United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MISS SALLY ROBERTSON Instructed by Imran Khan & Partners 47 Theobalds Road London WC1X 8SP
For the Respondents	MR. DAVID DALY Instructed by Hackney Directorate of Law and Democratic Services, Legal Division, 3rd Floor, 298, Mare Street, London E8 1 HE


 
SUMMARY
1. The appellant sought to set aside the decision of the Employment Tribunal on grounds of (a) apparent bias of the Employment Tribunal because of alleged discussions which took place in the absence of the appellant between the respondent's counsel and the Tribunal while the Tribunal was deliberating and (b) the failure of the Employment Tribunal to grant the appellant's application for an adjournment on the first day of the hearing.
2. This appeal is dismissed because it was found after considering the written and oral evidence (a) that no meeting took place in the absence of the appellant between the respondent's counsel and the Tribunal while the Tribunal was deliberating and (b) that an adjournment was not sought as alleged by the appellant on the first day of the hearing.

 
 


THE HONOURABLE MR. JUSTICE SILBER: -

I. Introduction

3. Ms Marion Alexander ("the appellant") made complaints to the Employment Tribunal contending that Mr A Awogboro ("the first respondent") and her employers the London Borough of Hackney ("the second respondent") had discriminated against her upon the grounds of gender. She also contended that the second respondent had unlawfully victimised her because she had issued an originating application complaining of unlawful sexual discrimination. Her third complaint was that the second respondent had unfairly constructively dismissed her. The Employment Tribunal sitting in Stratford rejected each of these complaints in a decision, which together with its Extended Reasons ("the Reasons") was sent to the parties on 8 August 2003.
4. The appellant appealed and her long and detailed grounds of appeal were considered by this Appeal Tribunal at a preliminary hearing and at which she was only given permission to pursue a few of them and all but two of those grounds were later abandoned during the early stages of the Appeal hearing before us. The only grounds of the appellant's appeal, which remained after the preliminary hearing and which were not abandoned during the appeal hearing, are the allegations of first apparent bias of the Employment Tribunal ("the Apparent Bias issue"), and second a failure by the Employment Tribunal to grant her an adjournment on the first afternoon of the hearing ("the Adjournment Issue"). We will consider each of these issues in turn, but it is appropriate to add that we heard oral evidence at the appeal in the circumstance, which we will describe in paragraph 9 below.

II The Apparent Bias Issue

(I) The rival submissions

5. The appellant's case is that during the lunch break on 16 May 2003 while the Employment Tribunal were deliberating at the conclusion of the hearing but before it had delivered its decision, Miss Catriona MacLaren, who was counsel then acting for the respondents, went into the room in which the members of the Employment Tribunal were sitting and deliberating where she became involved in a conversation or a discussion with the members of the Employment Tribunal in the absence of the appellant before she returned to the respondents' waiting room. It is alleged that Miss MacLaren then said something, which led first to a loud cheer in the respondent's room, and second the respondents' witnesses leaving the Tribunal building before the Employment Tribunal later gave its decision dismissing the claims of the appellant. The appellant does not contend that this was a case of actual bias on the part of the Employment Tribunal but only that this was a case of apparent bias on the Tribunal's part because of first what appeared to have occurred when Miss MacLaren went into the room in which members of the Employment Tribunal were deliberating and second what happened when she returned to the respondents' waiting room.
6. The respondents contend that the appellant's account of events is totally incorrect. They say that not only did Miss MacLaren not have a lengthy or any private conversation in the absence of the appellant with the Employment Tribunal while it was deliberating but also first that she was not told of the outcome of the case in advance of the delivery of its decision by the Employment Tribunal, second that there was no cheering when she returned to the respondent's room and third that neither Miss MacLaren nor any of the respondents' team knew of the outcome of the hearing until the Chairman announced it later that afternoon.

(ii) The relevant legal principles on alleged bias.

7. In R (on the application of PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311,Lord Phillips of Worth Maltravers MR. giving the judgment of the Court of Appeal approved (subject to the point mentioned in the next paragraph) the judgment of the judge at first instance, who had said that the relevant principles on apparent bias to be deduced from recent authorities were:

"(a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494 [103]). It follows that this exercise entails consideration of all the relevant facts, as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid [104]).

(b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856, 862 [14]).

(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situations. "One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]).

