United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVENPORT (of Counsel) Mishcon de Reya Solicitors 21 Southampton Row London WC1B 5HS
For the Respondents	MRS WETHERFIELD (Solicitor) Warner Cranston Solicitors Pickfords Wharf Clink Street London SE1 9DG


 


JUDGE PETER CLARK: This is an appeal by the applicant before the London (North) Industrial Tribunal, Mr Nae, against, first, an order made by a Chairman by letter dated 30th May 1997 refusing to order the respondent to provide further and better particulars of the Notice of Appearance and to give discovery, and to order a postponement of the substantive hearing fixed for 12th-18th June 1997, and secondly against the Chairman's refusal to review that "decision".

We can dispose of the second limb of the appeal immediately. We accept the respondent's submission, which was not challenged by Mr Davenport, that the order made by the Chairman on 30th May 1997 does not fall within the meaning of "decision" in Regulation 2(2) of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 and is therefore not susceptible to review under Rule 11 of the Industrial Tribunal Rules of Procedure.

On 10th June 1997 we allowed the applicant's appeal against the order made by the Chairman on 30th May and gave certain consequential directions. Our reasons for so doing now follow.

History and procedural steps

The applicant commenced employment with the respondent airline on 22nd April 1970. He was dismissed on 16th May 1996. Since 1988 he had served as Staff Vice President/Overseas Controller in the respondent's International Finance Headquarters in England. He had formerly been employed as an accountant based in Israel.

Following his dismissal he presented an Originating Application to the Central Office of Industrial Tribunals on 12th August 1996, complaining of unfair dismissal, wrongful dismissal and unlawful racial discrimination. On 3rd October 1996 the respondent entered a Notice of Appearance resisting all three claims. However, on 21st April 1997 the respondent admitted liability in the unfair dismissal and wrongful dismissal claims, leaving quantum in issue, and maintaining its resistance to the claim of racial discrimination.

By an Order dated 13th December 1996 the Industrial Tribunal ordered the Applicant to give discovery of certain documents on or before 6th January 1997. He complied with that Order.

On 10th February 1997 the applicant's solicitors wrote to the respondent's solicitors setting out a detailed request for further and better particulars of the Notice of Appearance and seeking discovery of certain documents.

A directions heaving was held on 14th February at which no orders were made, but, following oral argument, the respondent voluntarily agreed to provide certain particulars and to give inspection to certain documents by 14th March. It was also agreed that witness statements would be exchanged 14 days prior to the full hearing, which was to be listed for five days commencing the week beginning 9th June. These steps are recorded in a letter from the Industrial Tribunal dated 24th February.

On 2nd April the applicant's solicitors wrote to the Industrial Tribunal, pointing out that the respondent had not supplied the voluntary particulars promised on 14th February, nor had they given discovery. They applied for an Order. That request went unanswered by the tribunal.

On 7th March the substantive hearing was fixed for 12th-18th June 1997.

On 23rd April the applicant's solicitors again wrote to the Industrial Tribunal, noting that the respondent had abandoned its defence on liability to the claims of unfair dismissal and wrongful dismissal. The letter continued:

"We note that it remains pleaded that "the reason for the Applicant's dismissal was due to the Respondent concluding that it no longer had the necessary level of trust and confidence in the Applicant's work to sustain a mutually beneficial employment relationship". This is now the only reason advanced for justifying our client's dismissal. It is wholly unparticularised due to the deletion of what was paragraph 9. In the circumstances, we apply for an order that that allegation is now particularised. If the Respondents intend to rely on what was pleaded in paragraph 9 to justify the dismissal then our Request for Further and Better Particulars as set out in our letter of 10 February 1997 (and as amended in front of the Tribunal on 14 February 1997) stands. In any event our request for documentation set out in that same letter which goes to the issue of race discrimination also stands.

In the absence of any particularisation whatsoever about the reasons for the Applicant's dismissal we will invite the Tribunal to draw its own inferences based on the oral and written evidence before it.

We would be grateful if the Tribunal would treat this application as a matter of some urgency. The Chairman made her order in respect of directions on 14 February 1997. This was confirmed in writing by the Tribunal on 24 February 1997. Despite repeated reminders to the Respondent's solicitors and also letters to the Tribunal we have yet to be provided with the particulars and discovery that the Tribunal indicated ought to be provided as long ago as 14 February 1997."

Again, no action was taken by the Industrial Tribunal on that letter and the matter was next pursued by the applicant on 27th May 1997 when his solicitors wrote to the tribunal asking for a postponement of the full hearing, by then listed for 12th-18th June.

