United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SURESH DEMAN (the Appellant in Person)
For the Respondent	MR J CAVANAGH (of Counsel) Instructed by: Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


HIS HONOUR JUDGE J ALTMAN

1. This is an appeal from the refusal of the Chairman, Mr Colin Grazin, communicated by letter of 21 October 2002 to adjourn the Applicant (Appellant's) complaint relating to unlawful race discrimination, due to commence on Monday of next week, listed for several days.
2. The grounds of the appeal are that the Chairman was wrong in law to refuse the application, as it is said to have been, based as it was on the fact that there are a number of appeals pending in these proceedings which should be resolved before the case proceeds. The Appellant has not wished to expedite those appeals, or even take advantage of the suggestion that one of more of them could be dealt with today, but points out that they need proper preparation and argument.
3. The hearing on Monday was fixed nearly six months ago.
4. The matter was reconsidered by the Chairman who is appointed to hear the case in his letter of 3 December and he deals with one of the reasons for the request, which is the allegation of bias by the Leeds Chairman, including the Regional Chairman. Be it said that there is no specific allegation outstanding against Mr Hepworth who, in any event, will be sitting with two lay members, but the Appellant wishes, amongst other things, for his case to be heard away from Leeds where he believes the Tribunal is generally biased against him and he is currently appealing in relation to that.
5. The Rules of Procedure governing Employment Tribunals provide in terms that the Chairman shall regulate his own procedure, subject to the Rules & Regulations, and it is well established that matters of what would now be called 'case management', designed for the expeditious and efficient disposal of claims, is a matter for the exercise of a wide discretion on the part of any Chairman.
6. Furthermore the appeals, which are the basis for seeking an adjournment, have not yet had assigned to them any dates for final hearing and of course, depending on their outcome, may require further appeals to the Court of Appeal. Accordingly were there to be an adjournment on Monday it would be impossible to ascertain when this matter could be relisted; indeed, it would not be possible to adjourn next week's case to a fixed date – it would have to await the outcome of these appeals. The delay would inevitably be at the very least many months and could go into a measurement of years. It has taken six months just to fix the hearing on Monday. There is no reason to believe that a 5-day hearing in the Leeds Tribunal, even if the dates of the appeals were known, could be obtained any more quickly, particularly if, as it may be desirable, it should be heard by a Chairman who has not previously dealt with a complaint of Mr Deman.
7. Furthermore, the matters of complaint are already very old, going back two years or so. It may well be that that is simply unfortunate and not a matter for which the parties (certainly not Mr Deman) is responsible. He may, as he says, have had unavoidable delays to his ability to proceed because of references to the Attorney General, but the objective fact remains that even next week witnesses are going to have to speak of judgments they made, people they saw and conversations they had a very long time ago. It is very important, no doubt, that evidence be heard quickly wherever possible.
8. All those factors, of course, point to there being no arguable ground upon which the Chairman can be said to have erred in law in exercising his discretion as he did, when on 21 October he decided that the hearing should proceed notwithstanding the appeal.
9. The matter does not end there, however, because that letter was in response to a letter of 12 October in which the Council for Ethnic Minority, representing the Applicant, simply made an enquiry:

"We would also like to know whether the Chairman go ahead with the merit hearing given the fact a number of appeals have been pending in the EAT in same matter?"