(d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias.. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v Northern Spirit Limited (supra) 864-5 [20])

(e) the need for a Tribunal to be impartial and independent means that "it must also be impartial from an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect" (Findlay v United Kingdom (1997) 24 EHRR 221 at 224-245 and quoted with approval by Lord Bingham of Cornhill in R v Spear [2003] 1 AC 734 [8]".

8. Lord Phillips proceeded to say in paragraph [8] of his judgment that

" We would add only this comment in relation to the judge's statement that one must consider a case where unconscious bias is alleged by examining "other similar analogous situations". Lord Steyn stated that these "may arguably throw light on the problem". The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focussing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window".

9. Ms Sally Robertson, counsel for the appellants and Mr. David Daly counsel for the respondent accept that these principles are correct and that they are relevant to the present appeal and accordingly, we will therefore seek to apply them. We also appreciate that in Porter's case (supra), Lord Hope of Craighead points out in paragraph 104 of the speeches that protestations of absence of bias by the person accused of apparent bias "are unlikely to be helpful" and we will follow all those principles.

(iii) The evidence

10. There was and is a major dispute between the parties on what contact, if any, there was between Miss MacLaren and the Employment Tribunal while the Employment Tribunal was deliberating on 16 May 2003. In the light of this dispute, orders were duly made at a preliminary stage by this Appeal Tribunal requiring the appellant to serve an affidavit giving details of the alleged bias and the Chairman and Members of the Employment Tribunal were then invited to give their comments on that affidavit.
11. Both of these orders were complied with and on 3 June 2005, a further Order was made first requiring further evidence in the form of witness statements to be served with "all evidence by affidavit or witness statement to be taken in chief as read", and second for cross-examination of the appellant, her husband, Miss MacLaren and any further witnesses, who the appellant wished to cross-examine. The appellant requested that Ms Juliet Babb, a legal officer of the respondents and Ms Cynthia Walker, a social worker employed by the second respondent should attend the present hearing of this appeal in order to be cross-examined. Both of them duly attended at the hearing of his appeal and were cross-examined, as were the appellant, her husband and Miss Maclaren. The evidence of some of these witnesses also covered the adjournment issue to which we will return later in this judgment.
12. It is common ground that during Friday 16 May 2003 after final speeches had been delivered, the Employment Tribunal adjourned to consider its decision. The appellant says that she returned to the applicant's waiting room after having had lunch with her husband where she saw through the glass panel in the door to the applicant's waiting room, Miss Maclaren walk past that door. She said that she went to the door of the waiting room as she thought that it was time to return to the hearing room but that her husband joined her and he said to her that it was not then time to go back.
13. The appellant's evidence is that she saw Miss Maclaren go into the Tribunal room and then spend 20 minutes in the room before returning to the respondent's waiting room whereupon she (that is the appellant) heard a cheer coming from the room. Then the appellant said that she saw the respondent's witnesses then leave the Employment Tribunal's premises and not wait for the Tribunal's judgment. Later that day, as we have said, the Employment Tribunal duly gave its decision dismissing the appellant's claims.
14. The claimant's estranged husband also gave oral evidence in which he said that he saw Miss Maclaren walk past the applicant's waiting room towards the hearing room but he did not see her going into the hearing room although he saw her leaving that room a few minutes later. He said that Miss Maclaren returned to the respondent's room and "seconds later he heard a loud cheer come from the room".
15. Miss Maclaren gave evidence in which she said that she could not categorically state that she did not return to the hearing room but she has no recollection of doing so. She added in her witness statement which she adopted in her examination-in-chief that:

"16. I have no recollection of returning to the Tribunal room in this case. I think it is unlikely that I did so. Both parties had made their submissions and there was nothing else for me to do. In the circumstances, there would have been no reason for me to look at the papers or my notebook over the adjournment.

17. I am absolutely certain that I did not remain in the Tribunal room for 20 minutes. I have never returned to a Tribunal room during an adjournment for anything like that period of time.

18. I am also absolutely certain that I had no private discussion with any of the members of the Tribunal on the final day of the hearing or any other. I have never had such a discussion with a Tribunal member in any case with which I have been involved.

19. Had I had anything to say to the Tribunal over the adjournment, I would have been careful to both inform the Appellant and make sure that she was present when I did so. In this case there was simply no reason for me to speak to the Tribunal after the close of submissions and I did not do so".

