United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE LINDSAY:

1. This is a judgment in the third Notice of Appeal, the one in the bundle we have marked "C", with which we need to deal today. In our earlier judgments we have referred to the principal judgment of the 25th April of this year and that judgment is to be read as a prologue to this one. In this appeal we are concerned with the Notice of Appeal of the 23rd October against the Decision sent to the parties on the 13th September 2000 (EAT/1368/00) following a hearing on the 5th September 2000. The Decision sent to the parties on the 13th September was the Decision of the Tribunal at Stratford under the Chairmanship of Ms V.K. Gay sitting with Mrs D. Elliott-Jones and Mr D.J. Horn. On that day Ms Sivanandan had appeared in person and Mr Linden of Counsel had appeared for the Respondents who can be grouped into 3 (although numerically they greatly exceed 3) namely, first, London Borough of Enfield, secondly, Mr S. Bell and others, thirdly, Chandra Bhatia. The unanimous decision of the Tribunal was that the application by Ms Sivanandan for a postponement of the full merits hearing listed to start that day, the 5th September 2000, be refused. Ms Sivanandan's Notice of Appeal is of the 23rd October.
2. An Employment Tribunal may, under Rule 13 (1), regulate its own procedures. It can thus adjourn a fixture. Rule 13 (7) is to the like but more specific effect concerning what a Chairman may do. Here the Employment Tribunal in its Extended Reasons first set out relevant principles which need to be borne in mind in relation to the sort of matters that require generally to be considered on an application for an adjournment. The Tribunal indicated that they had a discretion which had to be exercised judicially. They said:-

"The overriding principle is that the Tribunal must bear in mind that all parties have an expectation of, and entitlement to, a fair trial. This is something which the Tribunal must seek to achieve for the individual applicant as well as for the large public authority which is the first Respondent and the individuals who are the second and third Respondents. There are a number of factors which it is relevant to bear in mind when exercising this discretion in the interests of achieving a fair trial. The Tribunal considers that this involves having regard to the following."

The Tribunal then set out, under a number of headings, matters that commonly fall to be looked at in relation to applications for adjournments, such as the date when the application for postponement was made, the views of the parties, the ability to relist in the future so that the hearing can proceed, how old are the events in question, the reasons given for the request and the reasons in opposition to a postponement. The Tribunal concluded this passage by saying:-

"There may be other matters which affect the grant or refusal of a postponement, depending on the case and the matters put before the Tribunal. However it is important not to lose sight of the overriding principle, as we have set it out above, namely that all parties are entitled to a fair trial."

3. The Tribunal then began to look at those factors separately and made a number of points which we need to set out. Thus, under the heading "Timing of application", they say:-

" The case has been listed since the start of February 2000. The first application to postpone was made in writing by the Applicant, by letter dated 25th July and was received in the Tribunal on the 26th July 2000. The only ground was that there was an outstanding appeal.. The application was immediately refused."

4. On the question of whether the parties agreed to postponement, the Tribunal noted that all Respondents objected to the postponement. On the subject of the ability to relist the case were it to be shifted, the Tribunal said:-

"The Chairman made inquiry of the listing section on the last occasion and was informed that the earliest realistic date at which the case could be relisted for hearing was September 2001, a year from the present date."

In relation to the age of events that needed to be examined the Tribunal said:-

"This case relates primarily to events which occurred during the employment of the Applicant from the 22nd July to the 11th December 1996. The events are thus some 4 years old."

Under the heading "Applicant's reasons for seeking postponement" the Tribunal notes:-

"The Applicant applies to postpone this hearing and to have it relisted many months hence for three reasons."

