United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M C CRAFT (Solicitor) Messrs Blake Lapthorn Solicitors 1 Barnes Wallis Road Segensworth Fareham Hants PO15 5UA
For the Respondent	MR A KORN (of Counsel) Messrs Barlows 55 Quarry Street Guildford Surrey GU1 3UA


 


JUDGE J HULL QC: This is an appeal to us by Mr Francis Richard Northcott, who was the Respondent to an application by the other party, Mr Nicholas John Litchfield, the Applicant in the Industrial Tribunal. He was a Respondent to Mr Litchfield's application for unfair dismissal and sex discrimination. Mr Litchfield claimed compensation.

The circumstances can be put fairly shortly. On 29 September 1982, Mr Litchfield began his employment as Farm Manager for Mr Northcott. He continued in that employment, apparently without criticism, until the end of 1996 and then unhappy things happened. He was summarily dismissed, it is now said, on 31 January (he thought at first it was on 16 December 1996). Very displeasing allegations are made on each side about the circumstances of that. There were certainly allegations made by the Appellant which, if true, would suggest that Mr Litchfield is unfit for a responsible position. There are certainly allegations made by the Applicant showing, if true, that Mr Northcott is a man who has behaved in a very unpleasant and arbitrary way, but we are not going to go into those at all, except to say that where serious allegations are made, it is plainly very important that they should be tried as soon as possible and as fairly and thoroughly as possible, so the true state of affairs can be brought to light.

It was not until 14 March 1997 (of course, well within time) that Mr Litchfield issued his IT1, his application to the Industrial Tribunal, complaining, as I said, of unfair dismissal and other matters. That was evidently delivered some time towards the end of the month by post at the Appellant's office, but the Appellant was out of the country and he opened it apparently on 1 April.

On 3 April (and we can see this in a letter at page 27) Solicitors instructed by the Appellant wrote to the Regional Office, asking for an extension of time for filing the Notice of Appearance until 30 April. It was explained that he had only just returned; that that very day, 3 April, he was off again on his foreign travels. He is a businessman with international interests and frequently travels abroad. So that extension was asked for.

Thereafter, apparently, nothing was heard from the Regional Office. There were phone calls again, and again, and again, and eventually, on 18 April, the information was given by the Regional Office, on the telephone, after these various phone calls, "We've lost the file", so that was an obstruction to safe navigation in this litigious field. However, on 23 April there was a letter, that is at page 29. It had taken the Regional Office nearly three weeks to reply and they said in this letter:

"1. The respondent's application for an extension of time to enter an appearance dated 21/04/97 [that was quite wrong, the application had been made on the 3rd, so presumably whoever was writing the letter had not managed to find the file, or if they had, had not read it] has been considered. An extension of time to enter an appearance has been granted until 30/5/97."

So that was the order made and sent to the Appellant's Solicitors. However, it was thought right to write another letter, on the same day, to the Respondent's Solicitors (they were, of course, here called the Applicant):

"The respondent's application for an extension of time to enter an appearance dated 21/04/97 has been considered. An extension of time to enter an appearance has been granted until 30/4/97."

So the Regional Office had improved matters, so to speak, by first of all delaying three weeks to deal with the matter, then wrongly stating the date of the application and then telling the two parties different dates for the extension.

The next thing that happened that is material is recorded in the letter at page 31. Here was a Notice dated 16 May, well before the date given to the Appellant for putting in his Answer and it was a Notice of Hearing:

"The application will be heard by an Industrial Tribunal at Montague Court ... on Thursday, 12 June 1997."

In other words, within 12 days of the date for putting in an Answer. On the face of it, a curious direction to give because clearly, the Applicant would want to consider the Answer when it came and decide what to do about it, but there it was. The explanation becomes fairly obvious. The Office had not yet woken up to the fact that they had given until 30 May for the Answer to be put in. So that was on 16 May.

Then the next thing was that on 19 May (at page 14 of our bundle) the Answer was duly put in. Therefore it was a timeous Answer. It was within time and it alleged misconduct and I am not going to repeat all the allegations there. First of all, it says that the dismissal was justified by misconduct and then it made some further allegations, which I am not going to repeat.

Then on 22 May the Appellant (the Respondent below) wrote saying, by Solicitors:

"We refer to the Notice of Hearing. ... .

The Respondent has a substantial number of business commitments abroad during June 1997 and a number of board meetings have been arranged during that month in the United States of America.

