United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A RITCHIE Messrs Radcliffes Solicitors 5 Great College Street Westminster London SW1P 3SI


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman who refused to postpone a case which is scheduled for hearing over a four or five-day period commencing on 8 December 1997.

Effectively, there are three letters from the Tribunal comprising the various decisions that were made. The first is a letter of 15 August 1997 in response to what the Tribunal Chairman then had available to him, which was a letter of 25 July 1997 from the Respondents' Solicitors, and a further letter of 31 July from the Respondents' Solicitors.

There had been a letter of 6 August also from the Respondents' Solicitors, which, it seems to us, probably should have been before the Chairman, according to the documents which we have seen. But it was not before him. His decision was that the case should take place in accordance with the date fixed for hearing of which the parties had been made aware on 23 July 1997.

Broadly speaking, the basis on which the applications for vacating the date were based, was that the time estimate of four to five days was not going to be sufficient.

The Chairman refused the application for a postponement saying that he balanced the request against the desirability of bringing the case to a hearing without delay. The case, in his view, should start on the date arranged and if necessary would go part-heard to a date fixed by the Tribunal at the first hearing. It is the experience of this court that frequently parties over-estimate the length of a hearing which is to take place and that this is a feature of Industrial Tribunal proceedings as well. Accordingly, it seems to us that it was eminently sensible of the Industrial Tribunal Chairman to decide that the date should be held for the hearing of the case because it was their experience, no doubt, too that cases did not take as long as the parties were asserting.

The Tribunal indeed were of the view that there was an exaggeration by the Solicitors, acting for the Riverside Mental Health Trust, of the need for a 10-day hearing, having regard to the fact that the dismissal was well documented and that the ambit of the enquiry necessary for disposing fairly of his application for unfair dismissal was being exaggerated.

We do not accept the criticism which has been made that the Tribunal have somehow misunderstood the letter of 31 July, that somehow the Chairman has thought that the Respondents' Solicitors were saying something which they were not. We take paragraph 2(3) of the letter of 15 August as simply a general statement that the Respondents' Solicitors had exaggerated the burden which would be placed on an Industrial Tribunal hearing a complaint of unfair dismissal. Indeed, it is undesirable that hearings for unfair dismissal should be unduly protracted. The Tribunals were set up to provide a quick and speedy way of dealing with such complaints and it is to be regretted that cases are made so complicated that great time is spent in dealing with them, largely unnecessarily.

The Tribunal Chairman did not have the benefit of a letter, which had apparently been faxed to the Tribunal on 6 August, making, in addition, the point that the principal witness for the Trust would be abroad on holiday at that time. Quite rightly, the Solicitors, having received the first decision of the Tribunal took the point that there was no reference to this fact in his decision. They wrote on 19 August. They say:

"Mr Walsh was the Manager who conducted the investigation which resulted in disciplinary action being taken against the Applicant. Mr Walsh also prepared and presented the Statement of Case at the disciplinary hearing. The only other person involved in the investigation throughout was Miss Laura Davinson who was tragically killed in a road accident in January.

Mr Walsh will be on holiday abroad during the whole of the week of 8th December."

The matter was therefore put before a Chairman and he responded on 21 August 1997 saying:

"The Chairman has considered your renewed request for a postponement in this case and has decided that your reasons are not sufficient to order a postponement. The hearing will proceed as scheduled.

The Chairman has seen no reason to change his decision. This case is very old and must proceed. If necessary the witness will have to alter his arrangements."

It seems to us that that was a perfectly fair comment for the Industrial Tribunal Chairman to have made. The case was fixed for hearing, as we have said, on 23 July 1997. It would appear from what we have been told that Mr Walsh had booked his holiday at the end of May or early June. The place of his holiday is Guernsey and it seems to us that it would, in normal circumstances, have been quite appropriate for a Chairman to say that a witness should change his holiday dates in order to fit in with the Tribunal's extremely busy schedule. Cases are not fixed to suit the convenience of the parties because otherwise this would inevitably lead to unnecessary delay while parties bickered about availability. The case is very old and the Chairman was right to make that point.

There was then a Notice of Appeal put in against the refusal of the Chairman to grant the postponement and when that appeal was served a copy of it was provided to the Industrial Tribunal who indicated that they had in fact not received the letter of 6 August.

In his submissions before us Mr Ritchie says that there has been an error of law. He says firstly that the Tribunal misunderstood what the case was about and why the Solicitors were saying that more than five days would be required; and, secondly, that the Chairman ought not to have said what he did about the witness changing his holiday dates without having enquired about their circumstances. I have dealt with the first point. In my view it is misconceived.

In relation to the second, it seems to me that the Chairman was under no duty to make further enquiries. They had no reason to believe other than what they had been told, namely that Mr Walsh had fixed a holiday for that particular date.

During the course of the hearing before us Mr Ritchie said that it was not really just a holiday that this witness was planning; but that there was some particular personal circumstance which applied which meant that it was impossible for him to change the date, and he invited us to receive a letter from Mr Walsh explaining this personal circumstances. That was material which could have been placed before the Industrial Tribunal, but was not. It seems to us quite inappropriate that we should be invited to consider material which could and should have been provided to the Industrial Tribunal if it was felt that it was a relevant factor for the Industrial Tribunal to have taken into account. Accordingly, we refused to receive it.

It is, of course, open to any party at any stage to make any application that they want from time to time. We do not wish to suggest that an Industrial Tribunal would be prepared to accede to a further application for an adjournment, but it seems to us that it is to the Industrial Tribunal that these matters should be directed rather than waiting until the matter comes on for hearing of an appeal and then inviting the appellate tribunal to consider something which the Industrial Tribunal has not had the opportunity to consider for themselves.

During the course of argument it has become plain that the Industrial Tribunal also refused to make directions and there is, as we understand it, no specific ground of appeal in relation to that decision. However, it does seem to us that the Industrial Tribunal should, with respect, be invited to consider, as a matter of urgency, whether or not it would be appropriate to order an exchange of witness statements in this case. The reason why we take the view that such would be desirable in this case is that both parties have the advantage of being represented by Solicitors.

It seems to us that the case will be much more orderly and the Tribunal will be better able to manage it if it knows in advance what the witnesses are going to say. We also think that it would be a good idea if the parties were to seek to agree bundles of documents.

We, ourselves, were invited to make directions. We declined to do so because we think that this is a matter best left to the good sense of the Industrial Tribunal, but we do strongly encourage the Industrial Tribunal if an application is made by Riverside Mental Health Trust, to hold a directions hearing within the next seven days or so in order that proper consideration can be given to the advantages of witness statements and matters relating to documentation.

Accordingly, we are satisfied that the appeal should be dismissed.