Then the reasons are dealt with separately and the first one was that there was an outstanding appeal to the Employment Appeal Tribunal. That appeal concerned the production to Ms Sivanandan of documents. The Employment Tribunal was unconvinced as to the relevance to the case of the documents which were being sought. They said:-

"We gave the Applicant a full opportunity to impress upon us the effect or rôle of these documents since, as she repeatedly told us, we are a Tribunal which is relatively new to this case. Doing the best we can, we are not satisfied that the documents or the uncensored documents will affect the conduct of this case, or would have affected its preparation, in any significant way. We note this is a matter which has already been considered by the EAT and that Mr Barry's Tribunal in February 2000 directed itself in accordance with the EAT decision. We note further that the EAT has declined to determine that this hearing should be stayed before it hears the full appeal on the 13th October. We also know that contrary to the Applicant's assertion it is not unusual for a Tribunal to proceed whilst there is an outstanding appeal, as indeed the EAT recognised in different circumstances at the end of its decision in this case on 22nd October 1998. Finally, we are heartened by the knowledge that if the EAT were to determine that the Applicant should see some further documents, the Respondent has indicated that it would disclose them forthwith so that they would be available during the currency of this hearing. The Applicant could, if necessary, give further evidence or cross-examine further about them. Whilst this might be somewhat untidy it means that any possible prejudice to the Applicant (which we have not been able identify) could be overcome."

Then, under the heading "The 35 days listed for hearing insufficient", the Tribunal made the point that there were already 35 days set aside for the hearing of the case. They continued:;

"That was done at the request of the Applicant. The various Respondents estimated that the hearing would last 25 days."

A little later they referred to the Applicant, Ms Sivanandan, then saying to them that even 35 days would not suffice. They said:-

"The Applicant is a litigant in person and has relied upon her experience of giving evidence over a few days in one other Tribunal. On that basis she asserts that 20 days would be needed for her evidence-in-chief and that the case will last in the region of 66 days. This Tribunal has considerably greater experience of the hearing and giving of evidence and assisted by Mr Linden's estimate that even 25 days is generous, we are satisfied that we understand the issue sufficiently to be able to determine that there is no real risk of this claim going part heard if we commence this hearing as intended."

Later still under the same heading the Tribunal said:-

"Having read the pleadings, the decisions and orders in the Interlocutory Hearings the Decision of the Employment Appeal Tribunal and the associated documents (including the Respondents' list of issues prepared for today's hearing, but not giving too much weight to that document which we consider may be somewhat contentious), we are confident that with proper judicial management this claim can be dealt with in less than 35 days."

Then, dealing with what became, perhaps, the most important part of Ms Sivanandan's case, the Tribunal dealt at some length under a heading "The Applicant's health" with such medical indications as were reliably put in front of them. They began as follows:-

"The Applicant has asserted on various occasions that her health is too poor to permit her to do the necessary preparatory work, or to attend at this hearing 35 days (albeit the 35 days are to some extent discontinuous). By agreement with the parties and at the Applicant's suggestion, as set out in the decision following an Interlocutory Hearing held on 15th August 2000, the Tribunal took a course that was calculated to cause it to obtain medical evidence relevant to this matter."

That plan was that a series of questions should be framed by the Tribunal and put to the Applicant's General Practitioner, and that was done. The Tribunal had before it the Applicant's General Practitioner's answer of the 29th August which, they said, they read with care. There had already been a letter from the General Practitioner of the 16th August and that, too, was before the Tribunal. The Tribunal say:-

"Both letters from the GP refer to stress which is related to insomnia and exacerbation in the form of headaches associated with vomiting. No other physical or mental conditions are mentioned. "

Unfortunately for Ms Sivanandan, her General Practitioner's more recent letter indicated that the GP was at the moment unable to give a prognosis. This concerned the Tribunal and they say so. They add:-

"There is no medical evidence to the effect that while this case is hanging over her the Applicant will ever recover fully so to be able to conduct it (or to be able consistently to do the preparatory work) in a state of sound good health."

A little later they say:-

"In other words once this case resurfaces, on her own account the Applicant succumbs to ill-health again."

