United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant:	MR AYOADE ELESINNLA (of Counsel) Instructed by: Quantum Employment Law 45 Laleham Road Catford London SE6 2HS
For the Respondent:	MISS R THOMAS (of Counsel) Instructed by: Hammonds Solicitors 2 Park Lane Leeds LS3 1ES

SUMMARY

Postponement or Stay/Case Management

Change of representative – late request Further and Better Particulars – application for postponement of hearing dates. Refused by Chairman. No error of law.


 


HIS HONOUR JUDGE CLARK

1. This case is currently proceeding before the Stratford Employment Tribunal. The parties are Mr Chandera, the Claimant, and Royal Mail Group, the Respondent. This is an appeal by the Claimant against Case Management orders made by a Chairman, Mr M Haynes, on 20 December 2005 (a) refusing an application to postpone a Full Hearing of the matter fixed for 9 to 12 January 2006 and (b) refusing to make an order for Further and Better Particulars of the Respondent's Re-Amended Grounds of Resistance dated 21 February 2005. The Claimant's request for Particulars was first made on 15 December.

Background

2. The Claimant is a long-standing employee of the Respondent, having commenced his service on 29 August 1978. He is of Asian ethnic origin. In June 2002 the East London Parcel Centre, where he was then employed as a shift manager, was closed. Since that time he has remained employed on full pay, subject to periods of sickness. He has been put forward for some 28 jobs but has yet to be placed. On 16 July 2004 he lodged an Originating Application complaining of racial discrimination and victimisation contrary to the Race Relations Act 1976. The nature of his case, developed in Further Particulars dated 13 January 2005, is that he has not been redeployed by reason of his race and/or because of previous race discrimination proceedings brought by him against the Respondent. He names as the driving force behind his non-appointment a manager called Mr Dave Cunnington. The claims are resisted by the Respondent.
3. The Claimant was a member of and a staff representative in the trade union Amicus CMA. It seems that the union appointed well-known trade union solicitors, Thompsons, to act on his behalf in these proceedings.
4. On 13 December 2004 a Case Management Discussion took place before a Chairman, Mr J N Leonard. Both parties were represented on that occasion. Directions, largely agreed between the parties, were given for the conduct of the case.
5. It seems to me that those directions were complied with up until 23 November, when the union ceased support for the Claimant's case and Thompsons came off the record. New advisers, Quantum Employment Law Consultants, were appointed to act for the Claimant on 8 December 2005. At that stage the hearing dates in January had been fixed; Notice of Hearing having been sent to the parties on 24 August 2005. What remained to be done was an exchange of witness statements, due not later than 28 days before 9 January. A list of issues had been agreed; disclosure was complete, so far as the then representatives were concerned, and an agreed bundle index for use at the Employment Tribunal running to 390 pages was prepared.

The Orders under Appeal

6. Following appointment on 8 December, Quantum wrote to the Tribunal, complaining that Thompsons had failed to comply with that part of Mr Leonard's order requiring the parties to agree a bundle of documents containing those documents relevant to the determination by the Tribunal of the issues in the case or, indeed, to prepare the Claimant's case for trial and they sought a postponement of the January hearing. They also pointed out that Thompsons had not prepared witness statements from the Claimant's side. That application for a postponement was opposed by the Respondent's solicitors for reasons set out in their letters of 12 and 13 December. They objected in particular to a further delay in listing the case, and they cited two of their witnesses who had rearranged their schedules to accommodate the hearing dates fixed last August.
7. On 15 December Quantum wrote to the Respondent's solicitors enclosing the request for Further and Better Particulars of the Re-Amended Grounds of Resistance that had been served in February last. That wide-ranging request sought numbers of surplus managers of Asian and non-Asian origins who had and had not found alternative employment throughout the Respondent's business going back to 2002. The Respondent declined to give those Particulars voluntarily in view of the shortage of time before the date fixed for the Substantive Hearing. On 20 December the Chairman refused the postponement application, holding that it was far too late to raise complex requests for Further and Better Particulars only a month before the hearing. He referred to the Case Management Discussion in December 2004, finding that these matters should have been raised long ago.

The Appeal

8. It is well-settled, as Miss Thomas submits without dissent from Mr Elesinnla, that the Tribunal Chairman has a wide discretion in exercising his Case Management powers. It is only open to this Appeal Tribunal to interfere with such orders where an error of law is made out. That usually involves the application of Wednesbury principles, as explained by Arnold J in Bastick v James [1979] ICR 778, later approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908.
9. Mr Elesinnla begins his submissions with the proposition that the Chairman, in his short Reasons given in the letter dated 20 December, has failed to give sufficient reasons for his orders. I accept that full reasons for orders as opposed to Judgments (as set out in Rule 30(6) of the Employment Tribunal Rules and Procedures 2004) are not necessary for Case Management Orders. Equally, I accept Mr Elesinnla's submission based on the observations of HH Judge Burke QC in the case of Roeser v Commerzbank EAT/0552/05/RN paragraph 20, following the view of HH Judge McMullen QC in Mid-Yorkshire Chamber of Commerce v Cornforth EAT/0385/03, that whilst elaborate reasons for a Case Management Order are not required, some outline reasons ought to be given so that the Appellate court can see what was the basis of the Tribunal's decision.
10. So far as the short Reasons are concerned, it seems to me that they must be read in the context of the correspondence which was before the Chairman at the time. He plainly took the view that this was a case which had been case-managed since December 2004, and that for a party to raise a complex request for Further and Better Particulars only a month before the hearing date, which had been fixed as long ago as August 2005, was not a just way of dealing with this case bearing in mind the interests of both parties.
11. I am not persuaded that this appeal ought to be allowed simply on the basis of lack of adequate Reasons. In those circumstances it seems to me that Mr Elesinnla's submissions are in some difficulty. He argues that the Chairman failed to take into account certain relevant factors; in particular, the balance of prejudice to the parties; the Respondent's failure to provide full disclosure so that the Claimant can properly prepare his case, and the failures of the Claimant's previous solicitors (as he characterises them) to properly prepare his case.
12. I am not persuaded that those matters were overlooked by the Chairman in arriving at his conclusion. It seems to me that he had those matters in mind, but what struck him particularly was that a late change of representative, followed by a sweeping request for Particulars at a very late stage, was not a good ground for postponing the matter - nor was that request one which it was proper to order, bearing in mind the Case Management history of this particular case.
13. In these circumstances it seems to me that the Claimant has failed to make out any error of law in the Chairman's orders such as to entitle me to interfere with those orders, and consequently this appeal fails and is dismissed.