United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MS D ROMNEY (of Counsel) Beachcroft Stanleys Solicitors 20 Furnival Street London EC4A 1BN


 


JUDGE PETER CLARK: We have before us two appeal by Mr Goldman. The first (EAT/1238/96) is dated 6th November 1996 and is an appeal against an order in the form of a Notice of Hearing dated 28th September 1996, listing his consolidated Originating Applications (Nos. 29221/92 and 46844/92) for hearing for four days between 9th to 14th January 1997. Those dates were subsequently vacated, and as a result Mr Goldman has withdrawn that appeal. The second appeal is against an order made by a Chairman, Mr Giles Flint, sitting alone at London (North) on 12th February 1997, refusing to postpone the hearing of those application which had been re-listed for 21st to 24th April 1997. Written reasons for that order are dated 20th February 1997. Although the subject matter of the second appeal only is extent, the principles raised in both appeals are the same.

We should begin by setting out chronologically the main events in these proceedings and related litigation in the High Court.

The appellant commenced employment with the then respondent Health Authority on 3rd September 1990. He was originally appointed Human Resources manager, later becoming Director of Human Resources for the Authority's North London College of Health Studies.

On 22nd April 1994 he was sent on "special leave" by the College Principal, Mr Stephen Li. On 1st June he was suspended on full pay pending a disciplinary hearing.

On 8th June 1992 he presented his first Originating Application to the Industrial Tribunal. He alleged discrimination on the grounds of his race.

On 23rd June 1992 the appellant was dismissed.

On 14th September 1992 he presented his second complaint, alleging both race and sex discrimination, relying on the dismissal on 23rd June 1992.

The respondents put in Notices of Appearance to both complaints resisting them.

In September 1992, unknown to the respondents, the appellant was made bankrupt.

On 17th November 1992 the Authority issued High Court proceedings claiming the return of a motor vehicle from the appellant.

On 15th December 1992 the appellant counterclaimed in those proceedings for damages for wrongful dismissal and/or a declaration that he was not dismissed.

On 7th January 1993 the Industrial Tribunal indicated an intention to list the tribunal proceedings for hearing in August/September 1993, and on 30th January the appellant applied for a stay of the Industrial Tribunal proceedings on the grounds, inter alia, that the High Court proceedings had a bearing on the Industrial Tribunal proceedings.

On 4th March 1994, at an interlocutory hearing, a Chairman of Industrial Tribunals ordered that the Industrial Tribunal proceedings be stayed until after disposal of the wrongful dismissal proceedings in the High Court. That order and reasons therefor are contained in a letter dated 16th March 1994.

Between August 1994 and May 1995 the appellant issued some nine writs against various parties including the Health Authority allegation defamation. The substance of those actions lay in witness statements taken by the respondent from nine of its employees concerning the appellant's conduct and competence during his employment.

On 2nd August 1995 the Health Authority wrote to the Industrial Tribunal in these terms:

"At present Mr Goldman has a number of sets of proceedings against New River Health Authority, as well as a number of individual Defendants. These include a claim for wrongful dismissal as well as claims for defamation against ten Defendants. This litigation is proceeding at a slow pace due to the complexities of the factual situation which has given rise to the claims. In our opinion it will take anything between two and three years for these claims to be heard and adjudicated upon."

On 29th November 1995 the appellant's High Court claim for wrongful dismissal was stayed on the grounds that he was a bankrupt and on 9th May 1996 that claim was struck out.

An application by the defendants in the defamation actions to have those claims struck out succeeded before the Master on 18th December 1995, but they were reinstated on appeal to the Judge on 26th March 1996.

On 28th September 1996 the tribunal sent out the Notice of Hearing of the consolidated applications to take place between 9th to 14th January 1997.

By letters dated 4th and 7th October 1996 the appellant applied for a postponement of the tribunal hearing on the grounds that the High Court litigation - now claims for defamation and not wrongful dismissal, ought to be heard first. He also relied on the complexity of the litigation, as described by the respondent's solicitors in their letter of 2nd August 1995, and the imbalance of representation between the parties. He appearing in person, the respondents having instructed solicitors who had put two partners and two solicitors on the case.

On 11th October the respondent's solicitors wrote to the tribunal, also asking for a postponement on the grounds that a hearing in January would be inconvenient for their witnesses. However, they asked for the matter to be re-fixed on a convenient date.

By letter dated 29th October 1996 a Chairman granted the respondent's request for a postponement.

On 6th November 1996 the appellant lodged his first Notice of Appeal, which he has now withdrawn.

