United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D OUDKERK (of Counsel) Instructed by: Messrs DLA Piper UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL
For the Respondent	MS E BASCETTA (The Respondent in Person)


 


SUMMARY

PRACTICE AND PROCEDURE: Postponement or stay

Employment Tribunal refused to postpone remedy hearing until after appeals by both parties heard at full hearing by the Employment Appeal Tribunal. Material factor not brought to Employment Judge by party opposing postponement application. Applying Wednesbury principles Judge was thereby led into error. Exercising powers of Employment Tribunal under s35(1) Employment Tribunals Act 1996 appeal allowed and postponement granted.

HIS HONOUR JUDGE PETER CLARK

1. This claim has been proceeding in the Bedford Employment Tribunal. The parties are Ms Bascetta, Claimant and Abbey National PLC, Respondent. I shall so describe them.

Background

2. The Claimant was employed by the Respondent between 1988 and 24 August 2006. Following termination of her employment, she brought various claims against the Respondent, which finally came on for hearing before a Tribunal chaired by Employment Judge Adamson in October 2007 and February 2008.
3. By a judgment with reasons promulgated on 11 June (the liability judgment) that Tribunal upheld her complaints of unfair dismissal and victimisation by way of dismissal. Her further claims of victimisation, other than by way of dismissal (direct sex discrimination and detrimental treatment by reason of whistle blowing) were dismissed, as were her claims of unlawful deductions from wages and breach of contract. Against that liability judgment both parties have separately appealed to the EAT (the substantive appeals).
4. On 29 September 2008, HHJ McMullen QC directed, at the paper sift stage, that both appeals should proceed to a full hearing before the EAT. That hearing is currently listed to take place on 12 February 2009 and 13 February 2009.
5. The Adamson Tribunal directed that a remedies hearing take place on 20 - 22 May 2008. However, because the liability judgment was not then finalised, that hearing was postponed and on 4 August was re-listed for hearing on 9 - 11 December.
6. On 6 October the Respondent's solicitors wrote to the Tribunal, following HHJ McMullen's directions in the substantive appeals, requesting that the remedies hearing be further postponed pending the outcome of the Employment Appeal Tribunal hearing. It was said that it would cause the parties to incur unnecessary costs in attending a remedy hearing, at which expert witnesses were due to be called. That letter was copied to the Claimant who, by a letter dated 8 October, strongly objected to any further postponement of the remedy hearing.
7. Having considered the representations by both parties Judge Adamson, by a letter dated 13 October, refused the Respondent's postponement application. It is against that refusal that the present appeal, now before me (EAT0478/08), is brought.

The EAT Jurisdiction

8. The principles upon which this EAT will consider appeals against employment tribunal case management orders are now well settled. The position has been recently re-stated by Lady Smith in Amey Services Limited v Cardigan [2008] IRLR 279 (see particularly paragraph 14).
9. One of the cases there cited, Carter v Credit Change Ltd [1979] ICR 908, concerned the question of postponement which is the question arising in the present case. There, an Industrial Tribunal chairman postponed a tribunal hearing pending determination of separate proceedings between the same parties in the High Court. On appeal, the EAT held that the proceedings in the Tribunal should be heard quickly and reversed the chairman's decision, directing that the Tribunal hearing should proceed. On further appeal the Court of Appeal restored the chairman's original order. The Court of Appeal emphasised the need, on appeal, to apply Wednesbury principles. The EAT was wrong in that case, held the Court, to elevate the principle of a speedy hearing to one which was determinative of the application, absent special reasons or unusual circumstances; see per Stephenson LJ 918F  919G.

The Present Appeal

10. Applying the three-stage approach of Wood P in the case of Adams, referred to by Lady Smith in Amey Services, Mr Oudkerk, in advancing the appeal, acknowledges that the judge below had power to grant or refuse a postponement of the remedy hearing fixed for 9 - 11 December but submits, first, that the decision to refuse a postponement was not in accordance with guiding legal principles. Alternatively he submits that the decision was, in the Wednesbury sense, perverse.
11. As to his first submission, he contends that the judge has, in effect, directed himself that the fact that both parties have appealed the Tribunal liability decision cannot form the basis of an application for a stay of the remedy hearing. In my judgment, that is not a fair reading of the employment judge's reasoning. He said, in the letter of 13 October, "The fact that there are appeals to the EAT is not a good reason, in itself, for a postponement". He is not there saying, in my opinion, that pending appeals cannot form the basis of an application to adjourn the remedy hearing. The critical words are "in itself". Plainly it is a factor to take into account but, as the judge correctly stated, applying the underlying principle in Carter, it is not a determinative factor.
12. I turn then to Mr Oudkerk's alternative submission. The Wednesbury principle, as applied in this jurisdiction, was stated by Arnold J in Bastick v James Lane Limited [1979] ICR 778, 782B-C in this way.