They had had indicated to them by Ms Sivanandan that there was a possibility that Lambeth Law Centre would assist her but there was nothing before the Tribunal that suggested that that was other than a possibility. There was no letter from the Law Centre indicating that if only this contingency or that was met they would assist Ms Sivanandan. The Tribunal's conclusion on the important subject of health (related also, as it necessarily had to be, to the possibility of her position being alleviated upon gaining assistance from the Law Centre) was as follows:-

"We bear in mind that the Applicant has mentioned that there is a possibility that Lambeth Law Centre will be able to assist her, but that they only received the papers yesterday. This is entirely too speculative to be of assistance to us today. We have determined that

(a) The Applicant is clearly not a wholly fit or well person;

(b) She suffers stress (leading to insomnia) and migraine attacks ,associated with vomiting;

(c) These conditions cause her at times to be tired and less efficient than she would be otherwise and render it more difficult for her to prepare and conduct her case than if she were fully fit or well;

(d) She is wholly incapacitated from preparing for the hearing or conducting it during a migraine attack;

(e) There is no basis on which we can conclude that the Applicant's health problems are likely to improve, if we postpone the hearing, so that she will be more fit to present it at a later date.

The Tribunal concludes that the Applicant is fit to conduct the hearing (and has been fit to do preparatory work) save when she is suffering a migraine attack. We recognise that she is less than fully fit and we intend to ameliorate that disadvantage by having shorter than usual sessions, as we wrote to her General Practitioner, namely by sitting from 10.0 until 11.30; 11.45-1.0 and 2.0-4.0. If at any stage an additional adjournment is necessary for health reasons, the person or party affected should request an adjournment from us and it would be considered at that time. We shall extend to the Applicant the usual assistance which any Tribunal would offer to a litigant in person."

5. Under the next principal heading "The Respondents' reasons for opposing postponement". The Tribunal said:-

"The matters which the Respondents put forward are:-

(i) Position of those against whom allegations are made

A considerable number of individuals (both as Respondents and as employees of the first Respondent) have the weight of this case hanging over them, with serious allegations made against them, and have had for almost 4 years now. Proceedings commenced in March 1997. They wish it to proceed to resolution as soon as possible.

(ii) Effect of delay

Memories are adversely affected by delay. A fair trial involves fairness also to Respondents and the prospects of achieving this are unlikely to be reduced by further significant delay."

6. Then, under the heading "Matters affecting particular individuals" the position of three individual witnesses or prospective witnesses or parties on the Respondents' side was examined. There was, it would seem, a slight risk of prejudice if time was further allowed to pass but it cannot be put more strongly against Ms Sivanandan than that.
7. The final subject considered was "Wasted costs" and, as a conclusion on this part of the argument, the Tribunal said:-

"The Tribunal considers that all four points made by the Respondents are valid and proper points. We bear them in mind, save that we are unimpressed by the mere fact of Mr Smith's retirement [he was one of the 3 witnesses to whom we referred a moment ago] since the first Respondent has been able to obtain him as a witness."

Then as an overall conclusion the Tribunal said:-

"The Tribunal's primary concern is to provide a fair hearing for all parties. We are satisfied that that is more likely to occur if the hearing proceeds than if it is postponed. For the reasons set out above we refuse the application to postpone this hearing."

8. Ms Sivanandan's Notice of Appeal includes the following:-

"The decisions and the conduct of the hearing was indicative of bias against myself. Note: my application for a postponement of the case was based on:-

(a) My outstanding appeal to the EAT on interlocutory decisions as to the disclosure of documents and my application to the EAT that the full hearing of the Tribunal case be vacated until the interlocutory matter was dealt with - an application which the EAT had said it would consider at a hearing on the 13th October 2000 as it was unable to list it prior to the 5th September Tribunal;

(b) My ill-health to which end my GP had written 2 letters for the Tribunal dated 16th August and 29th August,

(c) The likelihood of my case requiring more than the number of days for which it had been listed and therefore the high probability of a lengthy adjournment being necessary, contrary to guidance issued by the Court of Appeal,

(d) The strong likelihood that I would obtain legal advice and representation from the Race Discrimination Unit based at the Lambeth Law Centre."