16. Miss Maclaren also said that the outcome of the case was never communicated to her in any way prior to it being delivered orally by the Employment Tribunal in the presence of the appellant. Miss Maclaren explained that she had "a clear recollection of listening to [the Chairman] deliver the decision in this case and feeling a degree of nervousness as he dealt with each of the issues in turn". She also said that she had no recollection of cheering in the respondents' waiting room whether from the respondents' witness or from anyone else in that room.
17. Juliet Babb also said she had no recollection of any cheering and nor did another employee of the second respondents who gave evidence, namely Cynthia Walker. Juliet Babb also explained that the first occasion on which she knew of the decision of the Employment Tribunal was when it was read out by the Chairman.
18. The Chairman of the Employment Tribunal has explained in a letter dated 26 November 2003 to this Appeal Tribunal that:

"3. Doing the best that I can from my own independent recollection and having perused my notes, it has initially occurred to me that the date provided by the applicant is probably wrong and that the Friday in question was 16 May 2003. This in fact was the last day of the hearing and the morning session consisted of closing speeches on behalf of both parties. Ms Alexander gave the second address to the Tribunal and my note indicates that the proceedings then concluded at 12.50pm. Accordingly there was no adjournment period in which a meeting could have taken place.

4. Having said that, at no time during the morning session or after it was there a private meeting with counsel who represented the respondents. Indeed, I am in a position to comment that no such meeting took place during the entirety of the proceedings".

19. Both other members of the Employment Tribunal support that account of Miss MacLaren, one member, Miss Vera Clements wrote that:

" The Chairman and Members did not meet the Respondents' barrister in private during the lunch recess on Friday 16 April 2003 or at any other time".

20. Mr Robert Sier another member of the Employment Tribunal wrote to the Appeal Tribunal on 1 March 2005 stating that he had read the appellant's first affidavit and explaining that:

"I do not recall any incident that would entitle Ms Alexander to conclude a meeting was being held with the respondents without the applicant being also present. I can say no such meeting took place. I can say that neither the applicant or respondent could have prior knowledge of the tribunals decision before it was announced in public".

(v) Conclusions on Factual Dispute

21. There is obviously a substantial dispute between the evidence on the one hand of the appellant and her husband and on the other hand of the respondents' witnesses. Having considered carefully the submissions of counsel, we have each come to the clear conclusion that Miss Maclaren did not enter the hearing room during the luncheon adjournment on 16 May 2003 when the Employment Tribunal was deliberating. There are six factors, which individually and cumulatively have persuaded us that this is the correct conclusion and we will now set them out but in no particular order of importance.
22. First, the appellant's accounts in describing what she saw Miss Maclaren do while the Employment Tribunal was deliberating were inconsistent. Initially, the appellant stated in her initial grounds of appeal of 19 September 2003 that the Tribunal

"met with the respondent barrister in private during lunch recess of Friday without informing the applicant who witnessed the barrister leaving the panel chamber".

