United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MRS S MORRIS (Representative) Instructed by: Mr J M Stafford Senior Associate Aikin Driver Partnership 22 St Lukes Road London W11 1DP
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE LINDSAY: We have before us an interlocutory appeal concerned with a procedural matter.

On 14th January 1998 Mrs C Y Talton presented her IT1 for unfair constructive dismissal.

Her erstwhile employers against whom she complained were Stoke Rochford Management Ltd. Her employment ended on 14th December 1997. Her IT1 seems to have had attached to it, but they are poorly copied in the papers before us, some 1½ pages of close-typed material in which Mrs Talton purports to describe her dismissal. She had been Finance Manager of Stoke Rochford and also had been a service-licensee of some premises owned by that company.

With her IT1 she supplied also several letters and documents, some eleven or more separate documents. To take an important letter from amongst those supplied, looking now at page 26 of our bundle, in a letter of 2nd December 1997 she complained that the employer was in breach of an alleged implied term as to trust and respect, that her position with them had been undermined for a year or so, and that derogatory remarks had been made in relation to her and her family. She indicated in that letter that she regarded herself as constructively dismissed. The employer had answered denying constructive dismissal. That was the IT1 in January 1998.

By 5th February 1998 the employer's IT3 had asserted that Mrs Talton had resigned. The employer supplied 3¾ pages of typed explanation of why, in its view, that was so.

On 12th February 1998 a Chairman, not identified, in the Industrial Tribunal considered the file as it then stood and made certain directions. Those directions included that there should be a mutual exchange of witness statements not later than 14 days before the full hearing. In those directions it also said this:

"If any matter arises which may affect the likely length of the hearing, or if you consider that other interlocutory orders or directions are required in this case, you should contact the Tribunal in the next 14 days."

So there was a direction "mutual exchange of statements made by all witnesses ... by no later than 14 days before the first day of the full hearing".

On 17th March 1998 the employer wrote a letter that appears to suggest that in its view Mrs Talton should be relieved of the need to comply with the order for the exchange of witness statements on the grounds that she was not herself represented. The position has been throughout that the employer has been represented by solicitors whereas Mrs Talton has been in person. It is necessary to read the second paragraph of the letter, which is at page 11 of our bundle. It says this:

"Whilst writing, the Tribunal has issued directions on witness statements being exchanged 14 days in advance but the applicant is unrepresented and we feel that it would be unreasonable to force her to comply with this order. We shall be grateful if the Tribunal can set aside this specific direction."

It would seem to us, and it certainly must have seemed so to the Industrial Tribunal, that on a fair reading of that it was only the obligation upon Mrs Talton that was the specific direction that was sought to be relieved, and it was sought to be relieved on the ground that she, the applicant, was unrepresented.

Mrs Morris who appears for Stoke Rochford before us today says that was never intended.

Also in that letter an adjournment was asked for. The employers said:

"We shall be grateful for your confirmation that the Tribunal is postponed and clarification of the Tribunal's directions."

We do not think it can be said that the Industrial Tribunal was wrong to have understood the paragraph in that letter as being that it was Mrs Talton alone who was to be relieved from the obligation otherwise existing under the directions. It seems that at some date, presumably in March, and acting on what it took to be the employer's request to relieve Mrs Talton, that the Industrial Tribunal did so relieve her. It is an awkwardness in the case that we have no formal decision on that point, nor any date for it, nor any date for its promulgation to the parties. But it seems to be common ground that there was, what we might call, a "relieving order" that relieved only Mrs Talton from compliance with the earlier order for directions. That, as it would seem, was in March, following what was understood by the Industrial Tribunal to be a request of 17th March by the employer itself.

On 21st April 1998 (although this is unseen by us) the employer apparently queried the relieving order.

On 23rd April 1998 the Industrial Tribunal wrote (at page 7 of our bundle):

"A Chairman of the Tribunals has noted its contents and has directed me to reply that the directions given by the Tribunal were varied at your request (dated 17 March 1998). The Respondent is required to exchange witness statements with the Applicant 14 days before the Hearing date but there is no similar requirement for the Applicant."

The Industrial Tribunal also advised that the hearing date of 18th May would proceed. They went on to say:

"The Hearing on 18 May 1998 will proceed and a further day will be arranged if necessary. The Chairman is concerned that the Respondent may be delaying the Hearing. The previous date was postponed at the Respondent's request because the Tribunal accepted that the reason given was important and valid. ..."

On 27th April 1998 the employer indicated to the Industrial Tribunal that the relief of Mrs Talton, which would have seemed something which the employer had itself requested, was now going to be appealed against. What the employer says in that letter is:

"Further to the Tribunal's order that only the Respondent produce all their witness statements to the Applicant 14 days in advance of the hearing, we are formally applying for this order to be set aside.

...

For the Applicant to have the Respondent's witness statements without any corresponding exchange of her own statement and the statements of her witnesses will put the Respondent at a considerable disadvantage. The Applicant would have 14 days to prepare her case based on the Respondent's witness statements and this will not be in the interests of justice. As the Respondent did not dismiss the applicant then it must be for the Applicant to make her own case based on its own facts which caused her to resign."

It seems from that letter that the employer did not oppose a simultaneous or mutual exchange. They went on:

"In the alternative we would have no objection to a mutual exchange of witness statements, in which case we would ask that the same order is put on the Applicant as the Respondents.

...

We shall be grateful if you will let us have the Chairman's decision by fax."

Unseen by us (but it would seem to be the case) on 28th April the Industrial Tribunal indicated that it refused to set aside the relieving order, as we have called it.

