United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE J McMULLEN QC:

1. This case is about the fair handling of Employment Tribunal proceedings. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent. It is an appeal by the Respondent in those proceedings against a decision of an Employment Tribunal sitting at Thornaby on Tees, Chairman Mr R.S. Drake registered with Extended Reasons on 11 January 2002. Neither party was represented, although both parties had had assistance from legal advisers in the preparation of the case.
2. The Applicant claimed unfair dismissal, unlawful deduction of wages, wrongful dismissal and notice pay and sex discrimination following her absence on maternity leave and return to work. The Respondent denied the claims.

The issue

3. The Tribunal defined the issues in paragraph 1 of its reasons and went on to consider the application of the Employment Tribunal Rules in the treatment of the Respondent, which had breached its earlier directions.

The legislation

4. The legislation relevant to the appeal is the power of the Tribunal to make orders and directions, subject to the overriding objective in Regulation 10 of the 2001 Rules.

The Decision

5. The Tribunal found that the Respondent had made unlawful deductions from the Applicant's pay and awarded her £800.60. It dismissed her unfairly and the Tribunal awarded her £6,273.00. It discriminated against her unlawfully on the grounds of having exercised her maternity rights, for which the Respondent was ordered to pay her £3,000.00, as compensation for injury to feelings.
6. The Respondent appealed against those decisions and also contended that it had not had a fair hearing. Directions in this case were given by His Honour Judge Peter Clark and Members at a preliminary hearing on 27 September 2002, sending this case to a full hearing on three points: fair hearing, calculation of statutory sick pay and loss of earnings for one month.

The parties

7. It is not necessary for us to recite the circumstances of the claims, because we have decided that the handling of the proceedings was irregular and drew down upon the Tribunal a legitimate criticism that it may not have appeared to be impartial. The relevant test is, of course, that contained in Porter v Magill [2002] 2 AC 357 HL, 494 paras 102-3 per Lord Hope, so as to indicate how the proceedings would appear to a reasonably informed objective bystander. The circumstances are the subject of an exchange of evidence. Mr Malcolm Slatcher has sworn an affidavit giving his account of what occurred, to which the Chairman has responded.
8. The principal claim made by Mr Slatcher is that the Tribunal was wrong to shut him out of the proceedings by a debarring order and/or to continue the proceedings in the way that the Chairman did. It must be noted that the complaint is against the handling of the proceedings. Of course, the decision and the objective running of the proceedings is a matter for all three members and we take the criticism to be levelled at all three, although the Chairman, by his duty to conduct the case fairly, is obviously the recipient of many of the criticisms.
9. The Tribunal had previously ordered an exchange of witness statements; this had not occurred. There was an application by Mr Slatcher to postpone the hearing, because Mr Slatcher was due to be absent on business. He had failed within time to make an application for an extension of time, either as to the postponement or as to the service of witness statements. The Tribunal therefore found that he was in default of the Tribunal's order made on 3 August 2001. It then said this:

"The Tribunal considered his submissions but concluded that in light of the fact that he was aware of what the consequences would be if the statements were not exchanged, that it was not appropriate to permit evidence by way of written statement to be adduced today. The Chairman took into account the fact that in any event the respondent's case was set out comprehensively in both the notice of appearance and in the evidence documents. On consideration the Tribunal nonetheless permitted Mr Slatcher to undertake cross examination of the applicant and the Tribunal itself carried out extensive examination of the applicant, to the extent that the Tribunal exerted every possible effort to be fair to the respondents in ensuring that the testimony was examined as much as it possibly could be."

The objection taken to the proceedings by Mr Slatcher is confirmed in his evidence as follows:

"9 At 10.30 am the Chairman of the Tribunal decided that it was not appropriate to permit evidence by way of written statements to be adduced at the Tribunal. The Tribunal also decided that I was not allowed to talk at all during the proceedings.

10 The Chairman did however give an undertaking to me that he would ask all the relevant questions to enable the Tribunal to establish the truth of the case.

11 This statement was given in a very condescending manner. The Chairman used the statement 'I am a solicitor, so I know more about asking questions than you do'.

12 The Tribunal continued its investigations by questioning the Applicant.

13 At 12.30 pm, the Chairman announced that the Tribunal was complete and all the relevant facts had been established. He also announced that the Tribunal would reconvene at 1.30 pm for its decision.

