United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR S MIRESKANDARI Solicitor Tehrani & Co Solicitors 21 Gloucester Place London W1H 3PB
For the Respondent	MISS J LEWIS (of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street London SE11 4DS


 


JUDGE PETER CLARK

1. We begin with the history of this matter, presently proceeding before the London (Central) Employment Tribunal.
2. The Applicant, Ms Amina Nasrallah, commenced employment with the Respondent Company on 1 August 1980.
3. On 25 September 2000 she signed and dated an Originating Application (the first complaint) alleging that the Respondent had failed to comply with its obligations under Section 10 of the Employment Relations Act 1999 to permit her to be accompanied to a grievance hearing by her chosen companion, Mr John Geleit, an official of her trade union, the GPMU, That complaint was drafted with his assistance.
4. On 3 October 2000 she resigned from the employment and on 4 October she presented the first complaint to the Employment Tribunal. That was followed by a second complaint, presented on 23 October, alleging constructive unfair dismissal.
5. On 27 October the Respondent entered a Notice of Appearance resisting the first complaint and on 16 November a Notice of Appearance resisting the second complaint. At that stage the Respondent was represented by solicitors, Wedlake Bell. The Notices of Appearance were settled by Counsel, Mr Simon Devonshire.
6. By an Order dated 17 November both complaints were consolidated. The combined cases were then listed for substantive hearing on 4 - 5 June 2001.
7. On 21 December 2000 the Respondent's present solicitors, Tehrani & Co, filed notice of acting in succession to Wedlake Bell with the Employment Tribunal.
8. The Applicant's then representative, Mr Geleit, applied for a postponement of the hearing fixed for 4 - 5 June because he would then be on holiday. The Respondent's new solicitors were asked for their response to that application on 23 June 2001; they consented, accordingly the June dates were vacated.
9. On 5 February 2001 the Tribunal sent out a listing notice, fixing the new dates of hearing for 25 - 27 July.
10. On 7 March the Respondent's solicitors wrote to the Tribunal requesting a hearing date after September because their witnesses would be unavailable due to the summer holidays.
11. On 12 March the Respondent's solicitors wrote to the Applicant's representative requesting disclosure of specific documents. There has been no application by the Respondent for an Order for disclosure against the Applicant.
12. On 5 April a Chairman refused the Respondent's request for a postponement of the July hearing dates, due to "insufficient reasons". In particular it was said that the Respondent had not provided the names of the witnesses, what evidence they could give; and the relevance of that evidence to the issues in the case. The Respondent's solicitors then wrote to the Tribunal giving details, but without naming the witnesses.
13. On 14 April the Applicant's new representative, the North Lambeth Law Centre, wrote to the Respondent's solicitors, indicating that they were not happy with the way in which the Originating Applications had been drafted by Mr Geleit. They describe them as badly particularised. They indicated in that letter that they would provide further particulars on a voluntary basis in due course, and they observed that the second claim was for unfair dismissal, by way of a constructive dismissal, on the basis of the normal unfair reason/procedure or for trade union membership/activities.
14. They added that:

"there appeared to be references to race and or sex discrimination within the body of the ET1/grievance letters. We will seek instructions as to whether these matters are raised by way of background only."