Subsequently the Industrial Tribunal hearing was re-fixed for 21st to 24th April 1997 and the appellant applied for a further postponement. That application, which was opposed, came before a Chairman, Mr Flint, on 12th February 1997. He ruled that the cases should proceed on 21st to 24th April. The principal reasons for his refusal to adjourn the proceedings further were these:

(1) that the wrongful dismissal proceedings, which had influenced the Chairman's ruling that the Industrial Tribunal proceedings be stayed in March 1994, had terminated.

(2) there would be no material findings of fact in the defamation proceedings, to be tried by a judge and jury, which would bind the Industrial Tribunal, nor vice-versa.

(3) there had already been considerable delay since these proceedings were commenced in 1992, and that the interests of justice now required that the Industrial Tribunal proceedings be heard.

Against that order the appellant brings his second appeal.

As to the defamation proceedings, most recently directions were given by Master Tennant on 22nd January 1997. It is unlikely that those proceedings will be heard before 1998.

The Appeal

We remind ourselves at the outset that appeals against interlocutory orders, as well as final decisions of Industrial Tribunals, lie to this appeal tribunal on a point of law only.

The approach to be taken in appeals such as this was set out by Arnold J in Bastick v Lane [1979] ICR 778, 782B-C, where he said this:

"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That approach was expressly approved by Stephenson LJ, giving the leading judgment in the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908, 918.

In attacking the Chairman's reasons and conclusion Mr Goldman takes the following points:

(1) that the Chairman was wrong to distinguish between wrongful dismissal proceedings and defamation proceedings. The issues raised in both sets of proceedings and in the discrimination proceedings before the Industrial Tribunal are essentially the same, the competence and conduct of the appellant in his employment.

In our judgment the Chairman was perfectly entitled to draw that distinction. The reason why unfair dismissal proceedings are frequently stayed in the Industrial Tribunal pending wrongful dismissal proceedings in the High Court is that similar findings of fact are made in both sets of proceedings, the first giving rise to an issue estoppel in the second. It is generally, though not always, considered that such findings ought to be made first by the High Court.

We are unable, like the Chairman, to see how the findings of the Industrial Tribunal in the discrimination proceedings will give rise to a true issue estoppel between the parties, particularly the individual defendants, in the defamation proceedings. Our view is that Miss Romney's submission that findings by the Industrial Tribunal will resolve factual questions in the defamation proceedings is incorrect, although that will of course be a matter for the Judge presiding over the defamation trial.

(2) that the case before the Industrial Tribunal is complex, and it will be better to progress the matter through the more rigorous interlocutory procedures of the High Court. We are told that the respondent has disclosed some 2,000 pages of documents, contained in six lever arch files, in the Industrial Tribunal proceedings. This does not appear to be a case where there is any difficulty experienced as a result of the less formal interlocutory procedures before the Industrial Tribunal.

(3) that the Judge and/or jury in the defamation proceedings would make binding findings of fact for the purposes of the Industrial Tribunal proceedings. We reject that submission. The Judge will direct the jury which will return its verdict in favour of either the plaintiff or the defendants, and if in favour of the plaintiff, will award him damages in whatever sum the jury thinks is appropriate. It will not spell out its findings on the defences of justification or qualified privilege, in respect of which the appellant relies on malice. Further, this case is not analogous to the cases where Industrial Tribunal proceedings are adjourned pending a criminal trial. There is here no question of self-incrimination.

(4) the damages recoverable in the High Court proceedings are likely to be greater that the compensation awarded to the appellant, if successful, in the Industrial Tribunal proceedings. That does not seem to us to be material. There is no limit on compensation for unlawful discrimination on the grounds of sex or race. It is quite impossible to say which claim is likely to be the greater; even if it were, that would not a significant factor.

(5) the Chairman failed to deal with the appellant's submission that he need more time to prepare his case. Although not specifically dealt with in the Chairman's reasons it is clear to us that he had the point in mind, and that did not persuade him to grant the postponement. We are not surprised. 4½ years is long enough to prepare a case of discrimination, however complex it is said to be.

We return to the words of Arnold J. In our judgment it has not been shown that this Chairman has taken into account irrelevant factors, or failed to take into account relevant factors; nor can the decision be said to be perverse in the sense that it is an impermissible option.

On the contrary, it strikes us as eminently sensible to get on with this case, given the change in circumstances since the original Chairman's order of March 1994, and its age.

In these circumstances this appeal is dismissed.