United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JANE McNEILL of Counsel instructed by Director of Legal Services, Metropolitan Police Service Solicitor's Dept New Scotland Yard Broadway London SW1H OBG
For the Respondent	JOHN HORAN of Counsel instructed by Russell Jones and Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


MR COMMISSIONER HOWELL QC

1. This is an interlocutory appeal by the Commissioner of Police for the Metropolis against the refusal of the London South Employment Tribunal of two applications made by him in March 2001 to have a nineteen day Tribunal hearing into allegations of racial discrimination by a serving police officer, Sergeant Mohammed Khalil, (fixed to commence on 13 August 2001 by the direction of the Tribunal Chairman at a full directions hearing at which both sides were represented by Counsel on 24 January 2001) vacated, and the hearing of the case postponed either indefinitely or at least for a further four months, so that it would not commence until the beginning of 2002 at the earliest.
2. The Tribunal Chairman at the hearing on 24 January 2001 had considered and rejected an application by the Commissioner to have the entire proceedings deferred for an indefinite period, and had instead given detailed directions with a specific timetable for the disclosure and exchange of documents, preparation of bundles for the hearing, preparation and exchange of witness statements and other necessary work in order to achieve an effective hearing, listed for nineteen consecutive days commencing on 13 August 2001. His detailed directions sent to the parties on 26 January 2001 had recorded the case as listed with the agreement of the parties for hearing before a full Tribunal on those dates.
3. Neither side had sought to appeal or question the orders or directions then made by the Chairman, or the way in which the arrangements about the hearing date or the basis on which the case had been listed for effective hearing on that date with the agreement of the parties had been recorded by him.
4. Despite that, the Commissioner instead made two further applications in March 2001 after a lapse of six and eight weeks respectively, for the hearing of the case to be deferred at least until 2002, on grounds which first repeated and then supplemented those he had already put forward at the hearing on 24 January 2001 as grounds for having all further action on the proceedings stayed for an indefinite period: the application which the Tribunal Chairman had already considered and rejected on that date.
5. Those repeated applications for deferment of the effective hearing would necessarily also have involved in practice a deferment of the directions given for the major part of the preparatory work on witness statements and so forth, though they did not expressly say so. They were each considered on the merits and rejected by the Chairman in his discretion for reasons notified to the parties by the Tribunal in letters dated 16 March and 4 April 2001 respectively, at pages 6 and 9 of the appeal file before us.
6. The appeal to us is against those two decisions, and as set out in the Commissioner's Notice of Appeal dated 9 May 2001 was based on two grounds, first that the decision (or rather each decision) was one which no Tribunal exercising its discretion reasonably could have reached, for various reasons set out in paragraph 6(a) of the Notice of Appeal; and alternatively, though this was not an argument put forward at any stage in the applications themselves, that by the refusal of his applications for adjournment, the Commissioner had been denied his rights to a fair hearing of Sergeant Khalil's proceedings, contrary to Article 6 of the Convention on Fundamental Rights and Freedoms.
7. To those two grounds we permitted Ms McNeill, who appeared for the Commissioner on the hearing of the appeal before us, to add a third: namely that the Tribunal Chairmen in rejecting the applications had failed to take into account as relevant matters to the exercise of their discretion a number of points identified in her Skeleton Argument, which though there expressed in a different way largely paralleled those relied on for the contention in paragraph 6(a) of the Notice of Appeal that the refusal of the postponement sought was perverse.
