United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR L DAVIES (Solicitor) North Lambeth Law Centre 14 Bowden Street Kennington London SE11 4DS
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR RECORDER LANGSTAFF QC

1. This is an appeal from a decision of the Employment Tribunal sitting at Ashford. Extended Reasons for that decision were given on 11 February 2000. The subject matter of the case may be thought to have a resonance of age discrimination, but as the hearing has developed it is plain that the appeal is in essence a procedural one and it might be reduced to the single question, whether or not the Employment Tribunal had an obligation under the law which bound it to adjourn the case of its own motion in the circumstances which arose. That requires an examination of the background circumstances.
2. The Background

The Employment Tribunal held that it had no jurisdiction to hear the complaint brought by the Appellant that he had been unfairly dismissed. The reason for their doing so was that they considered that they were precluded from jurisdiction by the provisions of Section 109(1) of the Employment Rights Act 1996. That provides, so far as material:

"Section 94 [that is the right to complain of unfair dismissal] does not apply to the dismissal of an employee if on or before the effective date of termination he has attained –

(a) in a case where –

(i) in the undertaking in which the employee was employed there was a normal retiring age for an employee holding the position held by the employee, and

(ii) the age was the same whether the employee holding that position was a man or a woman,

that normal retiring age, and

(b) in any other case, the age of sixty-five."

The Tribunal found that Section 109(1)(b) was applicable in the circumstances of this case. It went on however, to declare that the Respondent had unlawfully deducted the total sum incorporating payments in lieu of holiday leave which had not been paid under the Working Time Regulations 1998 of £1,204.69.

3. The Appellant appeals in respect of the failure of the Tribunal to hold that it had jurisdiction. It is common ground that the Appellant was over sixty five when he began employment. He had been born on 20 March 1932. The decision to which the Tribunal came is pithily expressed in paragraph 15 under the heading 'Section 109 of the Employment Rights Act 1996':

"The Tribunal concludes that it does not have jurisdiction to hear the Applicant's claim for unfair dismissal on the authority of Barclays Bank plc v O'Brien and Dixon v London Production Tools Ltd and Another. The Tribunal is not prepared to take judicial notice of the statistics which were before the Employment Tribunal in Nash v Mash/Roe Group The Respondent in this case was not prepared to admit any facts. The affidavit of Professor Peter Elias was not before this Tribunal. No invitation had been made by the Applicant for the Secretary of State for Trade and Industry to appear in this case. On these grounds, the Tribunal had no evidence before it and thus declines to follow Nash v Mash/Roe Group.

It added that if it was wrong in that conclusion it would have found that the Applicant had been unfairly dismissed by the Respondent but it gave no substantive reasons for reaching that conclusion.

4. That paragraph condenses what had happened before the Tribunal. After a day and a bit of evidence it became apparent that there was no normal retiring age in the employment of the Respondent so that limb 109(1)(a) might be applicable. It became apparent to the Tribunal that they might be precluded from jurisdiction by means of the operation of Section 109. The Tribunal raised that concern with the parties. The immediate response from Mr Davies, who appeared before the Tribunal as he has appeared before us, was to argue that the provision itself should be disapplied. He averred that it was unlawfully discriminatory on the ground of sex. That would be to make out a case that it fell within Section 1(1)(b)of the Sex Discrimination Act 1975. That Section reads, in its material parts, as follows:

"A person discriminates …. in any circumstances relevant for the purposes of any provision of this Act if –

(b) he applies to [in this case, him] a requirement or condition which he applies or would apply equally to [in this case, a woman] but –

(i) which is such that the proportion of [men] who can comply with it is considerably smaller than the proportion of [women] who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to [his]detriment because [he] cannot comply with it."

The requirement or condition here was the age of sixty five. The argument was that the proportion of men who could comply with the requirement or condition was such that the provision had a disproportionate effect as between men and women in eliminating men from employment after the age of sixty five.

