United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NEITHER PRESENT NOR ATTENDING
For the Respondent	MISS SARAH MOOR (Of Counsel) Instructed by Messrs Thompsons Congress House Great Russell Street London WC1B 3LW


 


JUDGE D LEVY

1. This Appeal is an interlocutory appeal by John Menzies Ltd, ("the Appellant") in proceedings against an order made in an Employment Tribunal following proceedings commenced by Mr A B Durrant, ("the Respondent")
2. The brief chronology is as follows. On 24 August 1999 the Respondent was dismissed by the Appellant. He made a complaint to an Employment Tribunal on 9 November 1999 which led to a hearing on 15 and16 March 2000. On 23 August the Employment Tribunal gave Extended Reasons, which we have not seen them, but because the Appellant appeals we understand that the Respondent succeeded. On 29 September 2000 the Appellant sent to this court a Notice of Appeal against that decision. On 2 October 2000 this Tribunal informed the Appellant that it was to be set down for preliminary hearing. On 8 November 2000 the Employment Tribunal gave notice that there was to be a remedy hearing on 8 December 2000. That is on Friday. On 9 November 2000 the Appellant requested postponement of the remedy hearing on the grounds that 'it should not take place whilst the case is under the remit of the Employment Appeal Tribunal' and that if the appeal succeeded unnecessary costs would be incurred. On 24 November 2000 the Employment Tribunal directed that the remedy hearing should stand as listed. On 27 November 2000 the Appellant appealed against the decision not to postpone the remedy hearing. That is the appeal which is before us today.
3. The Appellant's solicitors have sent to the court a list of authorities and written submissions on behalf of the Appellant in relation to this appeal. It was received on 4 December 2000 although it was dated 1 December and the fax mark show that it was despatched on 4 December at (I think) 17.00 hours.
4. Miss Moor appears for the Respondent to the appeal to oppose the appeal. The written submissions refer us to the decisions in Medallion Holidays Ltd v Birch [1985] IRLR 406 and Noorami v Merseyside [1999] IRLR 184. The written submissions refer us to a paragraph 409(C) in the Medallion Holiday case. We suspect that this a reference to paragraph 12 of that decision. It was a decision given by a Tribunal headed by Mr Justice Waite. At paragraph 12 there is this set out:

"We therefore reject the argument that the Employment Appeal Tribunal has power to review the interlocutory decisions of the Industrial Tribunals upon their merits, regardless of whether any error of law is involved. Interlocutory directions on matters such as discovery or the granting or refusal of an adjournment or the striking-out of an originating application or notice of appearance or any part thereof are wholly within the discretion of the Industrial Tribunal. It is a discretion with whose exercise we have no jurisdiction to interfere unless it can be shown to have been contrary to some established principle of law or to have involved a result at which no reasonable Tribunal exercising the same discretion could have arrived."

5. We think that states the law as it still is. There is a reference further on to decisions are challengeable only on Wednesbury grounds or when the conclusion reached was outside the generous ambit within which reasonable disagreement is possible. At paragraph 6 of the Appellant's written submissions, there is then this remarkable paragraph:

"The Employment Appeal Tribunal is a superior court of record under the terms of The Employment Tribunals Act 1996 Section 20(3). It is our submission that while its decision is under Appeal the Employment Tribunal has no locus to deal with the claim in any way and that would extend to the fixing of a remedy hearing. The matter in its entirety becomes a matter for the Employment Appeal Tribunal and the role of the Employment Tribunal is exhausted while the matter is before the EAT. That is a fundamental principle in relation to any appeal process. The Appellant seeks to set aside the decision of the Employment Tribunal."

6. There is no authority for that bold submission and it is not supported by authority or principle, as Miss Moor has submitted to us, in our judgment. It is within all our experience that remedy hearings in small case such as this have been held whilst there is an appeal still extant from the Employment Tribunal to this court.
7. We can see no error of law by the Tribunal in insisting that the remedy hearing should take place tomorrow. We accept the submissions of Miss Moor, both oral and written, that that is indeed a proper route for it to take in this case. In the circumstances we dismiss this appeal.
8. At the conclusion of the appeal Miss Moor has sought costs. She has drawn our attention to the Employment Appeal Tribunal rules 1993 rule 34 which gives us authority to order costs where proceedings were unnecessary, improper or vexatious or other unreasonable conduct in bringing or conducting the proceedings.
9. In such circumstances we may order the party at fault to pay any other party the whole or such part of its costs or expenses incurred by that other party in connection with the proceedings and sub paragraph 2 of the rule states where an order is made under paragraph 1 of this rule the Appeal Tribunal may assess the sum to be paid or may direct it to be assessed by the Taxing Officer from whose decision the appeal should lie to a judge.
10. In this case this seems to be an appeal brought without any principle behind it, having regard to the fact as we have said in our earlier judgment that are often remedy hearings in small case as such as this while there is appeal against the main decision pending.
11. There was a further complaint made by Miss Moor namely this: Not until the Respondent's appeal was called on to be heard did she learn that the Appellant would not appear on the appeal and intended to rely on the written submissions sent to court, incidentally only received this morning. If the Respondent had known that the Appellant intended to rely on oral submissions, it is at least possible that the Respondent would not have appeared at the hearing.
12. In our judgment this was an unnecessary appeal. It was not only discourteous but almost perhaps improper for the Appellant not to inform the Respondent that it was not going to attend or be represented at the hearing of its appeal.
13. The costs which had been sought are in the sum of £450. We think it appropriate to assess costs in that sum and order that they be paid by the Appellant to the Respondent.