8. At the end of the appeal hearing we announced our unanimous conclusion that we had not been persuaded there was any ground here for the Appeal Tribunal to interfere with what appeared to us to be perfectly proper exercises of discretion by the Tribunal chairmen concerned over the proper conduct of the proceedings currently before the Tribunal. Accordingly, the appeal was dismissed and we indicated that all parties should proceed at once with the implementation of the Tribunal's directions and the necessary preparation to ensure that there can be a full and effective hearing of the case, on the dates agreed and fixed by the Tribunal as long ago as January. This judgment sets out the detailed reasons for that conclusion and also gives our decision on the costs of the appeal, for which Mr Horan, who appeared on behalf of Sergeant Khalil, applied at the conclusion of the hearing under rule 34 Employment Appeal Tribunal Rules 1993 SI No 2854.
9. The proceedings before the Tribunal were two complaints of racial discrimination and victimisation brought against the Metropolitan Police by Sergeant Khalil, by Originating Applications dated 10 February 2000 and 8 November 2000. Sergeant Khalil is a male police officer of Asian origin who has been in the Metropolitan Police since 3 December 1990. While he was serving as a constable he brought proceedings against the police service in an Industrial Tribunal for racial discrimination in 1993. That case was settled out of court in 1997 and the terms of settlement included an apology from the Commissioner and an undertaking of no future victimisation. Subsequently he passed all the promotion examinations for the rank of Sergeant and was eligible for promotion in November 1999. According to the first of his two Originating Applications with which we are concerned, that of February 2000, he was due to be promoted to Sergeant in 1999, but this was held up in accordance with the normal practice while a complaint from a member of the public was investigated, and when this was cleared up had been told that his posting as Sergeant would take effect on 14 February 2000.
10. The basis of his application to the Tribunal was that another complaint had then been lodged against him in December 1999, by white colleagues, which had the effect of further delaying his promotion; these further complaints were alleged by him to be malicious and without foundation, made as a deliberate means of damaging his career prospects. Furthermore they had caused him to be the subject of a disciplinary investigation which was being unacceptably delayed: after two months he had yet to be interviewed and had been given no opportunity to rebut the allegations made against him. However his application made it clear that the Tribunal proceedings had been issued only to protect his position within the three months time limit while the internal police procedures continued, and he himself asked that no further action should be taken by the Tribunal beyond registering the application for the time being. That request was concurred in by the Commissioner, who in his Notice of Appearance dated 13 March 2000 made his own separate application as Respondent for the proceedings to be stayed pending the outcome of the disciplinary investigation, which might result in statutory disciplinary proceedings against the Applicant for which the Commissioner would be responsible so that he was at that time precluded from forming or expressing any opinion of the kind that would be needed to defend Tribunal proceedings by the same officer as was under investigation.
11. After a delay of a further nine months during which nothing effective could be done in the Tribunal proceedings, the Applicant issued his second Originating Application of November 2000 alleging that the manner in which the internal investigation (which he now understood to have been concluded though he had not been given full details of its findings) had been conducted had itself been discriminatory against him: it had taken an inordinate amount of time and had been of questionable fairness, since he understood that a number of other officers interviewed had been coached in what to say to the investigation by a senior officer about whom he had previously had cause for complaint. Consequently the application of November 2000 asked for the stay on the earlier proceedings now to be lifted, and for the Tribunal to deal both with his previous proceedings and the fresh allegations he was now making of a continued pattern of discrimination against him.
12. The complaints made by the Applicant in both of his Originating Applications of February and November 2000 are answered in detail in a combined amended Notice of Appearance dated 16 March 2001, served by the Commissioner in accordance with the directions given by the Tribunal Chairman following the hearing on 24 January 2001 when the two sets of proceedings were directed to be combined. The Orders and directions made by the Chairman and sent to the parties on 26 January 2001 also identify clearly and in numbered paragraphs the acts of alleged discrimination which formed the subject matter of the complaints in the combined proceedings; and on the face of it there is no reason whatever why both sides should not have then proceeded immediately to preparation of the documentary and other evidence including detailed witness statements for the hearing in according with those directions.