On 29th April 1998 the employer's solicitors asked that the anonymous Chairman who had decided not to change the relieving order (or perhaps it was the one who had made it in the first place) should give his or her reasons for the decision.

On 30th April 1998 the Industrial Tribunal told the employers that the Registrar of the Employment Appeal Tribunal would decide whether extended reasons for the orders would be necessary.

On 30th April 1998 the employer appealed against the direction relieving Mrs Talton.

It is difficult for us to know whether that was in time or not because we do not know the date of the order against which the appeal is made, nor the date on which it is promulgated, but we shall certainly not assume that the Notice of Appeal was out of time.

On 6th May 1998 Mrs Talton learned of that Notice of Appeal and very late that day she completed an answer to the Notice of Appeal and she takes a number of points in her paragraph 5. She says that the employer specifically requested that the tribunal should aside the original direction. She said that she is unrepresented and has not got legal advice and she feels that she would be greatly disadvantaged if she was not allowed additional time to investigate the employer's witness statements and then prepare hers. She says that her husband has contacted the solicitor acting for the employer and has confirmed with them that they have no witness statements ready for exchange. She complains that for the fourth time the employer is seeking to have the matter adjourned. That broadly speaking, summarises what she has to say on the point.

Mrs Morris tells us that witness statements, at any rate from the employer, could be ready within a reasonable period of time. But we have to bear in mind that there are now only two working days before the schedule full hearing on 18th May 1998, and yet no witness statements supplied by either side have been exchanged. So far as Mrs Talton is concerned, to judge from the way she expresses herself, hers are not ready either. She does not appear before us, nor is represented, and, beyond the comments we have mentioned, we have nothing further from her.

If it is sensible at all - and we certainly do not say that it is not sensible - but if it is sensible at all to have witness statements and to have them exchanged, it seems now that they cannot usefully be exchanged in time for the hearing on 18th May 1998 (which is next Monday, this hearing midday Wednesday).

If the parties were to proceed to a hearing on 18th May without there having been any form of exchange of witness statements, that seems to us to be likely to be a recipe for confusion and for further delay because what is highly likely if that occurs is that one or other side or both will claim to have been taken by surprise by the case advanced by the other and will ask for an adjournment for evidence. The matter, instead of being capable of being dealt with on full evidence at one hearing, would then be likely to be spread over a number of separate occasions which will not only delay eventual conclusion of the matter, but will increase the cost.

It seems to us that the hearing of 18th May 1998, in practical terms, regretfully now has to be abandoned. But that still leaves the question of what to do about witness statements; should they be exchanged? That we think is a desirable step to avoid confusion and delay. And if they are, therefore, to be exchanged, should be it be simultaneously or sequentially?

There is nothing inherently improper or unjust about a sequential exchange. It has been the practice of the Courts for years to require evidence-in-chief, evidence-in-answer and evidence-in-reply in sequence. Notice, though, that when there is a sequential exchange, he who goes first is usually the person on whom the burden of proof lies, but also is given the right of reply. The last word is a valuable right which offsets, perhaps, a disadvantage, if any, inherent in having to go first.

Now here, it does seem to us, that there is some sense in the employer going first. The employer has legal advisers who will be far better able than Mrs Talton, who is in person, to identify what should be material issues relative to the case of constructive dismissal, and will be able, having identified those issues, then to address them and to set them out clearly and perhaps by numbered paragraphs.

It also has to be borne in mind that although Mrs Morris says that the letter and request was not intended to have the consequence that it did, the language of the paragraph which we read out does seem to suggest a recognition in the employer that Mrs Talton would have difficulty in preparing a witness statement and that it would be at least appropriate that she be relieved of the obligation, be it the obligation to go first or the obligation to produce the witness statements at all. If the employers go first, then they have a good case, in our view, to be able also to go last, to redress an imbalance that might be inherent, if any, in their being required to go first.

We recognise that it is an unusual provision that the person on whom the onus of proof lies should not go first but we do have in mind that Mrs Talton, as is recognised by the employer, is unrepresented, whereas the employer is represented.

On balance, in this procedural matter we see the appropriate course to be this. We set aside the hearing of 18th May 1998 for the reasons we have given. We direct that the respondent employer is to serve witness statements as to every witness whom it intends to call at the hearing and to serve also witness statements in respect of every witness whose evidence is intended merely to be read at the hearing by the expiry of 14 days from today. Given that the parties should have been arranging for an effective hearing on 18th May 1998 we see that a direction giving 14 days to the employer cannot possibly be criticised as being unreasonably short.

Mrs Talton is to have 14 days from the date of her receipt of the employer's witness statements in order to serve hers.

The employer is then to have seven days thereafter to serve any witness statements material to what are truly issues in reply (our emphasis). That third batch of witness statements, if there is any, should deal with points put in by Mrs Talton and not previously covered sufficiently by the employer. The ability to reply is not carte blanche to raise wholly extraneous matters not touched on before unless they are truly in reply to what has been put in previously.

On that basis, we would adjourn the substantive hearing of the case to be not earlier than six weeks from today. That provides that even if the evidence is served in each case on the last of the appropriate days, there will still be a short interval between the completion of and receipt of witness statements and the hearing itself. It is to be hoped that in that valuable window the parties will consider just how to proceed with their cases.

That, it seems to us, is a proposal which is not unfair; which recognises the difficulty that Mrs Talton might have in going first unaided, but which compensates the respondent employer for the unusual requirement that, although the onus is on the other side, it is the employer that goes first by giving it what could be a valuable right of reply.

Accordingly, that is the direction that we give.