23. A similar statement was made in the second grounds of appeal in February 2004 and it is significant that in neither account is it said by the appellant that she saw the respondents' counsel going towards or into the hearing room.
24. By the time when the appellant swore her first affidavit in February 2005, her account was that she saw Miss Maclaren walking towards the hearing room and that she later saw Miss Maclaren leave the hearing room. This was the first occasion on which the appellant had said that she saw Miss Maclaren walking towards the Tribunal room and it was 21 months after the event. Even at that time, there had been no allegations by the appellant that she had seen Miss Maclaren actually walk into the Tribunal hearing room but in her second affidavit sworn two years after the hearing on 19 May 2005, the appellant said for the first time two years after the event that she " stood and watched Miss Maclaren enter the Tribunal room I was shocked. I wondered what she was doing". The appellant was unable to give an acceptable explanation for these differences in her evidence when she was cross-examined.
25. A second factor, which undermines the account given by the claimant and her husband is that the appellant's husband said that he had seen Miss Maclaren leave the hearing room while the Tribunal were deliberating but he said that at the time he was not concerned about it. So he explained that he therefore did not raise it with the Tribunal after they had given their decision. We find it very surprising that having seen the claimant's husband give evidence that he was not alarmed if not shocked by what must have appeared to him to be the very disturbing sight of counsel for his wife's opponents going to have a private meeting with the Tribunal while they were deliberating and without the appellant being present, which on the appellant's account was followed by the respondent's counsel returning to the respondent's room and later by cheering coming from that room. As we have just explained, the appellant said that she was shocked about it. But having seen the appellant's husband give evidence, we find it extremely surprising that he was not alarmed, if not concerned, by what he told us that he saw; this fact undermines our confidence in his evidence, which is the only evidence corroborating in any way the appellant's account, which as we have explained is strongly challenged by the respondents' witnesses.
26. Third, we were very favourably impressed by the evidence of Miss Maclaren to the effect that she would have had no reason to go back into the room in which the Tribunal was sitting during the lunch break because all the submissions had been completed and she realised that there would not be any time for any discussion on remedies on that day. It seemed to us to be sensible and it had the clear ring of truth about it. She emerged from a skilful cross-examination with her evidence still seeming clear and accurate.
27. Fourth, we found cogent and impressive the specific evidence of Miss Maclaren and of Juliet Babb that the first occasion on which they knew of the result of the hearing before the Employment Tribunal was when the Chairman gave the oral judgment later that afternoon. We also accept as correct the evidence of Miss Maclaren that she sat nervously listening to the Employment Tribunal giving each of its conclusions in turn in its judgment. Both Miss Maclaren and Ms Babb were very impressive witnesses, whose evidence we unhesitatingly accept as correct.
28. Fifth, and significantly in a witness statement dated 30 August 2005, the claimant said of the hearing before the Employment Tribunal "due to my ill health at the time, I have only a partial recollection of what I said at the hearing". This frank comment does suggest that the claimant's recollection of events is unlikely to be a reliable account of what happened at the hearing. It confirms our view from listening to the appellant giving evidence and reading her witness statements that her recollection of what occurred at the Employment Tribunal is inaccurate.
29. Finally, the appellant is an articulate lady, who even though she was suffering from ill-health at the time of the hearing, would not have been reluctant to complain if she thought that she was had been unfairly treated but having heard her both give oral evidence we find it difficult to understand why she did not complain to the Tribunal immediately after it had given its decision about the alleged private meetings, which she said had taken place between Miss Maclaren and the Tribunal a little earlier that day during the lunch adjournment. As we have said, the appellant said in evidence that she was shocked when she saw Miss Maclaren enter the hearing room but she did not complain at all on that day. This does not inspire confidence in her evidence.
30. For all those reasons, we have concluded that Miss Maclaren did not enter the hearing room during the lunch break or while the Tribunal were deliberating on Friday 16 May 2003. For the avoidance of any doubt, we want to make it clear that we all have come to the conclusion that there is no truth whatsoever in any of the criticisms made by the appellant of the behaviour of Miss Maclaren or the Employment Tribunal. Thus the apparent bias appeal must be dismissed.

III. The Adjournment Issue

(1) Introduction

31. The essence of the appellant's complaint is that on 12 May 2003, which was the first day of the hearing before the Employment Tribunal, a time came when she requested an adjournment. The applicant said that she was acting in person and that she had spent much of the first morning of the hearing producing an amalgamated and integrated bundle of documents. Her evidence was that she felt unwell and that she requested this adjournment explaining to the Tribunal that she felt unwell, that her medication had recently been increased and that she felt confused about what was going on. The appellant explained that the additional stress of dealing with the documents and duplicates and integrating the two bundles into a consolidated bundle on the first day of the hearing made her feel confused and unwell so that she had requested an adjournment. According to the appellant, the Chairman of the Employment Tribunal responded to her application by saying "Mrs Alexander this case has been adjourned once before" and then refusing the application.
32. Ms Robertson contends that the failure on the part of the Employment Tribunal to grant the appellant's request for an adjournment when coupled with failure of the Employment Tribunal to give any reasons for the refusal of the adjournment application means that the appellant did not have a fair hearing with the result that first her appeal should be allowed and second that this matter should be remitted to an Employment Tribunal. The defendants resist this application but it is common ground that the hearing in front of the Employment Tribunal was not adjourned. As we have explained, both counsel cross-examined the witnesses on these issues.
33. Thus, the issues that will now have to be considered are first, whether the appellant asked for an adjournment, second whether any decision of the Employment Tribunal to refuse to grant the appellant an adjournment means that the appellant did not have a fair trial, and third if we consider that the appellant did not have a fair trial, what should now be done about it. We will consider each of these matters in turn.