9. It is, however, notable that each of those factors (a)-(d) had been expressly considered by the Employment Tribunal. The weight to be attributed to the competing factors and the balance between them is essentially a matter for the Tribunal itself. Ms Sivanandan invokes the Human Rights Act and Article 6 either alone or in conjunction with Article 14, but we cannot see that that invocation here adds any strength to her case that would not be there had she merely asserted her common law right to a fair trial, a right of which the Employment Tribunal was thoroughly seized. It has to be remembered that both or all sides to litigation are entitled to a fair hearing. The IT1 Originating Application had been lodged by Ms Sivanandan as long as the 10th March 1997. The hearing on and from the 5th September had been fixed from February 2000. There were many individual Respondents as well as a corporate Respondent. They could not be expected to wait and wait for some distant end to the matter. A balance had to be struck and on the question of Ms Sivanandan's health, perhaps the most taxing of all the issues then put before it, the Tribunal struck a balance, as we have seen, that so long as Ms Sivanandan was not actually suffering from a migraine attack she could not unreasonably be expected to continue with her proceedings. Her position was to be ameliorated by a break in sittings and sittings not going on beyond 4 o'clock in the afternoon. A further part of the regime was that if at any stage an additional adjournment was necessary for health reasons the person or party effected would be able to request an adjournment and that would then be considered.
10. Leaving aside the issue of bias which we will come on to later under a different Notice of Appeal (although we recognise that it was raised in this Notice of Appeal also) we cannot see any error of law in the Tribunal's decision that the case needed to go on in the way that they prescribed. For the reasons which the Tribunal itself identified, the existence of the outstanding appeal to the EAT was not a sound reason for not at any rate beginning the hearing. The question of whether 35 days sufficed was very much a matter for a view to be taken by the Tribunal; it had the papers in the case before it; it had heard the parties and it was open to it, in our view, to conclude, as it did, that with proper judicial management the case could be dealt with in less than 35 days. Weight did have to be given to the reasons which the Respondents gave for opposing the adjournment. The degree of weight to be attached to those considerations was essentially a matter for the Tribunal. Thus, as it seems to us, chief of all of the points raised by Ms Sivanandan's grounds for not proceeding with the case on or after the 5th September were the medical indications, as to which some evidence was laid before the Tribunal on the day.
11. The General Practitioner's letter of the 29th August 2000 did say "Ms Sivanandan suffers from migraine attacks". The General Practitioner indicated that that was exacerbated and that insomnia also followed. It was also said that when there was stress there were more migraine attacks and that that might lead to severe headaches, with vomiting. The letter indicated that Ms Sivanandan had been prescribed medication for her migraine attacks. No other medication was mentioned. The General Practitioner indicated that during attacks Ms Sivanandan would be unable to do any work for her Tribunal hearing and that the insomnia that followed led to her feeling very tired during the day, making it more difficult for her to do work at the Tribunal. We have already mentioned that the practitioner said "At the moment I am unable to give you a prognosis". The General Practitioner added, with our emphasis:-

"Ms Sivanandan may in future be fit to conduct this litigation."

But she continued to say that she was unable to comment on the likelihood of Ms Sivanandan becoming and remaining fit enough to conduct pre-hearing work and for an extended hearing to take place at a later date "Even if it was relisted many months later".

12. Given that the Employment Tribunal could hardly accept a system in which the case was adjourned without limit, some regime had to be devised which would recognise that, at all events during a migraine attack, Ms Sivanandan would be unable to cope either with preparation for the case or with the conduct of the hearing. That, as it seems to us, was exactly what the Tribunal sought to meet in the paragraph which we have already mentioned and, as it seems to us, it was a well-intentioned attempt to strike a reasonable balance between the interests of Ms Sivanandan and the interests of the Respondents. In order to succeed on this appeal Ms Sivanandan would need to show that the Tribunal exercised the discretion that it had improperly, either by taking into account that which it should not have taken into account, by failing to take into that which it should have done or otherwise having erred in some principle of law. We have listened to Ms Sivanandan at some length but we are quite unconvinced that even an arguable error of law has yet been shown to exist in this part of the case and accordingly we dismiss this appeal even at the preliminary stage. The issue of bias will be ruled upon the course of other appeals, one, at least, of which, will go to a Full Hearing. If it succeeds it will, no doubt, be seen that bias also coloured the Tribunal's view of whether the full merits hearing should have been adjourned, but that would not affect the practical future conduct of the case as, if this Employment Tribunal were shown to be biased, the case could only proceed before some other one. We have thus left bias out of account and, doing so, we dismiss the appeal for the reasons we have given.