14 The Tribunal reconvened at 1.30 pm.

15 The Chairman immediately admitted that it had failed in its undertaking to establish all the facts.

16 The Tribunal invited me to cross-examine the Applicant.

17 I was not prepared to ask questions.

18 In each of the first seven questions asked, the Chairman interrupted me, and stopped any structured development of any line of questioning.

19 At about 1.50 pm, I gave up trying to establish the truth because of the continued interruptions by the Chairman.

20 The Tribunal then announced its decision."

10. In response, the Chairman makes clear that it had been decided that the Respondent should be debarred for breaching the earlier direction order. It had been noted informally between the parties that there would at least be an exchange by 5 or possibly 10 December and yet this had not occurred when the hearing came on on 17 December. The Chairman says this:

"In accordance with the warning in the directions issued on 4 August having been clear and unequivocal, insufficient basis had been put before the Tribunal to persuade it not to impose the sanction previously warned ie to debar the respondent from defending altogether (inter alia), and that if such sanction warnings were to have any meaning, they should be applied in appropriate cases. The Tribunal considered this to be one such appropriate case in the absence of any explanations as to why the respondents had not produced written statements."

11. Thereafter, the Chairman agrees that he did permit cross-examination of the witnesses and that he adopted the inquisitorial role as Chairman. In what we think is misnumbering of the Chairman's responses to the points made by Mr Slatcher at paragraphs 15 and 16 of his affidavit, the Chairman says this:

"16 I did not give any formal undertaking as is suggested, or say that I had failed in any form of undertaking, but I accept that I did invite Mr Slatcher to cross examine the applicant. I did this on the basis that I accepted that, although the Tribunal had adopted an inquisitorial approach in asking the applicant questions during the course of her giving evidence-in-chief, and though the respondent's case was proceeding on their documents alone, it was reasonable in the interests of justice to permit Mr Slatcher to cross examine the applicant."

17 Although it is noted Mr Slather says he was not prepared to ask questions, this was in conflict with what he then says in paragraph 18 of his Affidavit wherein he refers to questions he asked and I confirm that I noted that he did actively cross examine.

19 I accept that at 1.50 Mr Slatcher terminated his cross examination but contend that he was given every possible opportunity to continue doing so, so long as he resisted the temptation to stray off relevant issues."

12. From that exchange of evidence two points emerge. First, the Tribunal was anxious to ensure that its directions were followed. We support such an approach. The Tribunal is under a duty of case management and to observe the overriding obligation to deal with cases justly. In this case failure to exchange witness statements was obviously a serious matter, but the Tribunal does not set out the factors which it weighed in deciding upon the very serious step of debarring the Respondent for breach of its order. We have little insight, therefore, save that this appears to have been a decision to enforce the direction, without a clear examination of the balance of interests, including prejudice to both parties.
13. Secondly, the decision made was applied inconsistently. In our judgment the Tribunal is under a duty to ask such questions as are necessary in order to solve the disputes on the issues. But here the Tribunal has combined an inquisitorial role itself with a partly bilateral hearing, allowing Mr Slatcher to undertake some cross examination himself, albeit unprepared so to do.
14. It may well be, as the Tribunal Chairman says, that the Tribunal was interested in securing the interests of justice and being fair to the Respondent, but the conclusion which Mr Slatcher draws, and which we uphold as one a reasonably informed observer would draw, is that he did not have a fair hearing by reason of the compromised nature of the order. It cannot be right on the one hand to take the serious step of debarring a party, and yet to allow the party in and to conduct part of its case. That is because the proceedings must not only be fair but must appear to be fair. By way of illustration only, the Tribunal does appear to have made quite firm findings about the Respondent based upon the way in which the evidence was presented to it, for the Tribunal says at paragraph 4(e):

"The respondent chose, when they did eventually receive those sick notes, to treat them with contempt."

15. The conclusion which we have reached is that the Respondent did not have a hearing which conformed to the normal procedure of an Employment Tribunal, and which may have given the appearance that the Tribunal would not deal impartially with the evidence of the parties, notwithstanding it was receiving some of it by way of a debarred Respondent.
16. In those circumstances it is unnecessary for us to deal with the two aspects of law which Judge Peter Clark identified, and we will remit the matter to a differently constituted Employment Tribunal to be reheard.
17. In order to avoid any further difficulties we ourselves will order the exchange of the witness statements between the parties to take place 14 days from the sealed date of this order. This appeal is allowed.