United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M HEGARTY (Representative)
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against an interlocutory decision of a Chairman sitting alone. The issue on this appeal relates to the hearing date.

The appellant is the applicant before the Industrial Tribunal. She was employed by the respondents to this appeal and the respondents to the application, the British Land Co. Plc. She was employed as a secretary and worked there for approximately nine months. She lost her job in January 1998 having previously been suspended, and within days of losing her employment presented her application to the Industrial Tribunal on 9th January 1998 alleging sexual harassment.

The employers filed their answer around 17th February 1998. There was then a directions hearing which took place on 23rd April when various orders were made including the fixing of the hearing for five days starting on 27th July 1998. The order, which is contained in a letter from an officer employed by the Employment Tribunal Service, and not signed by the Chairman, says this:

"The parties must note that is a fixed date and that a postponement will not be granted save in exceptional and unforeseen circumstances."

Miss Cusack was represented by a solicitor at that directions hearing, neither she nor her trade union officer being able to attend. She has been represented on this appeal by her trade union representative.

The position is this, Miss Cusack informed her union on 5th February that she had been offered a teaching post abroad. It is a job teaching English as a foreign language in Japan. It is a post which is of 12 months duration and is due to start very shortly on 19th May 1998. Having told her union that she had had this offer and that she would be leaving at the end of May, the union advised her, very sensibly, that the Industrial Tribunal would either be able to give her a date before she left the country, or her reasonable requirements for an adjournment would be met.

The employers were informed of her commitments but they indicated that they were not in a position to meet a trial date before 19th May, and said that they had a large number of witnesses whom they wished to call, some eight in all, which would mean that there would have to be a five day hearing of the case.

As we understand the position, these facts were put before the Industrial Tribunal Chairman on 23rd April 1998. Despite what was said, the Chairman fixed the case for a time when she knew that the applicant would be in Japan. It was made plain to her, so we understand, that the applicant would be able to come back to this country for the hearing in December 1998 because under her contract she is entitled to some leave after she has served a period of six months.

It seems to us that it was unjust to fix a hearing date for a time which the applicant could not manage. Whilst the decision as to whether to grant an adjournment is always difficult, bearing in mind the conflicting interests, we have no hesitation in saying in this case that the learned Chairman has reached a decision which was so unreasonable as to be characterised as perverse. There is no particular prejudice asserted by the employers, save for the obvious and important one that through the passage of time memories may dim. But as we understand it, they have either obtained witness statements already or are in the process of obtaining them, and balancing the interests of the parties, it seems to us that the only fair conclusion is that this serious complaint should be aired before the Industrial Tribunal. The consequence of the order made by the tribunal will be to deprive Miss Cusack of the opportunity of advancing her complaint. That is, in the circumstances, not just. Throughout, the Industrial Tribunal and the respondents have been kept fully informed about her commitments, and it seems to us that reasonable flexibility requires that her reasonable requests should be accommodated. Accordingly this appeal will be allowed and we direct that the hearing, which has been fixed for 27th July 1998 does not take place, but a further hearing date is fixed in consultation with the parties so as to accommodate their reasonable requirements.

In arriving at our conclusion on this appeal, we have taken into account the points made by the employers in writing in their response to this appeal.