United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR CHARLES SAMEK (of Counsel) Instructed by: Miss J Kohler Messrs Clarks Solicitors Great Western House Station Road Reading RG1 1SX
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE BYRT QC: This is a case in which the Employment Tribunal made a decision on 12th March 1999 in favour of the applicant to the effect that they found she had been unfairly dismissed and the subject of disability discrimination.

An appeal against that decision by the employers is to take place. They have now formulated the terms of their Notice of Appeal and everything is in line for a hearing. But the Chairman of the Tribunal has determined that the hearing on remedies should go ahead, notwithstanding the fact that that will lead to a decision on remedies prior to the hearing of the appeal. The employers appeal that interlocutory decision.

The Chairman has turned down the employers' application for an adjournment for a number of reasons. He mentioned that:

"The Tribunal has not been able to obtain any comments from the Applicant's Representative".

In fact a fax has been brought to us today indicating that the applicant does not oppose the application for the adjournment. The Chairman then goes on to say that he:

"has considered the circumstances and has decided against postponement".

He has not spelled out what the circumstances are; so we cannot judge him on that point. Then he says:

"The Applicant is entitled to an award".

The Applicant of course knows that, subject to appeal. The Chairman is right when he says that interest will run only form the determination of the award in her favour. However we have been given an undertaking by Counsel expressly instructed by the Respondents in this matter, to the effect that if the applicant is ultimately successful in obtaining an award, interest will run as from the date she would have been entitled to an award but for the fact of the appeal. The Chairman's decision ends by saying that:

"Knowledge of the award will enable the parties to judge the financial benefits of an appeal".

We think it is questionable whether it is the function of a Chairman, exercising his discretion in an interlocutory application to have such matters in mind at the time he makes his decision.

We have considered the merits of this matter ourselves. Firstly, we think we have heard sufficient from Mr Samek about the nature of the substantive grounds of appeal to take the view that there is a reasonable case to be argued. Secondly, we have had our attention drawn to the case of Buxton v Equinox Design Ltd [1999] IRLR 158, an authority which does not seem to have been drawn to the attention of the Chairman when he had to make his decision. The point made in that authority seems to be this: that where you have a claim relying on disability there is a strong argument that it should be then subject of direct judicial management. In a case of disability as opposed to a straightforward one of unfair dismissal, there are matters which need to be subject of direction, such as medical evidence, the submission of a statement of case, exchange of witness statements and so on, all of which are designed for the avoidance of one party or the other being taken by ambush. We think that is a consideration relevant to the question whether this hearing of remedies should be adjourned. There has as yet been no opportunity for judicial management in this case. There is a further peripheral point, because it is not really certain which way the benefit will lie, but if the appeal is successful an adjournment now that would save the costs of a remedies hearing.

In all, we think that there is an error of law, if it can be called that, in that the Chairman did not take into account the factors set out in the case of Buxton. I say it is an error of law, but it is one we can understand in view of the fact that he did not have the case drawn to his attention.

In all circumstances, therefore, we think it appropriate, on the strength of Counsel's undertaking relating to interest, that the appeal should be allowed.