United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MISS S MOOR (of Counsel) Instructed by: Mr R Power Head of Legal Services London Borough of Tower Hamlets Mulberry Place 5 Clove Crescent London E14 2BG


 


MR JUSTICE BURTON: This an appeal by Mr Ghosh against the order of the Employment Tribunal at Stratford, made on the fourth day of what turned out to be an abortive hearing, in December 1998, relating to his application against the Respondent, the London Borough of Tower Hamlets.

1. In those four days the Tribunal concluded that there was jurisdiction to consider the complaint of unfair dismissal, but in relation to the merits of the unfair dismissal claim it very soon became apparent to the Tribunal that Mr Ghosh was not in good health, and at the end of the first day, repeated at the beginning of the second day, the Chairman indicated his strong view that Mr Ghosh was not in a fit state to continue and ought to take medical advice rather than doing so. Those who were then representing Mr Ghosh, and in particular his friend Mr Dass, insisted that Mr Ghosh was fit to continue and rejected the Chairman's invitation to adjourn, saying that he had medical advice from Mr Ghosh's brother, and that the concerns of the Tribunal were misplaced. Mr Dass was not able to attend beyond the second day and he had Counsel standing by who took up the baton on the third day. At the outset of the fourth day that Counsel, Ms Moses, having herself concluded that the Chairman was right about the medical position of the Appellant, made an application to adjourn, to which, in the circumstances that I have indicated, it is not surprising that the Tribunal agreed.
2. The order that the Tribunal made had three aspects:

(1) that as the case was going to go off for some time, and as they were not satisfied that the Appellant had had been in sufficient health to have made his case out properly even in the period of time that the case had been before them, the new hearing, when it was restored, should start again from the beginning, rather than being an adjourned hearing;

(2) that before the hearing took place there should be a report from an independent medical practitioner sent to the Regional Secretary confirming that the Appellant was fully fit to present his case and undergo the stresses and strains inevitably involved in a hearing likely to take several days; and

(3) the Tribunal unanimously ordered that the costs of what it concluded had been a totally wasted hearing should be borne by Mr Ghosh. Clearly it appears from paragraphs 11 to 16 of the decision that they took the view that they had themselves initiated what should have been accepted, namely an adjournment at the end of the first day and that the rejection of that opportunity had led to the waste of time which had then followed.

3. This is an appeal by Mr Ghosh which on its face is an appeal both against the costs order and against the order that the hearing, when it restarts, starts again from the beginning.
4. The matter has come before us today and Miss Moor, on behalf of the Respondent, has indicated to us very helpfully, that so far as the costs order is concerned, the Respondent is prepared not to enforce it and in those circumstances we accept from the Respondent an undertaking in those terms.
5. That only leaves the question as to whether Mr Ghosh really wishes to pursue an appeal against the conclusion that there should be a rehearing rather than a simple adjournment of this hearing.
6. It was apparent from what Mr Ghosh told us, unrepresented today, that in fact he has been concerned that the case has still not come on for hearing, but it had to be explained to him that the very existence of this appeal is what has prevented the relisting of the hearing; because so long as there was an outstanding appeal against the order made, it would not be known whether the hearing when it restarted in front of the Employment Tribunal should or should not be an adjourned hearing or a restart. Now it is clear, as a result of today, what course will be taken.
7. There is, it seems to us, no ground for the challenge to the discretion of the Tribunal in concluding that the hearing, when it restarts, should be a recommencement of the hearing, and indeed, it is very much in the Appellant's interest that it should be so, quite apart from also being in the interest of the Respondent, of the Court itself and of the administration. There are a number of very obvious reasons:

(1) the very conclusion by the Tribunal that Mr Ghosh had not done himself justice in the few days that had elapsed so that he would be better served if he was given the opportunity to restart his case;

(2) the fact that everyone, including the Tribunal itself, will have forgotten the substance of the case if it simply starts again on the basis of its being the fourth day of a hearing, by then nearly two years, no doubt, since the hearing was adjourned; and

(3) it will be much more difficult to find the same members of the Tribunal available than simply to reconstitute either a new tribunal or the same one if that same one happens to be available.

For all those reasons, quite apart from the fact that we would not have been willing to have interfered with the discretion of the Tribunal in any event, this appeal is dismissed in relation to a challenge to the order for a restart of the hearing.

8. In those circumstances, the only other order that was made by the Tribunal is not challenged by Mr Ghosh and appears to us to be entirely sensible. The course that should therefore be taken is that this case should be relisted for a fresh hearing, on the basis of course that jurisdiction is established and that the only remaining issue is the substantive one, namely whether or not the Appellant has a claim based upon unfair dismissal and I am also told a claim in relation to promotion, the nature of which has not been fully explained to us. That should come on as soon as possible before the Employment Tribunal at a date to be fixed, the earliest possible one convenient to the parties, that is of course the convenience of the Respondent and its legal advisers, but also a date by which time Mr Ghosh can have found himself, as we very much hope he will, proper representation to put his case forward at the Tribunal. Three weeks before the date so fixed there should be lodged by Mr Ghosh with the Tribunal's Regional Secretary a fresh medical report showing that at that date he is fit, as the Tribunal put it, to present his case and undergo the stresses and strains of a lengthy hearing, prepared by either Dr Roy his general practitioner or another independent medical practitioner if Dr Roy is for some reason not available.
9. In those circumstances this appeal is dismissed.