United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	KEITH MORTON (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR P COSGROVE Representative


 


JUDGE PETER CLARK

1. This case is proceeding in the London (Central) Employment Tribunal. By an Originating Application presented on 7 September 2000 the Applicant, a serving Administration Officer employed by the Public Trust Office, complains of indirect sex discrimination. She had earlier made an internal complaint of racial harassment and harassment against her as a part-time worker, against her line manager Ms Joanne King, which led to a report, rejecting those specific allegations of harassment, written by Mr Jeremy Tagg of Personnel Management, and dated 21 July 2000. The claim is resisted.
2. On 18 January 2001 a directions hearing took place before a Chairman, Miss A M Lewzey, sitting alone. The Chairman identified the issues for determination at the substantive hearing, confined to the question of indirect sex discrimination and in particular whether the Applicant suffered a detriment in the lack of opportunity for promotion and in the expectation that she would do her work in less time than if she were a full time worker, pro rata.
3. Among other orders made, the Chairman directed that the case be listed for substantive hearing on 17 - 20 July 2001. Those dates were to be kept, barring exceptional circumstances, with this proviso:

"Mrs King who is the Respondent's principal witness is very ill and is also pregnant. If the Respondent seeks a postponement on the grounds of Mrs King's ill-health they should do so at the earliest opportunity and, in making their application should enclose a medical certificate stating the nature of Mrs King's condition and the prognosis and the likely date upon which she will be fit to attend the hearing."

The Chairman's directions were recorded in a letter to the parties dated 29 January 2001.

4. On 22 February the Treasury Solicitor, acting for the Respondent, wrote to the Tribunal enclosing a letter from Dr Weadick, Ms King's General Practitioner, dated 6 February 2001 in which the doctor referred to Ms King's long standing liver condition, chronic active autoimmune hepatitis. As a result of her pregnancy, her liver was finding it difficult to cope and she had been certified unfit for work, since 16 October 2000. The doctor was then of the opinion that she would be unlikely to be fit to attend a Tribunal hearing until well after the end of her pregnancy.
5. On 24 February the Tribunal wrote to the Treasury Solicitor asking to be notified of the position after Ms King had given birth.
6. On 20 March he applied for a postponement of the hearing, fixed for 17 July. The solicitor was unable to say when Ms King would be fit to attend a hearing. Her baby was expected during that week. Although we have not been given the precise date, we understand she gave birth at the end of March. He said that she was expected to remain in hospital until the end of May at the earliest, and a medical certificate dated 6 March was enclosed, putting her off work until 31 July. That application was refused by a Chairman by a letter dated 9 April. The reasons for the refusal were these:

"(1) The Respondent must produce a more accurate medical certificate stating whether Ms King is unfit to attend the Tribunal in July. It only says she should refrain from work. It should also state when Ms King will be fit.

(2) Moreover your opponent has objected to the postponement requested."

7. The postponement was renewed by the Treasury Solicitor by a letter dated 16 May. It was said that Ms King was an essential witness. A further letter from Dr Weadick was enclosed dated 14 May. I should read it in full:

"Joanne King as you may be aware suffers from a condition called chronic active autoimmune Hepatitis which she developed at the age of 14. This has resulted in a complication called portal hypertension which gives abdominal pain and swelling. She has also been pregnant recently having to be induced at 32 weeks (i.e 8 weeks prematurely) for the sake of her health. This puts a further strain on her history of depression.

In June she is to attend the Royal Free Hospital for consideration of splenectomy to try and reduce her symptoms although it is quite possible that these tests may reveal the need for a liver transplantation.

From this I hope it is evident that Ms King is currently in a very fragile state of health and so I feel that her tribunal in July would be beyond her abilities at present, and until the test results from June are known (probably not before the end of July to August) that a prognosis or date when she may be able to face the tribunal can honestly be given."

