At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
LORD GLADWIN OF CLEE CBE JP
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR BOOTH Free Representation Unit Room 140 49-51 Bedford Row London WC1R 4LR |
For the Respondents | MR SNELL (of Counsel) Messrs Kendal Davies 1 The Square Stow On The Wold Gloucester GL54 1AD |
JUDGE PETER CLARK: This is an appeal by the Applicant before the London (North) Industrial Tribunal, Miss Hayden, against an order made by a full Industrial Tribunal on 17 October 1996 that a stay of the Tribunal proceedings first ordered by consent on 8 February 1995, should continue. Summary Reasons, ordered by the Chairman to stand as Full Reasons for that determination, are dated 30 October 1996.
History
The chronology is important.
On 26 April 1993 the Applicant informed the Respondent that she was pregnant.
On 25 June 1993 she was summarily dismissed by the Respondent from her position as an Accounts Manager for alleged misconduct. It is the Respondent's case that she was conspiring with others to set up a competing business.
On 26 August 1993 the Respondent obtained an injunction ex parte in the High Court, restraining breaches of confidentiality and ordering delivery up of customer lists and lists of components.
On 21 September 1993 the Applicant presented a complaint of both unfair dismissal and direct sex discrimination to the Industrial Tribunal.
On 4 November 1993 the ex parte injunction granted on 26 August was discharged following an inter partes hearing before Sir Peter Pain.
Thereafter the High Court action proceeded slowly and on 9 September 1994 the Respondent wrote to the Tribunal asking for a postponement of the Tribunal proceedings pending determination of the High Court proceedings. On 6 February 1995 the Applicant's representatives agreed to a stay and a consent order was made on 8 February 1995.
The High Court proceedings trundled on, with occasional bursts of interlocutory activity.
On 2 July 1996 the Regional Office of Industrial Tribunals wrote to the parties asking for an update on the High Court proceedings. The Respondent replied on 4 July 1996 that a Directions Hearing was due to take place before the Master on 18 July 1996. At that stage either the proceedings would be discontinued or brought to trial in about six months time.
The Tribunal, of its own motion, listed the matter for a substantive hearing on 17 October 1996. At that hearing the Tribunal heard submissions on both sides and concluded on the balance of convenience that the stay ought to continue until after determination of the High Court proceedings.
The Appeal
Mr Booth puts his case concisely and attractively. He accepts that we can only interfere with the Industrial Tribunal's order in the circumstances set out by Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 at 782, where he said:
"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 statement of law was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918F.
He invites us to interfere on two alternative grounds. First, that the Tribunal misdirected itself in regarding the decision of this Appeal Tribunal in Cahm v Ward and Goldstone Ltd [1979] ICR 574 as laying down a principle that pending High Court proceedings provided an automatic reason for a stay of Industrial Tribunal proceedings. That is not how we read paragraph 3 of the Tribunal's Reasons. They found the case of Cahm of assistance in exercising their discretion in this case. No more than that.
Secondly, he relies on the general perversity ground. In support of that submission he relies on the delay in getting the High Court proceedings on for trial since the stay of the Tribunal's proceedings was ordered by consent in 1995. There clearly has been delay in those proceedings, but we cannot accept that that lies solely at the Defendant's/Respondent's door. It was open to the Applicant to apply to have the matter set down; she has not done so. Equally, she did not apply for the Tribunal stay to be lifted. As we noted the case was listed for hearing on 17 October 1996 on the Industrial Tribunal's initiative.
Next he relies on the indication given by Sir Peter Pain at the inter partes hearing in November 1993 that there was no serious question to be tried. However, that was at the interlocutory stage. That view was reached presumably on affidavit evidence. What will happen at trial when the live witnesses are heard is another matter. We should also observe that Sir Peter Pain's decision was reached well before the Applicant's advisers consented to a stay of the Tribunal proceedings in February 1995.
Further, he submits that the Tribunal attached too much significance to the question of issue estoppel. It is right to say that the issues raised in the question of unfair dismissal are different from those raised in the High Court proceedings. However, if a question of contribution arises following a finding of unfair dismissal in the Tribunal proceedings, that will lead to findings of fact which would be material to the High Court proceedings and binding on the High Court judge.
In short, this is a case where we might have taken a different view exercising our discretion as an Industrial Tribunal, but that is not the test. We have concluded that the Tribunal's decision cannot be characterised as perverse and accordingly we discern no error of law permitting us to interfere with that decision.
In these circumstances the appeal must be dismissed.