United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the 1st Respondent For the 2nd Respondent	MS N JOFFE (Of Counsel) Messrs Cole & Cole Solicitors Buxton Court 3 West Way Oxford OX2 OSZ MR D BAIN Citizens Advice Bureau 95 St Aldates Oxford OX1 1DA


 


JUDGE CLARK: This is an Interlocutory appeal by the Applicant, Miss Bonna, before the Reading Industrial Tribunal against an order of a Chairman dated 29 January 1998, refusing her application for a postponement of the substantive hearing of her consolidated complaints of race discrimination brought against her employer, the first Respondent Council, and, in the case of her first complaint only, also against the second Respondent, Councillor Roberts. That hearing is presently fixed for 23 - 27 February 1998. A further application to the Regional Chairman was also refused by letter dated 30 January.

The Appellant is a qualified Solicitor. She is, and was at all material times, employed by the first Respondent as a Senior Assistant Solicitor. She is black and of Nigerian racial origin.

Her first complaint, presented on 30 November 1995, related to an incident on 5 September 1995, when she gave certain legal advice at a meeting of the first Respondent's Housing Committee chaired by the second Respondent. It is her case that she gave correct legal advice which was rejected by the second Respondent in circumstances, she contends, which would not have arisen had the advice been given by a white lawyer.

Since her first complaint she has made four further separate complaints against the first Respondent only and in further and better particulars of those complaints, she raises matters going back to the commencement of her employment with the first Respondent in December 1993.

Despite opposition by the second Respondent, a Chairman directed that all five complaints be consolidated and heard together. That order was made on 23 June 1997. Progress in the case has been slow. The Appellant has applied for and been granted extensions of time in order to provide further and better particulars; serve a questionnaire and to give discovery. Attempts to fix the substantive hearing in September 1997 foundered due to witness problems experienced by the first Respondent at that time. Finally, the current hearing dates were fixed as long ago as 13 August 1997.

Unhappily, the Appellant's mother-in-law died in Nigeria on about 14 January 1998 following a short illness. Apart from her natural and understandable grief at this bereavement, the Appellant has explained that it is part of her Nigerian culture that she is treated as the daughter of her mother-in-law. She has various responsibilities as part of the mourning process. She was due to fly to Nigeria on 3 February and was unsure when she would return. Upon her return she will be attending to matters connected with the death in this country. She points out that although a qualified Solicitor, she is acting in person in what will be a complex case. It is in these circumstances that she applied for the postponement.

The application is and was opposed. Both Respondents are anxious to get on with the case, which concerns events stretching back to the beginning of the Appellant's employment. In particular, the second Respondent is anxious to have the opportunity to clear her name of this grave charge of racial discrimination. Apart from being a local Councillor of some fifteen years standing, she is employed as an Advice Worker in a multi-racial area; her health has suffered over the last two years; a further postponement will cause her further hardship.

It was for the duty Chairman to balance these competing considerations and exercise his discretion for or against granting a postponement. He set out his reasoning and conclusion in a letter to the Appellant dated 29 January 1998 in these terms:

"The Chairman has looked at your latest letter and reviewed the file. He accepts that this is the first request for a postponement that you have made. Nevertheless, there have been many stages at which there has been delay attributable to you. This has been caused mainly, if not wholly, by your health problems and/or pregnancy. The Chairman does not criticise you for this, but he is concerned at the very great delay which has already occurred and the further delay - the Chairman suspects four to six months - which will result if he grants a postponement. The allegations go back as far as early September 1995 and are already about two and a half years old.

The Chairman has sympathy for you and accepts that you come from a different cultural background having different cultural values. You do not say that you cannot attend, but that the hearing is due to take place at a stage when you would normally expect to be occupied with important family matters. The Chairman accepts that bereavements cannot normally be predicted in advance and may, as here, risk the disruption of long planned events. However, you are a qualified solicitor and ought to be able to bring a more professional approach to the matter than a lay person.

The Chairman also bears in mind the interests of the respondent who will be anxious to have this very old matter resolved one way or the other.

The Chairman remains of the view that, on balance, the hearing should go ahead. The postponement request is therefore refused."

The Appellant has not appeared this morning. We assume that she is currently abroad. In these circumstances we have considered the appeal on the basis of the Appellant's written Notice of Appeal and the submissions of Ms Joffe on behalf of the first Respondent supported by Mr Bain on behalf of the second Respondent.

Ms Joffe reminds us that we have jurisdiction to interfere with an Interlocutory order of an Industrial Tribunal only where an error of law is first made out. That means, in the circumstances of this case, that the Chairman has taken into account an irrelevant factor; failed to take into account a relevant factor, or otherwise reached a perverse decision. (See Carter v Credit Change Ltd [1979] IRLR 361.

In this case it is quite clear to us that the Chairman took into account the relevant factors going both ways. He reached a permissible conclusion on the material before him, which did not include the letter from the Appellant's General Practitioner, Dr A K Singh, dated 2 February 1998. In these circumstances we can see no grounds for interfering with this order. The appeal is dismissed. The Industrial Tribunal hearing will proceed on 23 February.

Following our judgment given in this case, the Respondents and each of them make application for their costs in the appeal.

Ms Joffe submits that the Notice of Appeal discloses no arguable point of law. We agree. That in bringing and conducting this appeal the Appellant has acted unreasonably within the meaning of Rule 34(1) of the EAT Rules 1993. Again we accept that submission. It follows that this is a case in which an award may be made in principle.

We take into account that the Appellant is a qualified Solicitor, earning in excess of £26,000 p.a. In these circumstances, having been invited to assess costs, we shall award the sum of £75 costs in favour of each Respondent, a total of £150 to be paid by the Appellant.