Our client is not, therefore, available for a hearing during June, but confirms that he will be available in the UK and available to attend the hearing in the week commencing 14th July."

That was evidently understood by the Tribunal as saying, "Those are the only days when he will be available, in the week commencing 14 July".

On 29 May the Tribunal dealt with that with unaccustomed promptness. They wrote within the week:

"1. The Notice of Appearance has been received by the Tribunal outside the 21 days provided by Rule 3(1) of the Industrial Tribunals Rules of Procedure 1993 ... . As it contains no reasons why it was presented out of time nor is there any application under rule 15 for an extension of time in accordance with rule 3(3), it is not accepted as a valid Notice of Appearance."

This from the same Tribunal, which had just given an extension until 30 May and ending up, in peremptory fashion:

"Accordingly, you are not entitled to apply for a postponement of the hearing."

Then on page 35, the Solicitors wrote pointing out that they had an extension of time to enter an appearance until 30 May and therefore the Notice was not out of time and on 4 June the Respondent here wrote to the Regional Office (at page 55) complaining that the matter had been handled badly. Further to the writer's conversation with Mrs Parker-Beale, she is a lady in the office:

"... we write to express our very grave concern at the course which this case is taking.

We were advised by the Tribunal, and we presume that an identical copy letter [of the extension of time] was sent to Blake Lapthorn, that the extension of time to enter an appearance was granted until 30 April 1997."

So there they were, at any rate, acquainting the Tribunal with the mistake which had been made. I am not going to go on with the rest of that letter. The Tribunal was then told that there was a mistake and, indeed, if we want to see what was going on during this period, we can see it at the top of page 42 of our bundle. The Appellant's Solicitors were busy ringing up:

"Our file notes record that Mrs Woods was told on 4th June that the postponement had been agreed [this was by the Tribunal]. She was told on 6th June that the file had been referred to a Chairman for further consideration and on 9th June that the hearing had been postponed to a date to be fixed in the week commencing 14th July and that written confirmation of that decision was to be despatched to the parties that day."

So there it was. After all these phone calls and being told that the Chairman had decided the matter, or was to decide the matter, the Appellant's Solicitors were told that it was for the week commencing 14 July.

On 9 June, we see this at page 37, a letter was sent by the Industrial Tribunals Office to Barlows from the Regional Office of the Industrial Tribunals, thanking them for their letter of 4 June:

"I am sorry that you and your client have been inconvenienced by the events of recent weeks. I confirm that the Respondent's solicitors were told that the time of submission of the Notice of Appearance was 30 May 1997.

To save any further delay the Chairman has directed that this case be heard in the week commencing 14 July."

So that was plain notice to the Respondent here today that the hearing was to be on 14 July. So far as the Appellant was concerned he received a rather less courteous letter of 9 June:

"Thank you for your letter ... which has been referred to Chairman of Tribunals.

He has instructed me to acknowledge receipt of the Notice of Appearance which has been copied to the other party."

No apology here for all the mistakes which were being made and all the difficulties and delays and all the phone calls which had to be made. Not even the Notice, which was of course in the letter at page 37, of the hearing date. What did come, three days later, on 17 June is at page 38 of our bundle and that says:

"The application will be heard by an Industrial Tribunal ... on Wednesday, 23 July 1997 at 10.00 am ..."

And it called on the parties to object within 14 days, if there was any difficulty over this. No explanation of the change. What was the explanation? We have now heard that the week commencing 14 July turned out not to be convenient to the Respondent. Why not? It was not the Respondent, the gentleman who was so anxious to clear his name, who could not attend, it was his Solicitor. His Solicitor was off, apparently, for a week's holiday, or so we believe, having been told that. So notwithstanding the interests of both Appellant and Respondent in getting this case heard promptly, that Solicitor, without a word to the other side, had apparently rung up the Industrial Tribunals office and, on some basis or other, had persuaded the Tribunal to say, "Not the week commencing 14 July", which had already been communicated by letter to one party at any rate, and by phone to the other, but to say, "Alright, well 23 July".

So it was altered purely to suit the convenience (and it was a matter of convenience, because it was a holiday apparently) not of one of the parties, not of one of the witnesses, but of the Solicitor. It goes without saying that any Solicitor can either, by agency arrangements or by instructing Counsel, obviate, except in the most extraordinary case, any disadvantage to his client from the fact that he personally cannot be there, but that course was not taken and the Solicitor to this Farm Manager, who was so anxious to get his name cleared, thought it right to get the date altered. Moreover, of course, the request was, as the Tribunal took it, to book a date which was impossible for the Appellant, because it was taken that a date in the week commencing 14 July was the only date which this Appellant could meet in July and so there it was being altered to a date which was known to be impossible.