15. Dr Mireskandari, who has had conduct of this case on behalf of the Respondent for the past six months, tells us that he understood that there was a potential application for an amendment to the Originating Applications in the offing, and he indicated to the Applicant's representatives that if such an application was made, he would oppose it.
16. Further attempts were made by the Respondent to obtain a postponement of the July dates, but on 30 April a Chairman, through the Tribunal administration wrote back, again, refusing the request for postponement because he said that the Respondent's reference to 15 witnesses was vague.
17. It is the Respondent's case that because the Applicant's husband still works for the Respondent, it would not be appropriate to provide the names of the witnesses. Dr Mireskandari has explained in oral submissions today that what he has in mind is that if the names of the proposed Respondent's witnesses are given to the Applicant, she, either herself or through her husband, would in some way interfere with those witnesses and either attempt to dissuade them from giving evidence or persuade them to give false evidence. We should say straightaway that Dr Mireskandari was unable to provide any evidence for that serious allegation.
18. On 21 May the Respondent wrote again, requesting a postponement, and on 31 May a Chairman replied, again refusing that request for the same reasons as before. It is against that particular Order: [the postponement Order] that part of this appeal is directed.
19. On 1 June a Chairman directed that the Respondent should, on or before the 8 June, provide a list of documents on which the Respondent intended to rely, and by a further letter of that date, directed that a trial bundle should be prepared by 15 June, and that witness statements should be exchanged between the parties by 22 June. Against those directions, ordered on 1 June, the second part of this appeal is brought.
20. Miss Lewis, on behalf of the Applicant submits that in the absence of an error of law being made out in an interlocutory appeal we have no power of general review of Interlocutory Orders made by Tribunal Chairmen. We think that submission is correct. She relies on the judgment of Waite J, on behalf of the EAT in Medallion Holidays Ltd v Birch [1985] ICR 578 departing from the approach taken by Mr Justice Nolan's division in British Library v Palyza [1984] ICR 504. The approach in Medallion Holidays was expressly approved by the Court of Appeal in Ashmore v British Coal Corporation [1990] IRLR 283. Thus we look for an error of law in the approach of the Chairman, who made the Postponement Order and the Directions Orders under appeal.
21. Dealing first with the Postponement Order. It is quite clear that it is necessary for an Appellant to show that the Order was made in a sense that is Wednesbury unreasonable: that is that the Chairman took into account irrelevant factors, failed to take into account relevant factors, or otherwise reached a perverse conclusion. We take that principle of law from the Court of Appeal Decision in Carter v Credit Change Ltd [1979] ICR 908, particularly Lord Justice Stephenson at page 918.
22. We are unable to discern any error of law in the Chairman's approach to the question of postponement. First we note that this was not the first refusal, but appears to have been the third. Since 7 March, the Respondent's solicitor has been attempting to obtain a postponement of the date fixed for 25 - 27 July. The basis for the application is that the Respondent intends to call some 15 witnesses, if not more, and they will be unavailable during the summer holidays. The Respondent was specifically directed to provide the names of those witnesses.
23. That direction was deliberately not complied with by the Respondent, for a reason which we find wholly uncompelling. That is to say that somehow the Applicant's side would interfere with those witnesses or some of them, there being no evidence to support that allegation.
24. In these circumstances, we think it hardly surprising that having failed to comply with that direction, the Chairman refused the application on the third occasion. But we do not need to go that far. The question for us is not whether we would have granted the postponement, but whether the Chairman erred in the exercise of his wide judicial discretion in making that Order. We do not think that he did. In particular, the fact that the Respondent consented to the other side's application for a postponement back in January of this year, does not mean that an application by the Respondent must necessarily also be granted in a spirit of reciprocity.
25. Dr Mireskandari submits that the Applicant has shown no prejudice if the hearing is postponed until September. We do not accept that submission; it is in the interests of all parties that litigation is brought to a hearing as soon as properly practicable, but there is a wider consideration in the administration of justice in the Employment Tribunal system. The number of complaints made to Employment Tribunals in England and Wales now exceeds one hundred thousand per annum. The Tribunals sit through the summer holiday months, in order to try and keep down the backlog. If parties simply were granted an adjournment because it was inconvenient to hold a hearing during the summer holiday season, that would increase the delay suffered by all litigants. In these circumstances, we dismiss the appeal against the refusal to postpone the hearing from 25 - 27 July.
26. That leaves the Directions Orders made on 1 June. We are now told that, perhaps as a result of this appeal, the Tribunal has put back the timetable so that the Respondent is not required to produce its list of documents until 20 June. In these circumstances, it seems to us that the appeal is rendered largely academic.
27. However, treating it as a live appeal, we dismiss it. It seems to us that having had conduct of this case since January the Respondent's solicitors ought to have at least prepared a list of the documents on which their clients intend to rely. We are not impressed by the argument that because on 14 April the Applicant's representative indicated that there might be an application for amendment, that that meant that no preparation need be made by the Respondent.
28. Finally, and for the avoidance of doubt, we reject the suggestion in a letter from the Respondent's solicitor to the Employment Tribunal, dated 6 June 2001 that the Applicant's representative deliberately sought to mislead by sending a letter dated 29 May to the Tribunal, not sending a copy to the Respondent's solicitor, and then claiming subsequently that they had. We find that a fanciful allegation, and one with which we shall have no truck.
29. In these circumstances, we shall dismiss these appeals.

Miss Lewis now makes an application for the Applicant's costs in the appeal. The relevant rule in the EAT Rules, is Rule 34 which provides 34(1)

"(1) Where it 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."

This was an on notice Interlocutory Appeal hearing. It follows that the Applicant responding to the appeal was entitled to attend and be represented. We have found that there was no arguable error of law in this case, and appeals to the EAT are on points of law only.

30. In these circumstances, we think that these appeal proceedings were unnecessary. Accordingly, we find that the Applicant is entitled to costs in the appeal. Ms Lewis asks for the sum of £500 plus VAT, which in our experience of such cases is a comparatively modest amount. We cannot think it will be less than that, it may well be more. In these circumstances, that is the sum by way of costs which we shall order the Respondent to pay in the appeal.