13. The previous objection, that the Commissioner could not effectively defend the discrimination proceedings brought against him by the Applicant while also being responsible for the conduct of possible disciplinary proceedings against him which would require the Commissioner to remain neutral, had ceased to be of any relevance well before the date of the tribunal hearing on 24 January 2001. That is shown by the Commissioner's own admission in paragraph 9 of the combined amended Notice of Appearance that the possibility of any such disciplinary proceedings had ceased to exist at the end of November 2000: following consideration of a report into the complaints against the Applicant and on legal advice, it had been determined that no disciplinary proceedings should be taken against him. Instead there had been a meeting on 28 November 2000 with a Chief Superintendent at which the Applicant had been given some words of advice, had been informed that his promotion was no longer impeded and had had confirmed to him that he would now be transferring to duties in a different borough on promotion to Sergeant on 11 December 2000.
14. Nevertheless the Commissioner appeared by Counsel at the hearing for directions on the two applications on 24 January 2001 and through him made strenuous efforts to have a continued stay imposed on the entire Tribunal proceedings, on the ground that yet further internal investigations by the police were said to be still in progress. These, according to the submissions of Counsel as recorded in the attendance note by the police solicitor which has been helpfully added to our appeal file at pages 41 to 45, were not into the complaints against the Applicant so as to give rise to the possible difficulties about disciplinary proceedings against him that had been the reason for the original stay, but stemmed from what he had said in or about July 2000 after he was eventually interviewed in the course of the investigation of the complaints made by colleagues against him. That had caused the police authorities to begin some form of investigation into the conduct of a number of his colleagues, though as the Tribunal was informed by Counsel on 24 January 2001 the forms to begin that investigation had only been served on the officers involved "recently"; there being no explanation of what, if any, steps had been taken to progress it over the six months from July 2000 to January 2001 beyond the assertion, not supported by any particulars or evidence and denied by the Applicant, that it had been difficult for the Commissioner to bring the investigation to a head without his co-operation.
15. Having heard these arguments, the Tribunal Chairman rejected them; and decided the right course was to make an immediate Order for Directions as there had already been ample time. Quite plainly he was not satisfied that the Commissioner was in anything like the difficulties in relation to the Tribunal proceedings as had been contended on his behalf. In particular, Counsel had asserted that it would be "impossible to draft the Notice of Appearance" because the conduct of other officers was still being investigated; but this plainly was not accepted by the Tribunal Chairman as a cause for further delay and we note that in fact his direction that there should be a combined Notice of Appearance filed on 16 March 2001, in default of which the existing Notice of Appearance might be struck out, produced a perfectly satisfactory and proper Notice of Appearance by that date, addressing the relevant issues without apparent difficulty.
16. That was not however done until after a further attempt had been made on behalf of the Commissioner to obtain a substantial deferment of the date when the proceedings would be effectively dealt with, which was done in the first application by letter dated 5 March 2001 by reference to paragraph 12 of the Chairman's directions dealing with the hearing date. That paragraph was the culmination of the detailed directions and timetable he had imposed, for the necessary work and preparation to be carried out by the parties to move the case forward so as to be ready for an effective hearing in mid-August 2001, commencing with the requirement for the Respondent to file an amended combined Notice of Appearance not later than 16 March 2001; and was as follows:

"Hearing Date

12. The case is listed with the agreement of the parties for hearing before a full tribunal for nineteen consecutive days namely:

13-17 August 2001

20-24 August 2001

28-31 August 2001

3-7 September 2001

commencing at 10.00am on the first day. No postponement of the hearing date will be granted unless there are exceptional unforeseen circumstances or unless either party notifies the Tribunal in writing no later than 30 March 2001 that such dates are not convenient with reasons."

17. The notes beneath added that:

"3. The tribunal has power to vary this Order on the application of the person to whom it is directed but can only do so for good reason. Any application to vary this Order must be made in writing and should be made prior to the date for compliance with the relevant part of the Order.

4. This Order confirms orders made/directions given at a hearing on 24 January 2001"

18. The first application letter of 5 March 2001 stated the grounds for a postponement as follows:

"Further to paragraph 12 of the Chairman's Directions Hearing note of 24 January 2001, the Respondent respectfully requests a postponement of the scheduled hearing date and that the matter be subsequently relisted.

The Tribunal is advised that there is still an ongoing internal investigation into the Applicant's allegations as stated by Respondent Council at the Directions Hearing on 24 January 2001 and we have not been given a timescale as to when the investigation will be completed.

Apart from the above, the Respondent is still unsure as to the number of witnesses required to defend the Respondent's case due to the ongoing investigation, however two witnesses who have been initially identified in this matter have arranged annual leave for this period whilst another witness has arranged paternity leave as his wife is due to give birth to their first child during the scheduled period. Furthermore both Instructing Solicitor will be on pre-arranged annual leave and Respondent Counsel is involved in another hearing during this period.

In light of this please find the Respondent's dates to avoid as follows:"

And there then followed a succession of dates in August, September, October, November and December 2001 which if they had been avoided would have made it for practical purposes impossible to achieve an effective full hearing of nineteen days in that year at all.

19. Underneath that the letter stated "2002 January: No dates to avoid", with a similar entry for February, but otherwise made no positive suggestions: so that in substance what was being asked for was a further delay of at least four months in the effective progress of the proceedings and possibly even more, depending on the speed of an internal investigation where there had already been an unexplained delay of six months in even issuing the initial notices to the officers concerned, and as to which no further information was offered.
20. On 16 March 2001, in the first of the decisions under appeal to us, the Tribunal notified the parties that this application was rejected, in the following terms:

"1. I acknowledge your letter of 5^th March in which you ask for a postponement of the hearing of this case.

2. The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay. Your request for a postponement is refused for the following reason(s):

The Chairman (Mr J Warren) is appalled that the Respondents are asking for a postponement of a case listed 6 months hence on the basis that the internal procedures are not yet concluded, as these procedures commenced in January 2000. Such delay is not acceptable. The Chairman wishes his views to be brought to the attention of those in charge of the internal procedures so that these procedures can be concluded and if necessary the Employment Tribunal can hear the complaints in August 2001."

21. On the same day, the amended Notice of Appearance was lodged, in accordance with the first of the directions given on 24 January 2001 designed to lead to an effective hearing in mid August.
22. On 27 March 2001 the solicitor for the Commissioner tried again, in a renewed application repeating points already canvassed at the hearing of 24 January 2001 and in the letter of 5 March, in the following terms:

"I acknowledge your letter of 16 March in which our request for a postponement of the scheduled hearing date has been refused.

The Tribunal is advised that the Respondent has not solely sought to rely on the ongoing internal investigation into the Applicant's allegations as the main reason for our request. We also seek to rely on the fact that it is likely to transpire that further witnesses will be identified as the investigation progresses so we are still unsure as to the number of witnesses required to defend the Respondent's case, and if many witnesses are identified during this period it may become apparent that 19 days is not sufficient time in which to complete the full merits hearing.

Furthermore, two of the witnesses who have been initially identified in this matter have arranged annual leave during this period; another witness has arranged paternity leave as his wife is due to give birth to their first child during this time. We are also in the process of locating another witness who is central to the Respondent's case. The Tribunal is further advised that Instructing Solicitor will be on annual leave and Respondent Counsel is involved in another hearing during this period and we feel that in light of the allegations made by the Applicant that it would not be prudent to instruct new Counsel at this stage.

The Tribunal is also referred to paragraph 12 of the Chairman's Directions Note of 24 January which stipulates that the hearing date will not be postponed unless either party notifies the Tribunal in writing no later than 30 March 2001 that these dates are not convenient and with reasons. It is noted that we have complied with this order as our first letter was sent on 5 March and stipulated clearly our reasons for the request made.

Thus we respectfully request that the Tribunal reconsiders our request for postponement and further to our letter of 5 March, please find additional dates to avoid of the Respondent as follows: …"

And the additional dates then specified removed even the theoretical possibility that a total of nineteen hearing days could have been obtained in the year 2001, even by hopping from one date to another instead of having a reasonable sequence of consecutive hearing days.

23. The response to that was the second Decision under appeal to us, contained in a letter of 4 April 2001 in the following terms:

"1 I acknowledge your letter of 27 March 2001 in which you ask for a postponement of the hearing of this case.

2. The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay. Your request for a postponement is refused for the following reason(s):

The hearing in August was agreed at the Interlocutory Hearing. The circumstances now raised do not justify the granting of a postponement. The first IT1 was received in February 2000 and the second in November. The Applicant is still employed - it is appropriate that the hearing should not be delayed, 19 days should be more than sufficient."

