United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE REID QC

1. This is the Preliminary Hearing of an appeal from a decision of an Employment Tribunal held at Stratford. The decision was promulgated on 16 August 2001. The hearing occupied the 12 to 15 June and the matter was then considered in Chambers on 27 July. By the unanimous decision of the Tribunal the Applicant's claim of unlawful race discrimination failed and was dismissed.
2. We have been treated to two different notices of appeal. One of them raises a variety of points of law on the decision itself and is signed by Counsel who appeared for the Applicant Ms Dowuona below. Mr O'Dempsey who appeared on behalf of the Applicant before us instructed under the ELAAS Scheme commended the Notice of Appeal to us but did not feel that he wished to expand on any of the grounds of appeal in it. I hope we will not be considered discourteous to Counsel who drafted the notice if we simply disposed of it by saying that we have considered it and it does not appear to us that any of the points sought to be taken disclose any arguable ground of appeal.
3. The substantive point argued before us however arising from the other notice of appeal arises in this way. Before the hearing there was an application for an adjournment on the grounds of the Applicant's ill health. The Regional Chairman ruled that the hearing would proceed, the only caveat being that if the Applicant did not attend and had cogent reasons to be put forward why then the hearing should not proceed in her absence or a further medical evidence were presented, that would be fresh material which the full Tribunal could consider. The Applicant did not attend on the first day of the hearing. No further medical evidence was adduced nor any further reasons cogent or otherwise offered as to her absence. No fresh application was made for adjournment or postponement on her behalf, her Counsel Mr Chandra indicating this was only because he did not have the material to satisfy either of the two caveats which the regional chairman had indicated. He said that his client considered the decision of the Regional Chairman binding and he therefore did not have instructions to renew the application. The result of that was that the hearing proceeded in the absence of the Applicant for the first two days. She had had the witness statements of the Respondents' witnesses in advance and, we are told, had the opportunity to talk about the content of those statements to her solicitor by telephone. We have, I think, assumed that the content of her instructions was passed on to Counsel.
4. On the third day she attended and sat beside her representative until it was clear that she had become unwell. She then left the Tribunal room and was eventually taken from the Tribunal by ambulance to hospital where it was found that she was suffering from very high blood pressure. She did not attend again on the remaining days of the hearing. The result of that was that the witness statement which she had prepared with manuscript corrections and her signature on each page was put in evidence but obviously there was no cross examination on it. The complaints that are made about this process are that this made the fairness of trial illusory because in a case of this type the impression made by the witnesses can be of great significance. There is at least one point in the decision at which the Tribunal made express reference to the evidence of another witness being tested in cross examination and accepting it and of course that she was not available either to hear the supplemental evidence in chief (if there was any) given by any of the Respondents witnesses who had not given evidence by the time she left on the third day or for her to give any supplemental evidence required in chief. Further it said that she was not in a position to put to Counsel further matters that she might have wished the witnesses to be cross examined about which might have come up in the course of their evidence. It is suggested that the Tribunal were wrong in law in that they may have felt themselves bound once and for all not to allow any further adjournment and it is suggested that they cannot be right in not allowing an adjournment at the time when there a manifest change of circumstance namely the Applicant having attended, leaving the room and subsequently being taken away to hospital. It does not appear from the Tribunal's decision that any application was made at that stage for an adjournment. But it is said that even in the absence of an adjournment the Tribunal should have of its own motion adjourned the further hearing until the Applicant's recovery given the nature of the case and given that here clearly an Applicant who was anxious to attend when physically able. It is said that it is at least arguable that the result of the Tribunal's failure to consider and then grant an adjournment meant that the Applicant did not receive a fair trial of his hearing. We do not know from the material before us what if any exchanges took place before the matter continued in the Applicant's absence after she had to withdraw owing to her illness. We do not know if any further application was made for an adjournment, whether the Tribunal raised the matter of its own motion and were told 'Yes they could carry on' or whether Counsel simply assumed that he had despite the change in circumstances no ammunition was left at that stage to apply for an adjournment. At this preliminary stage it seems to us that the matter deserves some further investigation on this narrow and limited ground. We therefore proposed to allow the appeal to go to a full hearing on the one ground as to whether the Tribunal erred in law in not adjourning the matter of its own motion or an application from the Applicant's Counsel after the Applicant withdrew ill from the hearing on the third day. It may very well be that when the matter is investigated more fully it will turn out with very good reasons why the Tribunal carried on and could be no criticisms of them there is something which just about warrants further examination. In order for that examination to take place we will require first of all an amended Notice of Appeal limiting the Notice of Appeal to this one single point; secondly, the original medical certificate placed before the Regional Chairman on the original application to adjourn; and thirdly any notes that the Chairman may have at or after the time of the Applicant's withdrawal from the hearing which deal with the question of whether or not any adjournment should at that stage be granted as a result of the change in circumstance. It may that there is no reference in the notes at all. If there is such a reference it should be supplied. In those circumstances therefore we will direct that the matter goes to a full hearing on that very limited point. We will direct it be listed in Category C. Our instinct is that it should last less than half a day but I think the practicalities are that by the time one has heard both sides and considered the decision the full hearing will last half a day.