on that occasion also, therefore, the Industrial Tribunal had not given notice of the application to the other side or obtained the other side's views on the application.

The employers now appeal against that refusal of a postponement and we can only allow that appeal if the exercise of the discretionary power to postpone - because it is clearly a discretionary power - was one which was erroneous in law, which in the context of the exercise of a discretion means either that the Tribunal below took into account some wholly immaterial matter, or failed to take into account some material matter, or that their decision is one which no Tribunal, properly directing itself as to the law, could reach or that there was some material procedural unfairness or injustice.

As to taking into account matters that should not have been taken into account, the matter which the Chairman, who took the decision, clearly chiefly took into account was the fact that the application was made on the basis of the unavailability of a crucial witness and the Chairman took the view that the key witness from the employer's point of view was not Mr Lord but Mr Brown, who was the only party other than the Applicant to the crucial conversation and who was also present at another important interview, albeit on that occasion Mr Lord was present also. It seems to us that we cannot possibly say that that was not a material fact to take into account, or that the Chairman erred in that respect.

As to whether the Chairman failed to take into account material facts, the material fact put before him was that Mr Lord was out of the country. It is not conceivable that he failed to take that into account. In fact he manifestly did so, because he referred to Mr Lord's position as being a corroborative witness and one who could make a written statement. Nor, on the face of what was before the Chairman at the time, do we see it possible to say that it was a decision that no Tribunal, properly directing itself, could make.

But when we come to the fourth ground on which a discretionary decision can be reversed on appeal, in our view the position is different. It is a fundamental principle of the administration of justice that when any matter is before the court both sides should be heard. Of course, on applications like this for a postponement made by letter, there need be no particular formality in the way that is done, but the fact is nothing was done to ascertain whether this application was opposed or not by the Applicant, Mrs Hunter. It so happens that we now know that, if consulted, she would have supported it, but that is not really the point. The point is that there was no such notice or consultation and for that reason we consider that the decision was wrong in law and that the appeal must be allowed.

That being so, manifestly we have to exercise the discretion ourselves. It is much too late to remit it for further consideration by the Industrial Tribunal because the hearing is fixed for tomorrow. In dealing with the application therefore as it stands, and exercising our own discretion, we manifestly must take into account all the facts as known to us, and they include two material and important facts not known to the Chairman who made the decision to refuse postponement. One is that the witness whom the Chairman perfectly properly regarded as the most material witness, Mr Brown, is also unavailable and the other is that the attitude of the Applicant, which was not known to the Chairman, is known to us, and is one of support for the application for a postponement. I have recited all the material facts. We have taken them all into account and our view is that we should exercise our discretion by granting the application for a postponement.