10. There is much very clearly expressed correspondence, in the bundle I have seen from the Applicant and his representative, and I read that, and I find that it meant that the Applicant was genuinely doing no more than drawing the Tribunal's attention to the existence of the appeals and asking the Tribunal to exercise their judgment as to whether the matter should proceed or not without at that stage making a formal application.
11. That in itself should be enough to dispose of the appeal from that particular letter. However, as it became apparent, after the order now subject to this appeal, that Mr Deman was actually asking for an adjournment and, as on 2 December the matter was considered again as I have already said, it is right to deal again with the merits insofar as they give rise to any arguable point of law.
12. There are a number of appeals. One is from the appeal of the refusal to transfer this case to a Tribunal other than within the Leeds region. A similar such application has already been refused and appeals from such refusal failed. This particular appeal has been before Mummery LJ (I have been told), who has dismissed it on withdrawal by Mr Deman. He has told me that that is because it was suggested to him that the same point could be taken within the existing appeal.
13. It is quite important, it seems to me, for me to consider the prospect of success of that appeal; for if there is a reasonable prospect of success in that appeal then clearly it might affect the judgment of a Chairman aware of that argument when ordering a case to proceed in the Leeds Tribunal.
14. However, I have to form a judgment on the information before me in order to see whether the Chairman can be said to have erred in law in exercising his discretion. It seems to me I should adopt, as it were, a negative test. My conclusion is that, bearing in mind the fact that these matters have been canvassed before in a similar form up to the Court of Appeal, bearing in mind that his case is listed before a new independent Chairman, bearing in mind that there may be times to criticise individual Chairmen, but no information or evidence before me that there is a sort of geographical bias, I am not satisfied that there are prospects of success that are good for arguing that the decision of the Chairman was an error of law in failing to take it into account in granting an adjournment. By expressing it in that way I believe I am asking myself the right question.
15. There is an inherent illogicality in the application, bearing in mind that one of the allegations is against the then National President of Employment Tribunals; yet Mr Deman was content, he has said today, for this matter to be listed anywhere in England other than Leeds.
16. The next matters which are dealt with in current appeals are these. There was a refusal of a witness summons against the then National President, His Honour Judge Prophet. Whether or not to issue a witness summons is a matter that is always a discretionary one and Tribunals inevitably must be able to make fairly rough and ready judgments on these matters. It is never possible, ideally, to know until after a witness has given evidence, what he or she is going to say. A judgment must be made in advance. The Tribunals are designed to deal expeditiously and fairly in a moderately summary way with issues before them. There is no evidence before me that there are such good prospects of success that the Chairman erred in failing to take that into account when refusing the witness summons.
17. There is an appeal from the refusal to permit a complaint in relation to the Social Services Department of the Respondents, going back to November 2000. There is no evidence before me – bearing in mind the fact that the application was made nearly two years after the matter now sought to be complained of – that there are such good prospects of success appealing that refusal that the Chairman erred in law in failing to take that into account.
18. Mr Deman says "well, a March 2000 claim was allowed and that is even older is an inconsistency". But if there is an inconsistency, it seems to me, that will be an interesting argument for the appeal body that eventually deals with this case but, as it appears to me at the moment, the argument cannot get much beyond saying that it is an inconsistency that has already favoured Mr Deman in allowing him to get in a March 2000 complaint.
19. Finally, there is an appeal from, or concern, about the way in which disclosure has been handled. It is not necessary for me to say much about that. Disclosure in this sort of case is always very difficult indeed. There was a direction that bundles should be agreed by July. Mr Deman says that he wrote on 14 August, followed it up by telephone calls and faxes requesting documents from earlier proceedings. The Respondents say they have no record of receiving such a request. I cannot say who is right about that but, as Mr Cavanagh points out, these are all documents that would be within Mr Deman's possession anyway and no doubt they are matters which can, if necessary and if practicable, be dealt with during next week in any event.
20. Having listened very carefully to all that has been said, it remains only for me to say this. So far as the allegations of bias are concerned, Mr Deman is quite right that I should not be encouraged to prejudge those issues which have yet to be determined by the Court of Appeal. But bearing in mind, as I have said, that the Chairman to deal with this matter is wholly independent on the face of it, and there is no basis in anything I have read to assume that there is some geographical taint (which is effectively what is alleged by Mr Deman), I have come to the conclusion that there is no evidence before me that in exercising his judgment about bias, as was specifically done by Mr Hepworth, he erred in law or took account of factors that he should not have taken account of, or failed to take account of factors that he should have taken account of. He acted well within his discretion and it is unnecessary to deal with the merits of the individual allegations of bias which will be determined in due course.
21. There is no error of law whatsoever discernable in the way in which the two Chairman, Mr Grazin and Mr Hepworth, dealt with the applications for adjournment, this appeal is dismissed.
22. I am reminded by Mr Deman that one of the appeals relates to the fact that a Respondent has been struck out of the proceedings. He is a solicitor or an associate with the solicitors acting for the Respondents. He is effectively brought in as an employee but that is not the case. Therefore there is no basis, it seems to me, for saying he was wrongly excluded. The joindure of parties or the dismissal of parties or the judgment as to whether they should be joined in proceedings or not is again a discretionary matter and I can see no error of law in relation to that either.
23. There are pending proceedings by way of appeal about which I have made no judgment. It seems to me in those circumstances that whilst I am very sympathetic indeed to the Respondents' application it would not, bearing in mind the general ethos of costs in the Employment Appeal Tribunal, be appropriate on this occasion to make an order. There will be no order for costs.