5. Mr Davies was familiar with this argument because he had been concerned in cases which raised a similar contention. At the time that the case was before the Tribunal there had been a decision by the Employment Tribunal in the Nash case which was subsequently reported at 1998 IRLR 168 and again, a decision at first instance in the case of Harvest Town Circle Limited v Rutherford. In those cases evidence had been given which established the disproportionate effect. The Tribunals had accepted that the conclusion to be drawn from that evidence was that the provision should be disapplied. There should therefore be no barrier to a man over sixty five, or for that matter a woman, claiming unfair dismissal.
6. The Tribunal faced with these submissions were addressed in respect of cases which it did not have before it. It was told of the existence, in respect of those cases, of evidence which had been prepared upon the funding or instigation of the Equal Opportunities Commission by a Professor Peter Elias, a well known and reputable labour statistician. The issue first arose at the conclusion of the evidence and before submissions. We are told that what happened was that the Tribunal indicated that it would wish to see those decisions if Mr Davies, on behalf of the Appellant, sought to rely upon them and adjourned for that purpose at shortly before twelve o'clock until after the usual luncheon period. Within that time Mr Davies sought to obtain photocopies of the relevant material. This came by fax to the Employment Tribunal machine. Whereas the two authorities came through in pristine condition, the affidavit of Mr Elias upon which reliance had been placed, in one of them at any rate, if not both, did not. The Chairman had given, in exercise of his management powers, the time for return to the Tribunal. Mr Davies returned. He asked, he tells us, for more time for the affidavit of Mr Elias to come through so that he might introduce it into the evidence and argument. At that stage the Chairman, we are told, asked the representative of the Respondent whether there was any objection to the evidence, in terms which indicated that the Respondent might wish to make and take such an objection.
7. Whereas it is not entirely clear on the material before us whether there was a formal objection as such, or an acquiescence in the Chairman's approach which was to invite such an objection, the fact is that there was no consent by the Respondent to the late introduction of this evidential material. Without it there would be no evidential material upon which to base any argument founded on disparate impact. Mr Davies did however have in the cases to which I have referred a tabular exposition of that which the statistics showed. He invited the Tribunal to treat that as evidence. The Tribunal declined to do so. Having declined to do so, and having either received the objection of the Respondent or the failure of the Respondent to agree to the late admission of evidence, the Tribunal did not wait for the receipt of the full affidavit from Mr Elias. Rather, it resolved the issue which had arisen by deciding that there was no evidential material before it properly admissible upon which it could determine whether or not there was the disparate impact for which Mr Davies, on behalf of the Appellant, was contending.
8. Mr Davies accepts that he did not at that stage ask for any further adjournment. He accepts that he did not ask at any stage for an adjournment for further or general evidence relating to disparate impact to be obtained. No one thought of the potential need for the Secretary of State for Trade and Industry to be concerned with an issue which, if it were to be decided, might be thought to have general ramifications.
9. We are faced here with the argument that the Tribunal should in these circumstances, have exercised its discretion to wait for the arrival of the full affidavit of Professor Elias. Secondly, we have a submission that the Tribunal should of its own motion have decided that it would have to adjourn in order to obtain sufficient evidence for it properly to resolve the issue of jurisdiction.
10. We do not find it necessary to resolve the question of whether the Tribunal should in fact have adjourned in order to receive the full affidavit from Professor Elias. There are powerful arguments that in circumstances such as this it was desirable they should have done so. Mr Davies points out that there had been an adjournment specifically for the purpose of enabling him within the time prescribed to obtain material which might be of assistance to the Tribunal. It was as if the Tribunal had asked to look at material and then without any apparent reason decided it need not do so. The only reason that material had not come through was a technical hitch relating to the office equipment at the Tribunal and was no fault of either party, and indeed it might be argued that the fact that the affidavit had begun in transmission gave some hope that given a little time it might come through in its full and proper glory. We have to ask what the effect would be if the Tribunal had indeed been bound to exercise its discretion to further adjourn the hearing. We bear in mind that the Chairman had specified after lunch as the time for returning. Further adjournment was then sought. If the Tribunal had determined that it should adjourn it would have received the affidavit of Professor Elias.
11. That affidavit has, since the conclusion of this case, been considered before this Tribunal in the case of Harvest Town Circle Ltd v Rutherford [2001] IRLR 599. The Employment Appeal Tribunal with the President presiding considered the table of material from the EOC summarising the effect of the affidavit. It considered whether or not that evidence was sufficient to demonstrate the necessary disparate impact in the light of the guidance that case law could give. It found four principal reasons to determine that there was no such sufficient evidence. Those reasons, which emerged from paragraphs 20-23 of the decision, are first, that the figures were mistaken in the way they were set out; second, that the pool within which comparisons were drawn was inappropriately selected; third, that the totals included those unable or unwilling to work beyond the age of sixty five; and fourthly, that the selection of the pool looked at the wrong criteria by which such a pool should for such a purpose be established. That was summed up in paragraph 24 by describing in a portmanteau phrase the 'inutility' of the figures laid before the Tribunal, observing that they could not serve the purpose for which it was intended they should be used.
12. We, for our part, have not seen and considered the detail of the affidavit of Professor Elias. We have been content, and it has not been argued that we should be otherwise, to deal with the content on the basis of that which was said about it in the Harvest Town Circle case. It follows that, even if the affidavit of Professor Elias had been secured through the fax machine, and even if it was proper to admit it into evidence despite the lack of consent by the Respondent's representative, both of which are questionable assumptions, the admission could not, on the basis of authority in this Tribunal, have secured the inference which the Appellant sought to draw from it. There would not have been sufficient evidence to make the case.
13. Accordingly, the only matter which is left for us to consider is whether the Tribunal should of its own motion have decided that such material as it had was insufficient to answer what was plainly a serious and important issue, and whether it should of its own choice have adjourned rather than proceeded to decided the case before it. Here, we remind ourselves that this was a discretion. The discretion of a Tribunal as a matter of general principle is subject to the legal principles expanded in Carter v Credit Change Ltd [1979] IRLR 361. The headnote of that case, which in our view accurately sets out the text, records that the regulations give the chairmen of Industrial Tribunals complete and wide discretion to postpone proceedings or not as they think best in the interests of justice. It goes on to say, in the relevant part:

"The decision of an Industrial Tribunal Chairman on a matter of this kind can be overturned only if it is wrong in law or if it can be characterised as perverse or if it is a decision to which no reasonable Tribunal could have come."

There is no suggestion in that case that the Tribunal not only had the discretion to decline an invitation made to it actually to adjourn but had the obligation to do so even though the question had not been raised.

14. We cannot, in general terms, say that it is obligatory upon an Employment Tribunal to adjourn proceedings which had nearly reached conclusion in order to explore of its own motion whether evidence might or might not be available which would further illuminate the issues it had to discuss. In part, this is because the Tribunal is a judicial body which is there to make decisions and findings of fact in an accusatorial process in which it is for the parties to bring the relevant evidence and arguments to the Tribunal. It is not the Tribunal's function to produce the evidence for one or other party, although there may be occasions when a Tribunal quite properly investigates and enquires and thereby uncovers facts. There is a world of difference to it being entitled in appropriate cases to do so and there being a requirement of law that it must.
15. Accordingly, we think that there can be said to be no such obligation, subject only to one argument. That is the argument which Mr Davies has put before us raising Article 6 of the European Convention of Fundamental Human Rights. He argues that by failing to adjourn the Tribunal effectively restricted the access of the Appellant to a court. He points out that had the Appellant been allowed to pursue his case he would have won it. That is what the Tribunal go on to say. Accordingly, he invites us to consider whether the Ashingdane case reported in [1985] European Human Rights Reports at page 528 is of assistance. That case, as the headnote indicates considered that:

"The right of access to a court is not absolute but may be subject to limitations at the discretion of the national authority provided these are not of such a degree as to impair the essence of the right, they are for a legitimate aim and are reasonably proportionate to that aim."

We have regard to that and to the judgment as a whole and in the particular to paragraphs 55 and 57 of the decision.

16. We can break down the relevant question into two parts. The first is whether any discretion to adjourn may, consistent with convention obligations, exist at all. The second is whether, if it does so exist, it must in particular circumstances be exercised in one direction and one direction only. As to the first, we do not think there any substantial argument that a court should have no discretion. Indeed we see as implicit in securing the rights and obligations of both parties to a fair trial that a Tribunal should indeed have such discretions provided they are exercised with a view to securing justice upon the issues before it. In an accusatorial system that necessarily means the arguments and evidence are produced by one or other party. The second question, whether in this case the discretion could only have been exercised one way, is thus to ask if the facts are so compelling that they depart from the normal and permissible rule. We do not see that they were. The Tribunal had before it a case in which the evidence was produced and arguments made. That was for the parties to do. The argument before us in essence is that the Tribunal should have produced the evidence for one party or the other. That in our view is not the function of a Tribunal in this jurisdiction. Accordingly, we do not think there is any arguable point that there was here a breach of Article 6 either on its own, as we have come to understand it, or as demonstrated to us by the authority of Ashingdane.
17. Conclusions

In conclusion therefore, we acknowledge that a Tribunal in such a position as was this Tribunal may well wish to obtain further evidence by permitting an adjournment for that purpose if sought by the parties. We do not consider that it would be improper for a Tribunal to suggest such an adjournment for such a purpose, but we cannot go so far as to say that a Tribunal is necessarily obliged to do so. Since we cannot interfere with the exercise of its discretion unless there is an error of law, and since we cannot identify one despite the assistance of Mr Davies, it follows that the Tribunal in paragraph 15 were reciting what was the case. There was no evidence before it from which it could have determined that Section 109 was inapplicable. On the face of it the Tribunal was entitled to take the view that a statute of the realm banned it. If that was to be disapplied an argument to that effect would have to be made on proper evidence. Because of what happened that evidence was lacking. There was therefore no other conclusion to which this Tribunal could have come.

18. We appreciate this has a harsh result for the Appellant in the particular case. We note however, that the argument in respect of Section 109 continues in other cases where we anticipate the evidence may be sufficient to enable a Tribunal to make a proper decision as it was not in the present case. For those reasons this appeal must be dismissed.