United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JACQUES ALGAZY (of Counsel) Instructed by: Ms A Williams Messrs Eversheds Solicitors Fitzalan House Fitzalan Road Cardiff CF2 1XZ
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal. It is against a refusal of an Employment Tribunal to postpone the resumed hearing of a complaint of unlawful discrimination which Ms Thomson has brought against Panasonic Business Systems Sales Ltd, the employers.

1. The case has started in the Employment Tribunal and as I understand it, two days of evidence have been given and the Applicant has concluded her case. The Tribunal was concerned to fix further dates for the hearing and initially suggested that the hearing should be listed for 8 and 9 June pointing out that unfortunately 8 June had to be vacated due to a conference, but that the case would resume in any event on 9 June, but that they needed to secure another day (it was contemplated that only two days would be required) during the months listed below - and they set them out June, July, September and October - and the parties were invited to respond within seven days.
2. The solicitors acting for the employers suggested that it would not be sensible for 9 June to go ahead because it would just mean one day when in their view, an alternative three days was required, not just two days but three days. In any event they put forward dates to avoid which included 8 and 9 June. What the letter said on 30 April was June 1-11, 17, 24-13 July, and underneath that, July 9-16 and 30. These were the dates to avoid in the relevant period. It is apparent from reading that document that the dates had been misstated because it can not have been the intention to include under the June heading dates which related to July, particularly where under the July heading those dates were already covered to some extent.
3. Not surprisingly therefore, a corrective letter was sent by Eversheds on 12 May 1999 referring to their letter of 30 April and saying; "Please note the dates for June are as follows", and exactly the same June dates are given save that for 24-13 July is substituted 24 to 31. June of course only has 30 days. But it seems to us very clear, as it obviously did to the Employment Tribunal, that Eversheds were asking the Tribunal to avoid the period from 24 to end of June and 1-11 June and 17 June and 9-16 of July and 30 July. On that basis the Tribunal fixed the two days having acceded to Eversheds view that there was no point in going on on 9 June, for 6 and 7 of July.
4. There was then a letter from Eversheds on 18 May in response to the Notice of Hearing which was dated 14 May, saying that the letter of 12 May was sent in error and that the previous letter dated 30 April 1999 is

"…numerically correct. May we apologise for this error and accordingly request that the Tribunal re-list the case avoiding the following dates: "

and then it sets them out as June 1-11, 17, 24-31 – it being apparent that the author of these letters did indeed believe that June had 31 days – and in relation to July, instead of it being 9-16 July, they now say 1-16 and 30 July. Otherwise the dates remained the same. So they respectfully requested that the case be re-listed on the grounds that it is part heard and that on 6 and 7 July 1999 the representative for the Respondent's will be overseas and therefore unable to attend.

5. There was then a further letter of 20 May and they pointed out that whilst they accepted that there was some confusion in their original letter of 30 April, they wanted:

"…to point out that the first line of entries against June, did clearly state that the Respondent (both witnesses and advocate) were unavailable from 24 June to 13 July. That was clarified, more recently, in our letter of 18 May.

The Respondent's Representative has already committed herself to an overseas holiday for a period of two weeks, which cannot be cancelled at this stage without severe financial loss."

The Tribunal considered that together with the response on behalf of the individual employee and ruled as follows on 27 May:

"The case was relisted on the information provided by the parties' representative and the Chairman is not willing now to postpone and cause further delay. This is particularly so because a postponement to the autumn is strongly opposed by the Applicant. The Respondent's representative must make herself available."

Prior to that ruling the letter indicates that a Chairman had considered carefully all that was said and has balanced that, that is the request for the adjournment against the desirability of bringing this case to a hearing without delaying.

6. In support of the appeal the employers have relied on an affidavit sworn by the partner of Eversheds who has been dealing with this case as an advocate representative in the Employment Tribunal. It is regrettable that this affidavit does not properly address the question of her holiday stating when it was organised, why it is not possible to perhaps return for two days (we are not told what the destination is in the affidavit), we are not told what the size of the financial consequence is and matters of that kind. Nor does the affidavit adequately address as it seems to us the confusion that has arisen in the correspondence nor does it give any indication as to why it was that in the correspondence Eversheds had also been relying, as we understand it, on the absence of the Respondent's witnesses as being a ground for postponement. But be that as it may, we have been told by Counsel to whom we are grateful Mr Algazy, that it is a long trip which they are making he deduces, because he has been told that several thousand pounds were invested in the holiday booked through Thomas Cook in, we are told, January of this year.
7. The question as to whether a case should or should not be postponed from a fixture fixed by the Court is always extremely difficult and involves a careful balancing of the interests of justice. It is clear that in a case of this sort, that is a case of alleged sex discrimination, it is likely that the Applicant will find the process of the litigation itself daunting, if not damaging to her morale. Equally the employer's witnesses themselves will feel concern at the Tribunal process and the interest of justice generally require that cases of this sort should be heard and determined as soon as practicable but consistent with the interest of justice.
8. Mr Algazy says to us that it is clear, he says, from the correspondence that the Tribunal itself is contemplating that the case might have to be resumed as late as October and that in reality what they have done is to impose a penalty on the solicitors for the Respondent's and thus on the employers themselves, which is disproportionate having regard to the fact that the case might in any event have had to have re-started in October, even if no mistake had been made: disproportionate having regard to the prompt of responses of Messrs Eversheds.
9. We see the force of those submissions but would not regard what the Tribunal has done or proported to do as being the imposition of a penalty. It is quite clear that they were not prepared to tolerate the possibility that their case would have to be resumed at some later date into the autumn. They carried out a balancing exercise in the interests of justice and the question is whether it can be said that that balance was struck in a way with which we can interfere. Was it was perverse?
10. Of course it is important that there should be continuity of the advocates and that is a factor that weighs heavily in the balance in the favour of postponement. But of course, the advocate will have access to the notes which will have been made, as competent solicitors, of the evidence which has been given. It will not be impossible for a new advocate from the firm to be properly briefed as to what has happened previously and to resume the case on behalf of the Respondents.
11. We do not know, whether it may be possible for the person concerned, Ms Williams, to come back from her holiday or postpone her holiday for a few days, in order to enable her to be at the Tribunal. But we are satisfied that the Tribunal's decision cannot be said to be one which no reasonable Chairman could have arrived at in the circumstances.
12. Accordingly, we will dismiss this appeal, confident that in the end the employers will be properly represented at the resumed hearing on 6 and 7 July. The Respondent to this appeal, that is the employee, did not appear but we have obviously taken into account what is said in the Respondent's answer, which makes the point that there was a balancing act to be carried out by the Chairman and their submission that the balancing act had been carried out in a way which we couldn't interfere with. We agree with that submission - the appeal will be dismissed.