24. On behalf of the Commissioner on the appeal hearing before us, Ms McNeill first acknowledged that on the basis of her present instructions which were that the delayed investigatory process has now been practically completed, a total of nineteen hearing days should indeed be sufficient for the proceedings before the Tribunal; and no issue was now taken on the possibility of that not being sufficient time in which to complete the full merits hearing. Nevertheless she said there were numerous factors which had either inadequately or erroneously been taken into account, or which if properly considered demonstrated that the rejection of the March applications for postponement were perverse in the sense that no reasonable Tribunal properly directing its mind to the relevant issues on the application could have refused what was being sought.
25. First, she said that it was wrong for the second refusal letter to have proceeded on the basis that the hearing date in August had originally been agreed at the Interlocutory Hearing. This she said failed to reflect the unsuccessful objections to the proceedings going ahead at all, and also the final part of paragraph 12 of the directions given, which should in the circumstances have been understood and applied as in effect an option for either side in such a difficult and complicated case to have it taken out of the list and deferred to other dates: by notifying the Tribunal in writing by 30 March 2001 that the original dates given were found to be inconvenient, provided of course that the reasons for this were genuine and not insubstantial.
26. That in our judgment is unarguable: there is no reason to think (nor was there any previous suggestion) that the position was recorded other than accurately by the Chairman in paragraph 12 of his Directions Order dated 26 January 2001: namely that the actual hearing dates had been agreed at the hearing on 24 January, once the application to stay the whole proceedings had been rejected and a timetable was being set. Moreover there is in our judgment no question of the wording in the final part of that paragraph meaning that any later application to alter the dates, even if made by the stipulated date, should be considered other than in the normal way on its merits, by considering the reasons given and balancing them against other relevant considerations: such as the delay that had already occurred and the detriment to the other party if this was increased further.
27. Secondly, Ms McNeill said that each refusal was in error in holding that the circumstances now raised did not justify granting a postponement. Again she focused on the difficulties that would be experienced by the solicitors to the Commissioner in preparing for the case if they were hampered in their ability to approach witnesses by the fact that those same witnesses might be involved in a continuing internal investigation. That appears to us to be a potentially relevant consideration, but one that was extensively canvassed and rejected at the hearing on 24 January 2001 as a reason for deferring further action on the Tribunal proceedings altogether. It appears to us wholly within the proper ambit of the discretion of the Tribunal Chairman considering the later applications in March to defer the hearing, to decide that it should not outweigh the obvious detriment to the Applicant in a further lengthy or even open-ended deferment of the effective hearing of his Tribunal proceedings: and we see no reason whatever to infer that it was not properly taken into account, in the balancing exercise which each refusal letter recorded had been carried out by the Chairman in deciding not to order a postponement.
28. Thirdly Ms McNeill drew our attention to the specific difficulties over availability of particular witnesses which had been explained in each application letter, and submitted that as neither refusal letter had specifically referred to these or given express reasons why the non-availability of those witnesses on particular dates had not been considered a sufficient reason for postponing the entire hearing until the following year, it should be inferred that the point had been ignored and not properly taken into account at all. A similar submission was made in relation to the point about non-availability of the particular solicitor having conduct of the proceedings on behalf of the Commissioner, and Counsel who had previously been instructed in the case (who Ms McNeill informed us was herself, though it was not in fact she who appeared on behalf of the Commissioner at the only hearing that has actually taken place in these Tribunal proceedings, the detailed Hearing for Directions on 24 January 2001).
29. Again in our judgment, each of these points goes to matters of degree, to be taken into account in the exercise of the Tribunal's discretion and balanced against the possible detriment to the other side in deciding whether a further substantial delay in the effective hearing of the proceedings ought to be ordered. We see no reason whatever to infer that having been raised expressly on behalf of the Commissioner they were not duly taken into account by the Tribunal Chairman in deciding whether or not a postponement should be ordered as asked. Again we do not think any legitimate criticism can be made of the terms of the refusal letters, for not having advocated specifically to these points beyond saying that consideration had been given to all that was said: there could be no reasonable ground for saying that the need to arrange cover for a solicitor or ensure that other Counsel was instructed (with still some four months to go before the hearing date) could materially handicap the Commissioner in defending the proceedings, nor could the possible non-availability of witnesses on particular dates be reasonably said to make it essential to defer the entire hearing so long in advance: before witness statements had even been prepared and exchanged and the extent of the need for their actual attendance been known. That much was in our judgment so obvious as not to need stating more explicitly than it was.
30. Finally Ms McNeill submitted that the rejection letter of 4 April 2001 embodied a misdirection and was rendered perverse by its reference to the Applicant as being still employed. She drew our attention to the observations of the Appeal Tribunal in another case, North Yorkshire Police v Ashurst (EAT 1280/95 19 January 1996), where the decision of an Employment Tribunal to refuse a postponement of Tribunal proceedings when the complainant was also involved in police disciplinary proceedings was overruled. In that case there were related proceedings involving another complainant who had already left the force, and the Appeal Tribunal had already decided that those related proceedings had to be deferred, by reason of their close connection with the disciplinary proceedings already on foot. In the course of giving the judgment of the Appeal Tribunal that the Tribunal proceedings involving Ms Ashurst also had in those particular circumstances to be postponed notwithstanding the fact that she was still a serving officer, Mummery J (as he then was) said this:

"(1) Consistency of treatment and approach, which is relevant to both the concept of justice and to the proper exercise of a discretion, indicates that the Appeal Tribunal should do the same in this case as was done in the Rose case, which has not been appealed to a higher court, unless a relevant distinction can be found between the two cases.

(2) The fact that Miss Ashurst is a serving officer and that Miss Rose is no longer a serving officer is not a relevant ground of distinction between the decision of the appeal tribunal in the Rose case and this case.

The crucial facts are that Detective Chief Inspector Hallinan has been suspended pending the hearing of the charges against him. The complaints against him by both Miss Rose and Miss Ashurst are similar. They have been investigated over a period and are subject to similar charges in the same internal proceedings. There is no evidence from Miss Ashurst, any more than there was from Miss Rose, of any specific prejudice likely to be suffered by reason of a postponement."

31. In the present case, there was and is nothing to indicate that any officer has been suspended or has charges hanging over him in internal proceedings making it necessary for these Tribunal proceedings to be postponed, or which have caused any other Tribunal proceedings to have to be postponed so that these ones should also be postponed for consistency as happened in the Ashurst case. We reject the express submission made to us by Ms McNeill that the observations of Mummery LJ made in the particular context of what had happened in the Ashurst case should be erected into a general proposition of law that the fact that a person is still a serving police office may never be taken into account as relevant to an exercise of discretion over whether their Tribunal proceedings should be postponed or got on with. That would in our judgment be an absurd proposition, and the Tribunal Chairman's comment appears to us to be doing no more than making the obvious and perfectly reasonable point that any further unnecessary delay or uncertainty must be a potential detriment to the Applicant, because of his continuing position in the force and the desirability of having disputes between him and his employer cleared up sooner rather than later. That appears to us to be an entirely proper factor to be taken into account in the circumstances of this particular case against imposing yet further delay before a final outcome.
32. For those reasons we have not been persuaded that there was any impropriety, misdirection or perversity in either or both of the refusals of the Commissioner's applications for postponement of the hearing date. Both Counsel made it clear that there were no differences between them over the applicable principles of law to be applied in this context: for present purposes they are adequately summarised in the following passage from the judgment in the Ashurst case cited above:

"Industrial Tribunals have a wide discretion to grant or refuse an adjournment. They are and must remain in control of their own lists. If an adjournment is sought, an application should be made to the Chairman as soon as possible. If it is refused, the application can be renewed to the full Tribunal on the date fixed for the hearing. It is rarely justified for a party denied an adjournment to appeal to this Tribunal. The Appeal Tribunal will only disturb the exercise of the discretion if it is demonstrated by argument and, where appropriate, relevant evidence, that the discretion has been exercised contrary to legal principle, or without proper consideration of all the relevant circumstances or in a manner in which no reasonable tribunal would exercise it. See Bastick v James [1979] ICR 778 at 782. In most cases it will be difficult for the Appellant to demonstrate such an error of law by the Tribunal"

