United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR IAN GATT QC & MR JEREMY LEWIS (of Counsel) Instructed by: Messrs Stephenson Harwood Solicitors One St Paul's Churchyard London EC4M 8SH
For the Respondents	MISS JENNIFER EADY (of Counsel)

SUMMARY

Practice and Procedure

Employment Tribunal Chairman, after a Case Management and Directions Hearing to delineate issues and set timetable for May hearing, delayed for three months before delivering Decision, and then imposed timetable retrospective to the Case Management Hearing: and then refused joint application by the parties for adjournment of the trial date of case remitted by the Employment Appeal Tribunal inter alia because of failure of earlier case management. Appeal allowed and May date adjourned to September/October date convenient to the parties.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the application by the Respondents by way of appeal against the refusal of the Employment Tribunal, chaired by Mrs Cook, of what was originally a joint application for an adjournment, decided on 15 March 2005, of a hearing presently fixed for May 2005. By that Decision on 15 March, notwithstanding that this was a joint application, the Tribunal refused the adjournment application.
2. I have cut short, in the end, the hearing before me (which has, even as cut short, taken something short of an hour) because I have reached a very clear conclusion with which the parties are now content; namely that this appeal should be allowed to the extent of the case in May being adjourned to come on, and it must come on, in the window between
   21 or 22 September 2005 and 21 October 2005.
3. This arises out of a Decision of this Tribunal, chaired by me, by way of a judgment given on 22 July 2004, allowing the appeal by the Respondents against the original Decision of the Employment Tribunal, on an important case of sex discrimination in which the award would be, or might be, well into six figures. We were at that time extremely concerned about the way in which the tribunal hearing first time around had been carried out, and the extent of our concerns are set out in full in that judgment. Notwithstanding considerable heart-searching, and after hearing submissions from both sides, and after delivering a reasoned judgment, which, as Miss Eady says, has now been reported, on the question as to what principles ought to be considered in relation to remission to the same or a different tribunal, we concluded that the matter should be remitted to the same Tribunal. But we expected, and hoped, that that Tribunal would now operate conscious of the very considerable problems that had been caused in respect of the way in which the matter had been dealt with at the first hearing; which largely revolved around failures in respect of case management and failures in respect of rushing the timetable for what was clearly a very detailed and significant case, of great importance to both parties, and rushing the case quite unnecessarily.
4. The parties were in dispute about the precise ambit of the issues to be resolved at the remission; but one thing that is clear is that they have both acted extremely co-operatively, in response to the Employment Appeal Tribunal judgment, in cutting down the ambit of the issues to be heard at the remitted hearing: whereas at the first hearing, perhaps because of the failures of case management by that Tribunal, the ambit of the dispute ranged enormously widely, such that the closing submissions (which, for reasons set out in that judgment the Tribunal did not give itself the opportunity to read, notwithstanding having imposed an inappropriately short timetable) ran to well over 100 pages on one side, and almost that on the other.
5. The issue now has resolved itself down considerably to the question of referrals, so far as direct discrimination is concerned, and then there is a separate issue on indirect discrimination by reference to part-time working. However, even within the issue of referrals, there needs to be, and must be, proper case management in relation to precisely what referrals are going to be the subject matter of attention, and the basis upon which a failure to refer a particular case can be said to amount to sex discrimination.
6. That was the background to the hearing on 20 October, by which time there had also been a slimming-down, by virtue of the same co-operative attitude between the parties, to which I have referred, in respect of the elimination of other respondents from the remitted hearing. The ambit was relatively short between the two parties, but nevertheless important; and it related to precisely the scope of the referrals issue, and precisely the timetable to be adopted in order to render triable a case which was to be fixed, in the end, for May.
7. Notwithstanding the hearing taking place on 20 October, and it being to be hoped that an extemporare judgment could ordinarily have been given at such a hearing, there was, for perfectly understandable reasons, a desire by the Chairman to raise a question of this Tribunal, to resolve what the Chairman, at any rate, saw as uncertainty in relation to the consequences of our judgment. I responded, within a very short period of receiving a letter from the Chairman of the Tribunal, by letter dated 8 November 2004, with an answer which has not been sought to be further challenged or described as uncertain.