The first reason for seeking a postponement was that the applicant's Counsel of choice would not be available.

Secondly, it was said that the applicant's application for an Order for further and better particulars and discovery made on 23rd April had been ignored.

The letter concluded by requesting a postponement and seeking an Order for discovery and particulars.

By letter dated 30th May a Chairman refused these applications. His reasons for so doing were expressed in this way:

"The Respondents have conceded that the Applicant was unfairly dismissed and the substantive issue is the Applicant's complaint of racial discrimination, the primary burden of proof of which rests upon him. The issues have been fully ventilated in pleadings and in correspondence and at the Interlocutory Hearing on 14 February 1997. The Respondents complied with the order for discovery dated 13 December and they will suffer avoidable expense and inconvenience if the hearing fixed for 12-18 June is postponed. The Chairman is not satisfied that any further orders for particulars and discovery are necessary for the fair determination of the proceedings."

By letter dated 3rd June the applicant's solicitors purportedly applied for a review of that "decision". We have earlier ruled that such an application was misconceived.

Interlocutory appeals

Our powers to interfere with interlocutory orders made by Industrial Tribunals are limited to correcting errors of law. Medallion Holidays Ltd v Birch [1985] IRLR 407. The principles to be applied are conveniently set out by Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, 782. In order to reverse such an order:

"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 the law was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918F.

The Appeal

The principal argument advanced by Mr Davenport on behalf of the applicant is that in refusing to order further and better particulars and discovery against the respondent on 30th May 1997, the Chairman reached his conclusion under a material misapprehension as to the facts. He thought that it was the respondent who had been ordered to give discovery on 13th December 1996, and that that order had been complied with. Such a misapprehension puts an entirely different complexion on the applicant's application. He was not seeking a second bite at the cherry. Tthe discovery promised by 14th March had not, he contended, fully taken place.

Further, there had been a significant development since the directions hearing held on 14th February. The respondent had amended the Notice of Appearance to delete the allegations of repudiatory breach of contract originally made against the applicant. It remained the respondent's case that the reason for dismissal was the respondent's loss of trust and confidence in the applicant. Since the remaining issue was whether the respondent had discriminated against the applicant by reason of his race in dismissing him, the applicant was entitled to know in detail the respondent's grounds for dismissal. This does not appear to have been taken into account by the Chairman when he concluded that the issues had been "fully ventilated in pleadings and in correspondence and at the interlocutory hearing on 14th February 1997."

For the respondent Mrs Wetherfield contended that the Chairman's mistake as to the discovery order made on 13th December 1996 did not amount to an error of law, and in any event was not material. Had the Chairman appreciated that it was the applicant against whom an order for discovery had been made, he would have been more, not less likely to issue a direction that the applicant and his lawyers had failed to litigate in a timely fashion. We confess we are quite unable to follow that submission.

More generally she submits that the respondent has given full discovery, a matter very much in issue; witness statements have now been served and voluntary particulars of the Notice of Appearance have been provided. There is no reason why the hearing should not now go ahead as arranged on 12th June. Company executives are on the point of flying over from the United States of America in order to give evidence.

Conclusion

We are conscious of the burden placed on Industrial Tribunal Chairmen to deal with interlocutory applications made on paper, and the pressure on the Industrial Tribunal system to process the increasing volume of cases as expeditiously as possible. Justice delayed is justice denied. A last minute postponement of a five day case may result in wasted, valuable tribunal time.

That said, such general considerations must not be allowed to obscure the need to do justice in individual cases.

In our judgment the Chairman's mistake as to the identity of the party against whom the discovery order was made on 13th December was more than a mere slip. It was plainly a material consideration in the Chairman's conclusion that it was not appropriate to order discovery against the respondent. He thought that an order had already been made against them and complied with.

Further, it is not satisfactory to ignore applications for interlocutory orders. The applicant's solicitors letters of 2nd April and 23rd April were simply not dealt with, in circumstances where the respondents had agreed to voluntarily provide particulars and give discovery. If such an undertaking is not complied with by the agreed date, orders of the tribunal must inevitably follow in the absence of good reasons to the contrary.

The amendment to the Notice of Appearance was highly material to the race discrimination issue. It was plainly wrong not to order particulars of the reason for dismissal now relied upon by the respondent.

For these reasons we allowed this appeal, set aside the Chairman's refusal to order particulars and discovery, vacated the dates set for the hearing and gave the consequential directions considered necessary for the future conduct of these proceedings.