At the Tribunal | |
Before
HIS HONOUR JUDGE H J BYRT QC
MS S R CORBY
MR D J HODGKINS CB
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | IN PERSON |
JUDGE JOHN BYRT QC: This is a preliminary hearing in the course of an appeal from the decision of the Industrial Tribunal sitting in Stratford. Its decision was promulgated on 8 December 1997 and by that decision it held that Mr Rance's claim against the Respondents of sex discrimination was dismissed and ordered him to pay £500 towards the costs of the Respondent on the grounds that his application was frivolous and vexatious. Mr Rance appeals that decision.
The facts quite shortly are that he was employed as a temporary clerical assistant by a firm called Hallmark Employment Agency and through that agency he had become engaged by the Respondents in their new business department. In that capacity he worked with them from August 1995 to about September 1996. He alleges that the Respondents then failed to give him a permanent job by reason of sex discrimination and accordingly, he issued an Originating Application alleging that offence.
On 20 August 1997 there was a directions hearing which Mr Rance himself attended and, in discussion with the Chairman, the issues which were to arise in the case were outlined (and I need not bother to go into them at this stage). Then there was a question of witness orders and Mr Rance requested that there be 16 witness orders issued for the purpose of the hearing. The Chairman allowed three.
In due course, on 9 September, the case was listed for a three-day hearing and the first day was to be 3 December 1997. Mr Rance was duly notified of that on 9 September. On the assumption that post works, he would have got that notice on or about 10 September. Thereafter, there was no problem until the Tribunal received two letters on 2 December. One was dated 29 November; the second letter was dated 1 December. I think it is fair to say that the first letter on 29 November was somewhat bizarre in its contents. It told the Tribunal that he, Mr Rance, had tried to get representation, but had been unsuccessful. He told the Tribunal that he had a fallback position, namely a friend of his, Daniel Hewitt, a trainee solicitor, who would be attending for the first day, but Mr Hewitt would not be able to attend the second and the third day because of his own commitments to study.
Mr Rance continued in the letter that he was confident his evidence and of his witnesses and the cross-examination of the Respondents' witnesses could be completed on that first day. As he would have only representation for the one day, he asked the Tribunal to allow his evidence to be given and his opportunity of cross-examining the Respondent witnesses on that first day. Then he told the Tribunal that the remaining two days could be taken up by the Respondents' evidence and their cross-examination of his witnesses. In the same letter he told the Tribunal that, since the directions hearing he had enrolled in a legal practice course as part of his training to become a solicitor. As a result, he requested leave of absence on the first day between 10 and 11 in the morning and 2 and 4 in the afternoon; so far as the second day was concerned, between 11 and 12 in the morning and 2 and 4 in the afternoon, and on the third day he asked for leave of absence between 10 and 12, indicating that he could attend in the afternoon of the last day.
Then there was the second letter which arrived. This again repeated that he was going to be unable to attend during the majority of the first and second day, but would attend on the afternoon of the last day. Accordingly, he invited the Tribunal to consider his case on the basis of his own written representations as he had put in a very detailed witness statement.
The Tribunal convened to hear the case on 3 December. Mr Rance himself did not attend but Mr Hewitt did and according to the extended reasons we have before us, Mr Hewitt indicated that he did not represent Mr Rance and that, indeed, Mr Rance had misrepresented him.
In accordance with Mr Rance's request, the Tribunal had a look at his witness statement to see the nature of the allegations being made. These are set out in paragraph 7 of the extended reasons and I will repeat what is said there:
"The Tribunal took note of Mr Rance's letter of 1 December asking us to deal with his evidence by his witness statement."
Then they noted on page 2 of the witness statement the following quotation:
"Helen Heaphy initially suggested that I should go out with her after work to a local singles bar.
Helen Heaphy stated that 'This was a place for people who are on their own and for those who are together'.
Helen Heaphy subsequently suggested that I should take her out for a meal and see a film at the cinema.
I ignored these sexual advances in the hope that they would cease.
As I have stated in the further particulars, these sexual advances were unwanted.
These sexual advances persisted and caused me personal offence.
Helen Heaphy's sexual advances were un-reciprocated and unwelcomed. I found her advances objectionable and offensive.
Helen Heaphy subsequently commented that the reason why I was rejecting her sexual advances was because I was too mean to take her out to dinner.
In fact the reason why I rejected her sexual advances was because I did not find her in any way attractive."
The Industrial Tribunal, having read that statement, decided that they were not prepared to deal with this case on the basis of his witness statement alone, that is without Mr Rance attending for the purposes of cross-examination. They took into account the fact that the allegation of sex discrimination against the Respondents was an important and serious allegation and further, they went on to consider what the future promised.
There was no indication whether Mr Rance would attend on the 4th and the 5th, or that he would be represented on those occasions. This was partly because on the first day Mr Rance's father had rung up saying that the Applicant would not be attending at all on the 3rd, that is the first day of the hearing. Mr Rance has told us that, in addition to his father ringing up, he himself had rung up on a mobile phone from the library in which he was working on his course, indicating that he had been able to arrange things in such a way that he would be able to attend on the second and the third day.
Nevertheless, there is a finding of the Industrial Tribunal to the effect that, at the start of this hearing on 3 December, they were left in the position that they had only one call through, namely from Mr Rance's father, and that gave no indication as to what was going to happen on the second and third day of the hearing, whether Mr Rance was going to attend or, indeed, whether he was going to be represented. They took the view that Mr Rance's suggestions as to how the procedures might be altered owing to his own personal difficulties, were wholly unrealistic and would give rise to a chaotic hearing. They also took account of the fact that Mr Rance had known since early September about the hearing date and they took the view that notification of this sort by the letters received on 2 December were wholly out of order and they took a serious view of it. They felt that Mr Rance's non-attendance, coupled together with confused messages that were coming through, were indicative of the contempt with which he treated the Tribunal. They referred also to the fact that Mr Rance had invited the Tribunal Chairman to put certain questions in cross-examination of the Respondents' witnesses. Mr Rance today has told us that he had merely asked Mr Hewitt a set of questions to put to them. Mr Hewitt passed them on to the Chairman. So he says that he meant no discourtesy in that request.
In any event, the Industrial Tribunal took the view that Mr Rance had wholly misconceived the importance and the nature of the case he had brought against the Respondents, that he had shown no proper appreciation of the way in which to treat the Tribunal, and accordingly, having considered the witness statement, as Mr Rance had invited them to do, they decided they were not prepared to continue with the case. Accordingly, they dismissed his claim, as they felt empowered to do, under Rule 9(3) of Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations 1993. That is a matter which was within their discretion.
Mr Rance has appealed to this Tribunal and it is for us to consider whether the Industrial Tribunal had exercised their discretion in a reasonable and judicial way. We have listened to what Mr Rance has had to say. It is at variance in some respects with the facts as found and recorded by the Industrial Tribunal, but we take what he said into account as well.
It is our view that the Industrial Tribunal were entitled to take the view that they did. It is not a question whether we, as a Tribunal, would have made the same decisions and pursued the same course as the Industrial Tribunal did. That is not a matter for us. We are not here to substitute our views for those of the Industrial Tribunal. The sole question we have to ask ourselves is whether on the facts as known to the Industrial Tribunal at the time, they acted reasonably or in accordance with a course which was reasonable.
There is no point of law as such arising, save that which would arise had the Industrial Tribunal behaved in a perverse way. We find it impossible to say that they did, and accordingly, this appeal must be dismissed.