Then there is an important letter (I am not going to read the whole thing) on pages 53 and 54, on 13 June from Blake Lapthorn, the Appellant's Solicitors, to the Respondent's Solicitor, saying:

"The administration of this case by London South Industrial Tribunals has clearly caused confusion and difficulty for both our clients in this case."

A sentiment with which we entirely agree; and the letter set out the history of the matter. The next thing that happened was that on 20 June (at page 39 of our bundle) the Appellant's Solicitors wrote to the Tribunal saying that they had been told on 9 June that the date was to be in the week commencing 14 July, and that:

"Our client [the Appellant] is not available to attend the hearing on 23 July. We have already indicated the extent of our client's business commitments ... .

Our client will be abroad on business on 23rd July next. We must, therefore, with regret, apply for a postponement of this hearing date. We have, at the same time, contacted our client's office ... to check on his availability from 23rd July onwards.

We can confirm [that, of course, is in the absence of further consultation with him] there are two available hearing dates for August 14th and 15th. The position as to September is, at present, uncertain. ..."

They say they therefore apply for a postponement of this date and there is an answer at page 40:

"A Chairman of the Tribunals has asked me to reply [we know that this letter was sent on the direct instructions of the Chairman].

The case was listed for 23 July rather than 14 July because your opponents indicated they were not available on 14 July [it did not say because the Respondent had indicated he was not available on 14 July, it really would have been rather more frank to say, because the Solicitor said he would be on holiday then]. The Tribunal was then faced with the need to list as soon as possible and the fact that by your letter of 22 May applying for a postponement you had given a far too restricted period of availability. In the Chairman's view to indicate that the Respondent was only available for a hearing in the week commencing 14 July was unreasonable. Therefore the Chairman directed that the case should be listed at the Tribunal's convenience [the Tribunal's convenience] bearing in mind the need to hear a case of this sort expeditiously. [This from a Tribunal, which had just adjourned the matter, in response to the Solicitor's holiday]. The fact that you now offer two further dates 14 and 15 August does not alter that position.

Your request for a postponement is refused because it is necessary to hear this case without further delay and there is no reasonable prospect of listing on a date which is convenient to the parties and the Tribunal."

Then there was an appeal to the Tribunal, with substantial details, to reconsider the matter and it was pointed out that there had been no pre-listing procedure in this case and then the Chairman, having considered the matter, gave her reasons for the decision, dated 8 July 1997.

First of all, she set out the history of the matter (at page 9 of our bundle). She said, among other things, and this is the first time that it had been said, that the extension to 30 May was a mistake. If it was a mistake one would have thought the Tribunal would have written to say so and perhaps have offered an apology, none was offered:

"2. ... mistakenly stated that an extension of time to enter an appearance had been granted until 30 May. On 16 May a Notice of Hearing for 12 June was sent to both sides. On 20 May the Respondent entered an appearance alleging misconduct/capability as the reason for dismissal. There followed a dispute about whether or not the Notice of Appearance had been entered within time."

That was a strange thing to say. There was no dispute whatever, except that engendered by the Regional Office itself, who had said one thing to one party and another to the other party. It was the Regional Office which was saying, "Your Notice of Appearance is out of time"; when of course, that was not the case in any sense. So to describe it as a dispute is a strange way of speaking.

The Chairman goes on:

"In any event, the Respondent's representatives asked for a postponement by a letter of 22 May 1997. That letter said that the Respondent was not available for a hearing during June but confirmed that he would be available in the United Kingdom in the week beginning 14 July. Accordingly, a Chairman directed that the case should be listed for hearing during that week and the Regional Secretary wrote to the parties accordingly. Before the Notice of Hearing was sent the Applicant's representatives let the Tribunal know that the Applicant was not available during the week beginning 14 July [that is a direct misstatement. It has not been suggested today for one moment that the Applicant, the Respondent here, was not available during the week beginning 14 July]. For that reason the Chairman directed that the case should be heard on 23 July instead."

The Notice was not sent until 17 June. One would have thought that, if a change of mind was taking place, it would have been communicated immediately, but there it is. The fact is that if the Chairman was under the impression that the Applicant was unavailable during the week commencing 14 July, that was a complete misapprehension.