8. A Chairman considered this further application and again refused it by letter dated 4 June 2001. The reason for refusal was put in this way:

(1) It appears that Ms King's health will continue to prevent her appearing as a witness indefinitely. The Chairman considers that justice to both sides requires that the case should proceed without her and that you should consider whether some other person may produce her notes and give evidence on behalf of the Respondent. It is not in the interests of either side that more time should go by before the hearing on the chance that at some unspecified date in the future Ms King may be well enough to give evidence."

Against that order the Respondent now appeals.

9. It is now well established, and Mr Morton accepts, that on appeal from an interlocutory order such as this, made under Rule 13(7) of the Employment Tribunal Rules of Procedure, the Employment Appeal Tribunal does not have a general power of review, approaching the matter de novo. Medallion Holidays v Birch [1998] ICR 578 cf British Library v Palyza [1984] ICR 504. It will only be open to this court to interfere with such an order made below where the Wednesbury test has been passed, that is, that the Chairman took into account an irrelevant factor, failed to take into account a relevant factor or otherwise reached a conclusion which is, in the true legal sense, perverse. Carter v Credit Change Ltd [1979] ICR 908.
10. Against that background we turn to consider the submissions made by Mr Morton in support of the appeal. The real thrust of this appeal, it seems to us, is that the Respondent below would be disadvantaged at the substantive hearing if the witness, Ms King, is not called. She is described as the principal witness at the earlier directions hearing which took place before Ms Lewzey. Mr Morton makes the point that a witness statement, although none has yet been taken from her, or notes of evidence which she gave at the internal investigation before Mr  Tagg, are no proper substitute for oral evidence. We see the force of that submission.
11. Putting the case in the context of the Wednesbury test to which we have referred, Mr Morton criticises the final postponement decision made on 4 June 2001, first under the heading of irrelevant factors taken into account. Here he submits that the use of the word "indefinitely" in the Chairman's reasons is plainly inappropriate; it is not what the latest medical evidence says.
12. Pausing there, we think that that is a semantic rather than a substantive point. We understand the Chairman to have taken the view that it is not in the interests of justice generally, and in the interests of the parties in this case, for there to be an open-ended adjournment, dependent upon Ms King recovering her health sufficiently to give evidence.
13. Mr Morton says that he cannot, on behalf of his clients, expect that there should be an open-ended adjournment, but submits that a prognosis will become available on Dr Weadick's most recent letter, at the end of July of the beginning of August, and if at that stage there appears to be no reasonable prospect of Ms King being fit to attend the Tribunal in the foreseeable future, then at that stage the case would have to be relisted. If that course were taken, it seems to us that a four day hearing would not be relisted, bearing in mind the number of cases passing through the Employment Tribunal, until early next year at best.
14. Secondly, he submits that the Chairman was wrong to say that justice to both sides requires that the case should, if necessary, proceed without Ms King because it is not in the Respondent's interest for the case to proceed in that way.
15. Thirdly, he draws attention to the Chairman's observation that it is not in the interests of either side that more time should go by before the hearing on the chance that, at some unspecified date in the future, Ms King may be well enough to give evidence. He repeats his earlier submission about the need to fix the date if it appears that there is no realistic prospect of her being fit to give evidence in the foreseeable future.
16. Further, he submits that the Tribunal failed to take into account relevant factors. Although the Applicant's objection to an adjournment is a relevant factor, the Chairman failed to take into account delay which had already occurred and which was attributable to her in pursuing her internal grievance which was eventually put before Mr Tagg.
17. We have considered each of the submissions with care, but we are not persuaded that they establish a failure of the requirements of the Wednesbury test. It is always a difficult balancing exercise for a Tribunal Chairman, faced with a perfectly legitimate application for an adjournment, as this was on the one side, and legitimate objection by the other party on the other side, who is anxious to get on with her case.
18. We find ourselves in the position, whatever view we might have taken as an Employment Tribunal, that we are unable to say that the conclusion reached by the Chairman in this case is one that is properly to be described as perverse, or one which takes into account irrelevant factors or fails to take into account relevant factors. In these circumstances we can discern no error of law in the Chairman's approach; consequently this appeal must be dismissed.