(ii) Did the appellant request an adjournment?

34. As we have explained, the appellant contends that she requested an adjournment but that it was refused. The Chairman of the Employment Tribunal was asked for his recollection of any such application and he duly explained in a letter of 10 March 2005 that first that he had "no independent recollection" of the appellant making an application to adjourn and second that he had no note of such an application. The Chairman has also supplied his contemporaneous notes of the proceedings to this Appeal Tribunal and they do not contain any reference express or implicit to any application by the appellant for an adjournment or to any refusal of any such application.
35. Ms Maclaren said in her witness statement that she had no note of such an application for an adjournment being made but that she had "some limited recollection of it being made". When she was giving evidence to us, Ms Maclaren said first that she did not have a clear recollection of the application for an adjournment, second that normally but not invariably she would have made a note of such an application especially if the application had been of any length and third that she has no such note. So her evidence on this issue was equivocal.
36. Ms Robertson and Mr Daly both agree correctly in our view (i) that the burden of proving that an adjournment was requested is on the person contending that such an adjournment was sought namely in this case, the appellant, (ii) that there is evidence from which this Appeal Tribunal could contend that the claimant applied for an adjournment but (iii) that this Appeal Tribunal has to determine whether or not an adjournment was requested by the appellant in the light of all the evidence.
37. We have considered with care the evidence and each of us has concluded that: no application for an adjournment was made and there were four reasons, which individually and cumulatively led us to that conclusion. First, as we explained when considering the apparent bias issue, we have found that the appellant had a seriously incorrect recollection of what happened when the Employment Tribunal was deliberating on the last day of the hearing. This conclusion means that we have grave doubts on the reliability of the appellant's recollection of the events, which occurred during the hearing before the Employment Tribunal over two years earlier. Second, as we have already explained, the appellant in a witness statement dated 30 August 2005, said of the hearing before the Employment Tribunal "due to my ill-health at the time, I have only a partial recollection of what I said at the hearing". Although frank, this comment further seriously undermines our confidence in the evidence of the appellant on this issue, which necessarily must refer to what was said or to was not said by the appellant in the form of a request for an adjournment.
38. Third, the Chairman of the Employment Tribunal supplied his commendably detailed contemporaneous notes of the proceedings, which record among other things the nature of many of his exchanges with the appellant but there is no indication or suggestion of any sort whatsoever that the appellant requested an adjournment. This supports our conclusion that the appellant's memory was playing tricks on her when she recalls incorrectly in our view a request for an adjournment.
39. Finally, having seen the applicant give evidence, we are bound to say that we found her demeanour in the witness box did not inspire us with confidence as she was a very unconvincing witness probably because of what she describes as "my ill-health at the time" of the Employment Tribunal hearing in May 2003 In reaching this conclusion, that an adjournment was not sought by the appellant, we have not overlooked the evidence of Miss MacLaren but it was equivocal and it does not assist the appellant when considered in the light of the four factors to which we have just referred. As we have found that the appellant did not request an adjournment, the appeal on the adjournment issue must fail but as we heard evidence and listened to submissions on other aspects of this issue, we will deal with these other aspects although much more briefly than we would have done if they had related to issues which remained still live. From now on in this judgment, we will be assuming (contrary to our finding) that the appellant did request an adjournment on the first day of the hearing.

(iii) Does any decision of the Employment Tribunal to refuse to grant the appellant an adjournment mean that the appellant did not have a fair hearing?

40. It is clear that an adjournment was not granted and the appellant complains about it. Ms Robertson contends that to refuse to grant the appellant an adjournment even overnight on 12 May 2005 meant that the appellant did not have a fair hearing. She attaches importance to the background to the application for an adjournment because she says that the Chairman of the Employment Tribunal at the hearing in May 2003 was the same Chairman, who in October 2002 had postponed the hearing of the appellant's application until 12 May 2003 on the basis of among other matters the "appellant's obvious state of distress". The Employment Tribunal in its Determination of that adjournment application in October 2002 pointed out that they had received a letter from the appellant's general practitioner, which indicated that the appellant was very depressed and that she was unable to attend a hearing for at least a month. On that basis, the hearing in October 2002 was adjourned.
41. Ms Robertson points out that in Teinaz v London Borough of Wandsworth [2002] IRLR 72, Peter Gibson LJ had explained that:

"I would make some general observations on adjournments. Every Tribunal or the Court has discretion and the exercise of such a discretion to grant an adjournment and the exercise such discretion, going as it does to the management of a case, is one with which an appellant body is slow to interfere and can only interfere on limited grounds as has repeatedly been recognised…. Although an adjournment is a discretionary matter some adjournments must be granted if not to do so amounts to denial of justice. Where the consequences of the refusal are severe such as where to lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment".