33. Applying those well established and familiar principles there is in our judgment no question of the Tribunal decisions given in this case against granting the extended postponement sought being in error of law in any of the respects argued before us; and in our judgment on all the material shown to us they represent what in our view is a very proper exercise of the discretion vested in the Tribunal. Indeed the fact that an appeal to this Appeal Tribunal was brought at all on such material, in effect renewing an application considered and rejected not once but twice at the Tribunal level after the initial major attempt to defer the proceedings altogether had also been rejected, was a matter we all found of some surprise.
34. Ms McNeill's additional point that the Police Commissioner had in some way been deprived of his human rights under Article 6 of the Convention by the refusal of an extended postponement of the proceedings brought against him was not pursued by her strenuously, and does not in our judgment provide any separately arguable ground of appeal. In our judgment, in the circumstances of a case such as the present, the fact that Article 6 entitles both sides to a fair hearing before an independent Tribunal within a reasonable time (our emphasis) adds nothing to the factors already taken into account as relevant as a matter of course by a Tribunal Chairman in determining procedural questions such as this with a view to a fair and just disposal of the issues before the Tribunal for decision.
35. An additional point drawn to our attention at the hearing was that although not raised at any stage of the Tribunal proceedings below or able to be relied on as a ground of appeal before us, an issue has been raised in an entirely separate case Chief Constable of Bedfordshire v Liversidge (EAT 773/00) that may affect the present one. This is whether in proceedings under the Race Relations Act 1976 by a police officer against his Chief Officer of Police or the Police Authority, any reliance can be placed on alleged acts of discrimination carried out not by the Chief Officer or members of the Authority themselves but by other serving police officers; who by virtue of the special nature of their office as constable or other police rank may not themselves count for this purpose as "employees" to give rise to vicarious liability for their acts in the same way as for true employees under sections 32 and 33 of the 1976 Act: cf. the more limited terms of section 16. Ms McNeill was in our judgment right to point out that the outcome of that case may have some material impact on Sergeant Khalil's applications, and indeed all other pending proceedings by police officers under either the sex or race discrimination legislation, though it is hoped that guidance on the issues involved will shortly be given by the President and our colleagues before whom that other case is still pending as an appeal. We direct the attention of the Employment Tribunal to the existence of that case: though in our judgment Ms McNeill was right to concede that she was not able to raise it as a separate issue by way of appeal before us in the present proceedings, and Mr Horan for Sergeant Khalil was right to submit that any question of how, if at all, it should affect the procedure in the present proceedings would have to be the subject of a further separate application at the Tribunal level with which we are not concerned.
36. For those reasons we unanimously dismiss this appeal. In consequence, all parties must proceed from now on in accordance with the directions of the Tribunal Chairman given in January 2001 with a view to this case coming on for effective hearing as directed on 13 August 2001: subject only to the additional possibility last mentioned, though that should not in our view be used by any party as an excuse for delaying preparation or allowing the timetable to slip, unless or until the Employment Tribunal specifically so directs on a proper application.
37. At the conclusion of the hearing Mr Horan applied for an Order that the Commissioner should pay Sergeant Khalil's costs and expenses of the appeal under Rule 34 of the Employment Appeal Tribunal Rules, on the ground that the appeal proceedings had been unnecessary and improper, and the grounds put forward always hopeless. But for the one factor urged on us by Ms McNeill that the principal concern of the Appellant had throughout been to maintain the integrity of his own internal investigation and disciplinary procedures in case these might be compromised if the Tribunal proceedings were allowed to go ahead concurrently, we would have accepted Mr Horan's submission and ordered the costs of the appeal; since apart from that one factor we were satisfied that the Appellants had acted unreasonably in pursuing it. However at the end of the day we have not felt it right to infer that the concerns which appear to have driven what would otherwise have been fairly viewed as an unjustifiable delaying exercise were other than genuinely felt, and accordingly in these particular circumstances do not think it right to exercise our discretion to award costs.
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