United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Asha Hartwell Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


MR COMMISSIONER HOWELL QC

1. This is an Interlocutory Appeal by Miss Dawn Fishley against the direction given by Mr Mahoney, the Watford Tribunal Chairman sitting alone on 15 November 2001, set out in an Interlocutory order after a hearing for direction sent to the parties on 21 November 2001 at pages 4 – 7 of the appeal file before us.
2. The direction which it is sought to appeal is set out in paragraph 1 and 2 of that order. It was made upon hearing the representatives of parties, and following the breakdown of earlier directions which had been given by a previous Tribunal Chairman. The parties had not complied with those directions following an earlier directions hearing on 3 August 2001. The proceedings were a complaint of alleged disability discrimination, brought by Miss Fishley against her employers BMI Healthcare Ltd.
3. The order made by Mr Mahoney, discharging the previous Chairman's directions so far as material was as follows,

"1. The applicant is ordered to serve on the Respondent and the Tribunal on or before 29 November 2001, a statement which is to include a) all facts and matters relied upon to support her case that she is a disabled person within the Disability Discrimination Act 1995 and b) each and every reasonable adjustment, which she alleges the respondent should have made under that act. Such statement is to confine itself only to the issues relating to the applicant's complaint of disability discrimination.

2. Save for the Applicant's witness statement, the parties are ordered to serve upon each other and the Tribunal on or before 13 December 2001 the witness statements of the witnesses on which each of them propose to rely on the Full Merits Hearing"

4. Further directions were given in the remainder of the order with a view to an effective hearing into the full merits on the application, which was directed to be listed for hearing on 26 – 28 February 2002. We understand from Miss Hartnell, who appeared on a pro-bono basis on this appeal for Miss Fishley, that that remains the case: the hearing of the full merits of the application is still due to take place on those fixed dates.
5. The Grounds of Appeal against that direction, set out in a Notice of Appeal dated 26 November 2001 by the Solicitors then acting for Miss Fishley are based on a single alleged error of law, namely that,

"The Appellant complains that as a result of the above order, the Respondent will have full sight of her witness statement for a period of two weeks prior to the date on which the Respondent has been ordered to disclose it's own witness statements. The Appellant claims that the above order offends her right to a fair trial and in particular the right to equality of arms under the Human Rights Act 1998 and therefore amounts to an error of law"

6. That was supplemented in argument before us by Miss Hartnell, by saying that the decision of the chairman to make the direction he did was unreasonable in the circumstances before him which were that the Applicant's case on disability had not been spelt out with sufficient particularity to enable it to be properly answered by the Respondents.
7. The only reasonable course, said Miss Hartnell, was that he should have accepted the alternative submission made by Miss Hartnell to him at the Directions Hearing on 15 November 2001. This was that he should have made an order first for the delivery of further and better particulars of the nature of her claim, (if that was needed: Miss Hartnell explained to us that she had said that in any event, it was disputed whether such further and better particulars were required at all), and secondly following the delivery of such particulars, there then should have been a comprehensive exchange of all witness statements between the parties at the same time, in what she said should have been the normal way.
8. There is no appearance before us today by the Respondent but we have a letter dated 21 December 2001 from their Legal Adviser to the Registrar of the Employment Appeal Tribunal, pointing out that in fact the statements in question have already been exchanged between the parties and the Chairman's directions have already been complied with. In those circumstances the Respondent's Legal Adviser submits that there cannot really be any benefit in their taking part in this appeal at all and they have taken no steps by way of formal opposition in the proceedings before us.
9. Miss Hartnell agreed before us that compliance with the Chairman's directions as to the supply and exchange of the statements has already taken place and the pursuit of the Appeal before us was admittedly, as it was put in the course of argument, academic. She said that was because the listing of this appeal before the Employment Appeal Tribunal has overtaken the attempt to have the Chairman's direction set aside, and the President of the Employment Appeal Tribunal to whom two applications had been made for some form of relief to prevent the Chairman's directions having to be complied with, had (as is recorded in the papers before us), declined those applications. Therefore she had been unable to pursue the matter in any other way on behalf of Miss Fishley.
10. The first question in those circumstances for us to consider is whether it is right for this case to have proceeded as an Interlocutory Appeal at all before us today. No order we could make could possibly have any practical effect on the case and in any event, the real question, which is whether in consequence of the directions of the Tribunal Chairman there has been any deprivation of a fair procedure and deprivation of the Applicant's right to a fair trial of her case, will be much better determined after the hearing has actually taken place. Then it will be able to be demonstrated as a matter of fact whether there is any arguable ground for saying that the order of events directed by the Chairman had any adverse practical effect on her at all. We have concluded that on that ground alone we have not been satisfied that it would be right to allow this appeal to set aside the directions already given and complied with on the part of the Employment Tribunal Chairman. But secondly and in any event, having heard Miss Hartnell's argument on the substance on what she was seeking to pursue by way of appeal, we have been left unpersuaded that there was any arguable ground in any event for saying that the Employment Tribunal Chairman erred in the directions he gave.
11. It is well established that such directions given in the course of proceedings before the Employment Tribunal are a matter for the good sense and judgment of the Employment Tribunal or Chairman in exercise of the general power of the Employment Tribunal to regulate its own procedure. That is a matter of discretion: Rule 15 (1) of the Employment Tribunal's Rules of Procedure Regulations 2001.
12. In our judgment it is in the context of the application made to this Chairman an essential element of any fair procedure that the parties should be made aware of the factual case, which they have to meet. We were not persuaded that as the matter came before the Employment Tribunal Chairman on 15 November 2001, with his colleague's previous directions having not been complied with and the Originating Application not having specified the basis of the case on discrimination, there was any error on his part in requiring that to be done in the way he did. His decision to make the direction for a single statement, rather than in the form of the two documents which Miss Hartnell had suggested he should direct instead to produce the same content, was wholly within the proper ambit of his discretion, and in our judgment a sensible and practical direction for him to give. We have been unable to see that it involved any breach of natural justice or failure to comply with the requirement, now set out in the "overriding objective" in Regulation 10 of those Regulations to achieve a fair and just disposal of the proceedings in the interest of both parties. In our judgment, his decision was wholly within the proper ambit of the Chairman's discretion to direct the way in which the matter should proceed, and we have been unable to see (even if this appeal were a proper one for us to consider) that it demonstrates any error on the part of the Chairman. So for those two reasons we now dismiss this Interlocutory Appeal.