United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS E DIXON (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR J DONOVAN (of Counsel) Messrs Russell Jones and Walker Solicitors Swinton House 324 Grays Inn Road London WC1X 8DH


 


JUDGE PETER CLARK: This is an appeal by the respondents before the London (South) Employment Tribunal, HM Prison Service and Mr Narey, against an interlocutory order made by a Chairman and sent to the parties on 3rd July 2000, refusing the respondents' application for a postponement of the substantive hearing of this case, which we shall call No.3, fixed for 25th September to 13th October 2000.

Background

1. The applicant is a career officer holding a senior position in the Prison Service, or was until her demotion. Her employment began in December 1977 and at all relevant times she was Principal Officer at HM Prison Wandsworth.
2. In October 1998 she presented her first originating application to the Employment Tribunal (No. 1) alleging sex discrimination and victimisation by the Prison Service and Governor of Wandsworth, Mr Knight. On 6th December 1998 she presented a second originating application (No. 2) against the same respondents alleging that the investigation by the Prison Service into complaints against her of sexual harassment by junior members of staff itself amounted to unlawful sex discrimination.
3. At a directions hearing held on 15th July 1999 the two complaints were consolidated and listed for a 15-day hearing commencing on 10th January 2000.
4. On 6th December 1999 the respondents were served with the present originating application (No. 3) alleging sex discrimination and victimisation against the Prison Service and Mr Narey, Director-General of the Prison Service, arising out of disciplinary proceedings taken against her, resulting in her demotion. She has been on "garden leave" since September 1999.
5. On 4th January 2000 the respondents applied for all three cases to be consolidated and the hearing date fixed for 10th January to be vacated. That application was refused and cases No. 1 and 2 were heard between 10th and 28th January 2000 by an Employment Tribunal chaired by Mr John Warren. The tribunal's decision was reserved.
6. On 27th January the tribunal gave directions in No. 3. In particular, it was then agreed between the parties that the substantive hearing of No. 3 would take place before the same Employment Tribunal over 15 days commencing on 25th September 2000.
7. Those directions were confirmed, with modifications, in a letter from the Employment Tribunal dated simply March 2000 but received by the respondents' solicitors on 29th March. Although variations to the timetable agreed on 27th January 2000 were envisaged, it was made clear that the substantive hearing fixed for 25th September would not be moved. The parties were to ensure that they would be ready to proceed on that date and so far as we are aware they are so prepared.
8. On 5th May 2000 the Warren tribunal promulgated their decision with extended written reasons in Nos. 1 and 2. The applicant's complaints were upheld in part.
9. Against that decision the respondents entered a Notice of Appeal to the EAT dated 1st June 2000. That appeal has been permitted to proceed to a full hearing by the Registrar without the need for a preliminary hearing. It is, we understand, unlikely to be listed for hearing at the EAT before December 2000 and may not be heard until the New Year.
10. On 12th June the Treasury Solicitor acting on behalf of the respondents wrote to the Employment Tribunal requesting a postponement of the hearing of No. 3, due to take place before the Warren tribunal commencing on 25th September 2000, until after the EAT has heard and determined the appeal in Nos. 1 and 2. That application was opposed by solicitors for the applicant by letter dated 15th June, to which the Treasury Solicitor responded by letter of 16th June.
11. On 3rd July the Chairman directed that the hearing of No. 3 should proceed on 25th September. Although not identified, we infer that that Chairman was Mr Warren. Against that order this appeal is brought.

The Appeal

12. It is common ground between Counsel that our powers to interfere with an interlocutory order, here refusing a postponement under Rule 13(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, are limited to correcting errors of law. We do not have a general power of review, exercising our own discretion. See Bastick v Lane [1979] ICR 778, 782 per Arnold J, approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908, 918, per Stephenson LJ.
13. The question for us is whether the Chairman reached a conclusion which is Wednesbury unreasonable.
14. It seems to us that the Chairman was faced with two powerful conflicting factors; for the respondents it was said that, given the appeal against Nos. 1 and 2 is to proceed to a full hearing, and given the findings of the Warren tribunal in their original decision, if the applicant succeeds before that Employment Tribunal on No. 3, based on earlier findings by the tribunal, then a further appeal is inevitable. If the first appeal succeeds so too will any appeal against an adverse decision on No. 3. The probable outcome will then be remission of all three cases to a fresh Employment Tribunal. In that event the costs and time incurred by the hearing fixed for 25th September to 13th October will have been wasted for both sides, as will have been the time of the tribunal hearing No. 3.
15. On the other hand the applicant's health, she says, is suffering. She has been on garden leave since September 1999. She wants her cases dealt with as soon as possible. Waiting until after the EAT decision on cases 1 and 2 may cause a further six months or so delay. The applicant does not accept that the respondents' existing appeal has merit.
16. We are satisfied that from his short reasons, the Chairman took these competing arguments into account and on balance came down in favour of the applicant's contentions. That is not to say that we, or a different Chairman, may not have come to a different conclusion.
17. The short question in these circumstances is whether the Chairman's conclusion can be said to be perverse in any of the senses helpfully collected by Mummery J in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440, 443. In our judgment it cannot. In these circumstances we must dismiss this appeal.

Application for costs

18. Following our judgment in this case, Mr Donovan made application for costs in the appeal on the basis that the appeal fell within Rule 34(1) of the EAT Rules which provides:

"Where is appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

He submits that this appeal raised no point of law and accordingly that it was unnecessary.

19. In response, Miss Dixon submits that this could not be characterised as a hopeless appeal. In our judgment we refer to the fact that we ourselves or another Chairman may have reached a different conclusion and she also draws attention to the very limited reasons given by the Chairman in his letter of 3rd July 2000.
20. We accept Mr Donovan's submission. Too often these appeals are brought seeking to reargue questions which are for the tribunal's discretion. We see no point of law raised in this particular appeal. We think that it was unnecessary. In these circumstances we think it right that the respondents should pay the applicant's costs in the appeal. Those costs to be agreed and if not there is to be an assessment under Rule 34(2).