United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS H WILLIAMS (of Counsel) Instructed by: Messrs Christian Fisher Solicitors Bloomsbury London WC1A 1LY
For the Respondent	MS McLYNN (non practising barrister) Instructed by: Messrs Bates Wells & Braithwaite Solicitors Cheapside House 138 Cheapside London EC2V 6BB


 


JUDGE D SEROTA QC

1. We have here before us today the appeal of Mr Edward Murray against a Decision of the Employment Tribunal at London North that was promulgated on 16 March of last year dismissing his claim of disability discrimination. The case has somewhat of a history and has in fact been before the Employment Appeal Tribunal on at least one other occasion. The Respondent is Newham Citizens Advice Bureau. It is a charity and, as we understand it, a company limited by guarantee.
2. Recently, the company has been represented by Bates Wells & Braithwaite who became concerned about the effect of a series of disagreements within the internal management of the Respondent. They accordingly, and very properly, drew this matter to the attention of the Charity Commission. The Charity Commission initially took the view that there was nothing that need concern Bates Wells & Braithwaite, and that Bates Wells & Braithwaite were able to accept instructions in relation to this appeal from persons who claimed to be Directors, but after the matter was considered further by Bates Wells & Braithwaite, and they had had the opportunity of carrying out certain further legal research, they wrote again to the Charity Commission on 2 September.
3. The Charity Commission came to the conclusion that Bates Wells & Braithwaite were correct. This is a situation in which the Respondent had failed to hold an Annual General Meeting and as a result, although there are perhaps two sets of persons claiming or wishing to be directors, the absence of the AGM within the statutory period has meant that those persons should have retired, have in fact retired, and that the Respondent is without directors, and we have been told, without trustees as well. The position is even more difficult because, according to a letter which we have seen sent by Bates Wells & Braithwaite to the Charity Commissioners, no one knows who the members of the company are, the company books are missing and there is no copy of a register of members.
4. The Charity Commission has now come to the conclusion that it is necessary for it to make an Order under section 18(5)(b) of the Charities Act to appoint trustees, and they have in fact prepared a draft Order. That Order has not in fact yet come into force as it requires the agreement of a number of persons and while there is no reason to suppose that the agreement will not be forthcoming, the administrative details have still to be worked out.
5. Accordingly, Ms McGlyn, from Bates Wells & Braithwaite has appeared before us today and asked for an adjournment. She has made it quite clear that she is not instructed in relation to the merits of the appeal and that if we decline to adjourn this case, the Respondent's case will not be argued. We should point out that her firm, so far as making representations to the Charity Commissioners are concerned and making representations to us today, has been instructed not by the Respondent but by the National Association of Citizens Bureaux, sometime referred to as NACAB. The point, of course, that Ms McGlyn puts before us is that if we do not grant an adjournment we will cause significant prejudice to the Respondent in effectively preventing it from seeking to uphold a judgment in its favour.
6. We have had the benefit of hearing from Ms Williams on behalf of the Applicant and Ms Williams has submitted to us that in the exercise of our discretion, we should decline to grant an adjournment. She points out that there has been a significant element of delay; that, perhaps, is true. She has also pointed out that the Respondent is the author of its own misfortune. That again is true, and she has said that so far as prejudice is concerned, discrimination cases always cause a certain amount of stress. If her appeal is successful, the matter will have to remitted to the Employment Tribunal and any delay is likely to have an effect on the recollection of witnesses, and she also points out that the Applicant is a man of modest means who would obviously like to have the matter determined as soon as possible, hopefully in his favour, when he might expect to receive some compensation.
7. The matters raised by Ms Williams all, of course, have a certain force to them, but it seems to us, in weighing up this matter, that the prejudice that is going to be caused by the Applicant, by an adjournment of this matter, is quite disproportionate to the prejudice that will be caused to the Respondent by effectively denying it the opportunity of resisting the appeal. While it is true that the Respondent has, to some extent, to be regarded as the author of its own misfortune, we are concerned with the charity and it seems to us that the fact that the Respondent is to some extent the author of its own misfortune, is a matter that perhaps can be reflected in due course in consideration of the question of costs.
8. As all three members of the Tribunal have spent some time in preparing this case on the merits, we have come firstly to the conclusion, principally because it seems to us the balance of prejudice falls on one side only, that this matter should be adjourned. We will reserve this matter to ourselves and we would order that the matter be heard in the Employment Appeal Tribunal on 14 January 2003. We give that date in order to ensure that matters are dealt with, with some reasonable despatch, and that if matters have not been put in hand by that date, there is a very strong likelihood that the appeal will go unheard.
9. If that date is inconvenient to the parties, perhaps you would be kind enough to let us know now, and we will also specifically direct that the question of the costs, caused by this adjournment, should be considered by the Employment Appeal Tribunal on that date in case it comes to the conclusion that the conduct of the Respondent is such as will justify making an Order for costs.

[Counsel requests leave to check date of hearing with Chambers]

Well that week appears to us to be the most appropriate week. There may be an element of flexibility. So far as you are concerned, you are not really in a position to argue are you?

There is a limit as to how far we can go.

……

Dr McIver should provide his notes as to the cross-examination and also of the Applicant is so far as he is dealing with his medical condition.