[20]

42. She submits that this showed that the Employment Tribunal erred in refusing to grant an adjournment as does the reasoning in Andreou v Lord Chancellors Department [2002] IRLR 728 of Arden LJ, who said at paragraph 65 that:

"where party seeks an adjournment on the basis of stress or anxiety, he should be expected to prove details of the symptoms, the causes, severity and so on, or to explain why those details can not be supplied to the tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to Employment Tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce recourses".

43. In this case, the appellant's case is that she only became ill as a result of what was required of her on the first morning of the hearing when she had to organize all the documents in the case into a composite bundle. According to the appellant, the only reason given by the Employment Tribunal for refusing the adjournment was that the appellant had been granted an adjournment before. If that was said, we do not consider that to be an acceptable reason, because what was required of the Employment Tribunal was to consider the interests of both the respondents and the appellant in order to determine whether it was fair to grant an adjournment until at least the following morning so as to permit the appellant then to adduce medical evidence. In our view, if contrary to our conclusion that an adjournment was requested on the first day of the hearing, then by refusing an adjournment on the grounds that an adjournment had been granted on an earlier occasion shows that the Employment Tribunal did not consider the interests of the appellant first in being able to present her case properly and second in being able to answer questions when she was being cross-examined. That means that the appellant did not have a fair trial and we must now consider whether it is appropriate to remit this matter but we repeat that we are considering this sub-issue on the assumption (which is contrary to our finding) that the appellant did not request an adjournment.

(vi) Should this matter be remitted?

44. We are prepared to assume, but not decide, that the approach of this Appeal Tribunal should be that if the Employment Tribunal had incorrectly adopted an erroneous approach to an application for an adjournment, this Appeal Tribunal should apply the test laid down by Sir John Donaldson M.R. with whom Slade and Parker LJ agreed in Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329 where he said with his emphasis that: -

"once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding the direction that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate Tribunal to remit the case to the only Tribunal which is charged with making findings of fact". [18]

45. In our view, on the assumption that an adjournment had been sought and refused, it would still be pointless to remit this matter for a further hearing if the appellant had not suffered any injustice by reason of the failure of the Employment Tribunal to grant an adjournment on the first day of the hearing. After we raised this point at the hearing on 21 June 2005, it was agreed that it would be appropriate to adjourn the hearing in order to obtain the Chairman's notes of evidence so as to enable the appellant to be able to explain how she had been prejudiced by the failure of the Tribunal to refuse to grant her an adjournment.
46. The Chairman helpfully duly produced his notes of the evidence and the appellant then duly made a witness statement explaining how she alleged that she had been prejudiced by the Employment Tribunal's decision to refuse the adjournment. Her evidence was surprisingly vague on how she had been prejudiced by the failure to grant her an adjournment. As this issue is academic, all we need say is that we are not satisfied that the appellant was prejudiced in any material way by the failure to grant her an adjournment on the first day of the hearing before the Employment Tribunal. Incidentally it is noteworthy that the detailed notes of the Chairman of the Employment Tribunal do not show that on the first day, the appellant could not understand any question.

 

IV Conclusion

47. This appeal has to be dismissed, as essentially we do not accept the appellant's evidence relating, first to what happened while the Employment Tribunal was deliberating and, second to the alleged request for an adjournment. We stress that we are not going as far as to say that the appellant has made up her evidence but we consider that she was mistaken perhaps because in her own words "due to my ill-health at the time, I have only a partial recollection of what I said at the hearing". It might however be some consolation to the appellant to know that Miss Robertson represented her very ably and took all the points open to her.

Postscript

Having received submissions from counsel, the appropriate Order on this appeal is:

1. Appeal dismissed

2. No Order as to costs save that the appellant's costs be assessed for public funding purposes.