United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS HILL (Of Counsel) Instructed by: Rotherham Metropolitan Borough Council Civic Building, Walker Place Rotherham South Yorkshire S65 1UF

SUMMARY

15 day ET hearing postponed because of surgery of key witness, witness ordered by the Chairman.

HIS HONOUR JUDGE McMULLEN QC

1. This is an appeal against an Order by an Employment Tribunal chaired by Mr R LL Williams sitting in Sheffield on Monday 20 September 2004. The extremely long, carefully argued reasons of the Chairman were sent to the parties on 22 September 2004. The parties were represented before the Chairman by a lay representative for the Applicant and by Nick Hill, Counsel for the Respondent who appears today. The issue was whether or not a 15 day hearing on race discrimination should begin on Monday 4 October 2004 or whether the Chairman should accede to a request for a postponement.
2. The Chairman refused to accede to that. A Notice of Appeal was lodged forthwith with skeleton argument. It came before me on the sift and I ordered an expedited fast track hearing which has come before me this afternoon. The Respondent has had the advantage of putting in a Respondent's answer which I will take to be the skeleton argument for it is comprehensive and has made a number of points raised by Counsel.
3. I also heard from Mr Hill who has made submissions in relation to his own skeleton argument to the Notice of Appeal to the bundle of documents put before me and to the Respondent's answer.

The Issue

4. The central issue in this case is whether the hearing should go ahead in the absence of a witness, PC Burbeary. He is to be distinguished from Superintendent Burbeary, a female officer in the same force for there was some confusion at one stage. PC Burbeary is a relevant witness. That is clear because the Chairman himself gave a witness order at the request of the Respondent so that he could testify as to what happened at the meeting on 2 October 2004, when he and a colleague were told of the Respondent's concerns about anonymous communications in which the Applicant amongst others was suspected of being involved and which was reportedly causing distress to another of the Council employees. The reason for the application is that Mr Burbeary cannot attend. He is suffering from a kidney condition. Since the material was put before the Chairman, a witness statement has been produced by Mr Stuart Fletcher, a Solicitor employed by the Respondent who has conduct of the proceedings. He gives evidence to me that he has made attempts to find out the up to date position in respect of PC Burbeary.
5. The absence of a clear prognosis was the fact during the Chairman's decision. The up to date position now is that on the material which has been gathered by Mr Fletcher, Mr Burbeary is in intensive care for two or three days, would be in hospital for a further ten days and then will be back to work, all being well in a few months. That means that he would be available after 1 January 2005. All being well, we hope that he does recover from these procedures.
6. That is new material which is not available to the Chairman. The other part of Mr Fletcher's evidence is attempts made by him to obtain an alternative source for the evidence. I am satisfied that Mr Fletcher has taken all reasonable practical steps to obtain a substitute but in reality I accept the force of the argument made that Mr Burbeary is the key witness who must be called out of justice to the Respondent.
7. Since that was the view of the Chairman the question is: Was it within the lawful exercise of the Chairman's discretion to refuse an adjournment for a postponement when PC Burbeary's absence cropped up? I am acutely aware of criticisms made by both sides if the other, about the preparation for this case. The simple solution would have been for a signed statement from Mr Burbeary to have been produced earlier. But I accept the efforts which were made by the Respondent to try and obtain such signature on a draft statement. The fact is that he has not signed it. That would make it difficult for his evidence to be adduced before a Tribunal albeit a Tribunal is not bound by the strict rules of evidence. The key part of Mr Burbeary's evidence, however, would remain untested. He is important in this case. In my judgment, the submissions of Mr Hill, relating to the importance of Mr Burbeary, point only in one direction.
8. If this trial were to go ahead in the absence of Mr Burbeary, there would be likelihood that there would be dissatisfaction that justice had not been done. It is, of course, very important for a Tribunal Chairman, exercising his or her discretion, faced with the late application for a postponement to be fully aware both of the interests of the parties in the case and of the large queue of people waiting outside his or her door for hearings.
9. There is obviously great importance to be attached to effective case management to ensure that problems like this do not occur. However, having given full consideration to the arguments put forward by the Respondent in a Respondent's answer and to submissions made in opposition to each of them in my judgment the risk of injustice outweighs the need for an early hearing of this case. I accept in full therefore the submissions of Mr Hill, relating to the importance of Mr Burbeary and to the reasons for his unavailability and the unavailability of a signed statement from him.
10. In my judgment the learned Chairman erred in the exercise of his discretion and erred to accede to this argument. It is true that I am hearing this on more material than was available to him and I reach the opposite conclusion. There is now a much more certain prognosis of Mr Burbery's availability and there has now been exhausted alternative stratategies to get his or an alternative officer's evidence before the Tribunal since the Chairman at one stage regarded the evidence as important.
11. In my judgment that is not attenuated by the passage of time. Mr Burbeary will be required to attend pursuant to the Witness Order on him when this case is re-fixed and I will order that the Respondent's solicitor keep in touch with the Police Service and ensure that the Tribunal is kept notified of the availability of Mr Burbeary with a view to fixing a fifteen day hearing of this case in January urgently upon Mr Burbeary becoming well enough. His statement should be taken and signed as approved and I will order that to be done as soon as practical after his recovery and served upon the Applicant.
12. I make the following observations. This is likely to be a difficult case taking place three years or so after the relevant event. I do not know what steps have been taken to take advantage of conciliation or mediation. This is obviously a case where his feelings are very strong. The Employment Appeal Tribunal has a duty where it counts to promote conciliation. This case is now back before the Employment Tribunal where the duty of ACAAS under Section 21 of the Employment Tribunals Act will apply. I would urge both parties most seriously to consider some conciliated approach to the resolution of this problem, whether through conciliation or through mediation. Mediation costs money and it may well be that that money provided by the Respondent Council would be a good investment of public funds. I would very much like to thank Mr Hill and Mr Fletcher for the expeditious way in which this case has been brought on. The appeal is allowed.