The Chairman goes on:

"By a letter of 20 June 1997 the Respondent's representatives wrote to the Tribunal Office asking for a postponement on the grounds that the Respondent would be abroad on business. They confirmed that he would be available for hearing on 14 and 15 August but that the position as to September was uncertain. I considered that request and instructed the Regional Secretary to write to the Respondent's solicitors as follows."

Then she read the letter, which I have read, which is at page 40. And then she sets out that further applications had been made.

"5. It is not accepted that this case was originally listed in error."

This from a Tribunal which had been under the impression apparently that the last date for the appearance was on 30 April. The Chairman goes on:

"There is no requirement to wait for a Notice of Appearance before listing and in many Regions the Notice of Hearing is sent when the Originating Application is served.

6. Under the Industrial Tribunals Rules of Procedure 1993, the date of hearing is a matter for the Regional Chairman. The Tribunal tries to accommodate parties when they tell us that they are unavailable on a particular date. What we cannot do is to list at the behest of one party who gives a narrow range of available dates. A party who does this risks the case being listed on a date which is genuinely inconvenient. It is no longer practicable to consult parties about convenient dates except in exceptional circumstances of which I consider this is not one.

7. I note all the Respondent's representatives urge as to the importance of the Respondent's evidence and I accept it. However, the Applicant strongly resists any further postponement for the reasons set out in his representative's letter of 2 July. ... In my view the Respondent should make himself available on the date listed and should give second place to his business commitments."

One notes what is said there. "It is no longer practicable to consult parties about convenient dates". This from a Chairman whose Tribunal had been bombarded with phone calls, because files were lost, because there were misapprehensions, and which writes letters saying different things to the parties. It is extraordinary that such a formalistic attitude should be taken when the Tribunal has been informed that one party is in genuine difficulties because of business commitments, and such a flexible attitude taken on the contrary when the other party says, "Well the Solicitor will be off on holiday that week".

It seems to us that this Appellant has not been treated justly. It is quite clearly very important to the Respondent that the Appellant should be there. It is vital to the Appellant that he should be there. Serious allegations are going to be made and they are either going to be proved or not proved. We certainly think that neither party here can escape criticism. It seems to us that each of the parties has shown a distinctly uncooperative attitude. If, indeed, there are difficulties over dates then the most elementary thing in the world, particularly if each party is anxious to get the matter on, is for one Solicitor to ring the other up straight away and say, "Can we agree a list of available dates and then we will send them straight through, as a joint request to the Industrial Tribunal". Why should that not have been done? - particularly when the Solicitor found himself in difficulties over his holiday - it would have been a most elementary thing to do and, faced with a joint request, no doubt the Tribunal would have, or might have taken a different view. But here we have first of all a whole series of difficulties created by misapprehensions and failures to reply to letters and finally, a deliberate fixing of a date, in the very near future, when it was known that one of the parties, in this very serious case, could not be present. It seems to us that that goes beyond the exercise of any fair discretion and so we have here a case in which neither parties is free from criticism, but the Tribunal itself, through its office, has really behaved in a most unsatisfactory way. No doubt there are great difficulties. We have every sympathy with Tribunals who are trying to fix their lists and arrange matters properly. We entirely accept that there have been very serious difficulties, much over-crowding of the Lists and many administrative difficulties in making sure that Tribunals can be kept properly and productively employed on cases and certainly, we want to say nothing to limit the discretion of Chairmen with regard to hearing dates. We think that the current Practice Direction is hardly likely to survive very long, bearing in mind the imperative need, which is seen by Lord Woolf and those who are apparently in agreement with him, the Lord Chancellor in particular, that there should be the frankest and most generous communication between courts of all sorts and those who appear before them, so that dates and other matters can be fixed by agreement wherever possible. All that is slightly beside the point. We consider that this was a purported exercise of discretion which is quite obviously flawed and we think we have no alternative, in elementary fairness, but to order that this date, 23 July, two days away, be vacated.

We propose to order the parties, subject to any further submissions made to us, immediately to set down every day in the near future which is convenient and to send that to the Regional Office forthwith so that a fresh date can be fixed when both parties can attend. If it should turn out that something absurd happens, such as the Appellant not being available this side of Christmas or something of that sort, then needless to say the Chairman will probably have to exercise his or her discretion again and fix a date, but nothing like that is suggested at the moment and for the reasons given, we feel that we must allow this appeal. Those are the reasons of us all.