8. Notwithstanding that, there was no response whatever by the Chairman to queries, complaints and requests by one party, if not both, as to the outcome of the hearing, or the resolution by the Tribunal of the various issues and the orders to be made; and eventually a Decision was delivered on 21 February 2005. In the recent Court of Appeal decision of
   Bangs v Connex South Eastern Ltd [2005] IRLR 389, the views of this Employment Appeal Tribunal were fully upheld and approved in relation to the requirement of employment tribunals to give speedy judgments in relation to substantive cases; and it was concluded that a period of up to three and a half months would be, save in very exceptional difficult cases, the maximum period which would be allowed for the passage of time from the end of a hearing to the delivery of judgment by an employment tribunal; and that in easy cases it should be very much shorter than that.
9. In the circumstances that this was simply an interlocutory hearing on case management, it is extraordinary that a period of nearly three months should be taken up before the judgment should be delivered, and that when it was delivered (a) it should be unexplained and (b) it should purport to make a retrospective order, with dates running from the original hearing date, when there had been no agreement between the parties as to at least some of the issues, and certainly as to the precise timetable. It is quite inappropriate for that kind of delay to occur; and when it is forthcoming (a) not to be explained and (b) to impose what appears to be, on the face of it, an inappropriate timetable.
10. The Tribunal appears to have concluded, wrongly as it seems, that the parties had been operating on some basis or other since October, notwithstanding the unagreed and unordered nature of the timetable and of the issues. Of course the parties had been working towards the May date, but I accept the submissions of Mr Gatt that it was not possible, or sensible, given the sensitivity of this case, for the case to have been anywhere near prepared as it would have been, if these Orders had been laid down in October. In any event, it was the Claimants themselves who made the application for an adjournment on 15 March, supported by the Respondents.
11. The Tribunal ought, in my judgment, plainly to have granted that adjournment in respect of a delay caused wholly by the Employment Tribunal, and not the fault of the parties at all.
12. The Respondents renewed their application for an adjournment on the 18^th, by way of an application for Review of the 15^th, although by this time, for understandable reasons, the Claimants now sought to stand on the 15 March Order. That too was refused. I am satisfied by Mr Gatt that this case requires considerably more practice management before this hearing can be ready; and in particular there needs to be argument about whether a Schedule of the referrals, which has been served by the Claimants, is sufficient. It is quite inadequate either to assume that it is sufficient, as the Tribunal appears presently to have done, or to adjourn the question of consideration of the appropriateness of the Schedule to the first day of this very complicated hearing. That is not what case management is about.
13. In those circumstances, after consulting Mr Latham, who has undertaken to assist in securing the availability of the Tribunal, so far as he can, I order that this case come on between 22 September and 21 October, and not in May, and recommend that one of the days in May – that was presently fixed for the hearing – be used for the necessary interlocutory case management hearing to resolve issues on the Schedule.
14. There is an application by the Respondents for a review or variation (out of time under Rule 33, but plainly, because it is based on changed circumstances, that would not stand in their way) to seek a variation of the Order we made in our judgment that this returns to the same Tribunal. Shaken though my confidence is by what has occurred since, I would not, at this stage, be minded to do other than to express the continuing hope that this Tribunal will indeed exercise the usual professionalism of tribunals in relation to how it carries out its task in respect of which, as we said in the judgment, there is much to do. With the non-opposition of the Claimants, the Respondents have adjourned their application for such review, and I welcome that, on the basis of the hope, which we all share, and I welcome the spirit of co-operation which again has been today visible between the two parties, that this now can be rendered sensibly triable, though not by May, by September; and I hope that all these matters are now put behind the parties, and indeed put behind the Tribunal, and that this can now go forward as it should, in order to resolve what are still sensitive and difficult remaining factual issues for the hearing.
15. In those circumstances I agree to the application to vary being adjourned, but otherwise allow the appeal on the basis I have described.