"Now, we think that when we, in this appellant tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account, or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of it discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That statement of the law was expressly approved by Stephenson LJ in Carter, see page 918F.

13. Focusing on the question as to whether the employment judge failed to take into account a relevant factor, at paragraph 7(6) of the Respondent's notice of appeal first sent to the EAT on 22 October attention is drawn to correspondence between the Claimant and the EAT, in which it is said that the Claimant is now seeking to have her substantive appeal and that of the Respondent delayed until after the remedy hearing.
14. The relevant chronology is as follows. On 5 October, the Claimant prepared a letter to the EAT. She attempted, unsuccessfully, to email it by way of an attachment to the EAT on 6 October, the date on which the Respondent applied to the Employment Tribunal for a postponement of the remedy hearing. She did not then copy it to the Respondent. In response to a communication from the EAT, the Claimant faxed her letter, dated 5 October, to the EAT on 10 October. Meanwhile at 22.20 hours on 9 October, she forwarded a copy of the letter to the Respondent.
15. In that letter of 5 October, she (a) sought an extension of time for lodging an answer to the Respondent's substantive appeal, (b) asked, in the light of her personal circumstances on which she did not then enlarge, that the substantive appeals be not listed before 2 February 2009 and (c) informed the EAT that she had secured a new job in Canary Wharf, London.
16. A copy of her letter was sent to the Respondent by the EAT, asking for their comments on 14 October and on 21 October the Respondent replied, opposing the application for further time and referring to the appeal presently before me.
17. What is highly material, submits Mr Oudkerk, is that in her letter to the Employment Tribunal dated 8 October, opposing the Respondent's application for a postponement of the remedy hearing, the Claimant made no mention of any of those three matters. Instead, she focused on the delays already experienced in determining the Employment Tribunal proceedings.
18. It is common ground between the parties before me that the question as to when the EAT would hear the substantive appeals, either before or after the date then fixed for the remedy hearing, was a material factor and one which was not taken into account by the employment judge when exercising his discretion to grant or refuse the postponement application. It is not apparent from his reasons for refusing the postponement that he expressly considered that point, but it is unsurprising, since it was not raised by either party in their written representations, and no criticism can be made of him in these circumstances.
19. The difficulty I have is that, I am sure inadvertently, the Claimant, in opposing the application for a postponement, gave the clear impression that she wished to get on with the case when, at the same time, without informing the Employment Tribunal, she was asking the EAT to delay the substantive appeal hearing until after the remedy hearing. Thus, whilst the word "failed" in Arnold J's formulation in Bastick might import some criticism of the Employment Tribunal Judge I accept Mr Oudkerk's submission that that is not a necessary finding on appeal. If an Employment Tribunal judge has not been given the full facts by one or other of the parties in reaching a case management decision, he may then fail to take into account a relevant factor through no fault of his own.
20. That is what I am satisfied occurred in this case and to that extent Mr Oudkerk succeeds in establishing an error of law in the judge's exercise of discretion below.
21. Having reached that conclusion, I am invited to allow the appeal and to exercise my powers, under Section 35(1) of the Employment Tribunals Act 1996, to decide the question of postponement afresh. Applying the overriding objective set out in Regulation 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, I am wholly persuaded, by Mr Oudkerk that the remedy hearing ought to be postponed, to be re-listed after the EAT hearing fixed for 12 - 13 February 2009.
22. In reaching that conclusion, I take into account the following factors. On the one hand, I accept Ms Bascetta's submission that there has already been considerable delay, not of her making, in attaining a resolution of the Employment Tribunal proceedings. She also tells me that her family is suffering real financial difficulties and that her bank has indicated that further credit will be extended only on the basis that she receives an award in this case. However, any award made now must be subject to the respective substantive appeals against the Employment Tribunal's liability judgment. Both have been permitted to proceed to a full hearing; they have not been rejected under the Rule 3(7) procedure. If she succeeds in her appeal, and she tells me it has merit, any award will need to be reconsidered and increased. If not, and the Respondent's appeal succeeds, any award made by the Tribunal may be set aside. Her bank is aware of that possibility, so she tells me.
23. This is a substantial claim. Expert witnesses are to be called. Three days have been set aside. Considerable cost for the Respondent and expense for both parties will be wasted if the EAT allows either or both appeals so that any remedy judgment cannot stand. If both appeals fail then any award of compensation finally made will attract interest in favour of the Claimant.
24. Finally, I am not impressed by the Claimant's failure to inform the Respondent until her letter of 5 October to the EAT being copied to them that she had obtained fresh employment. Plainly that is a material factor in deciding, separately, whether the remedy hearing can properly proceed on 9 December and has, I understand, been the subject of a fresh postponement application by the Respondent, dated 2 December, on which the Tribunal has not as yet ruled. In the light of my judgment, that now becomes academic.

Disposal

25. In these circumstances, the appeal is allowed and the remedy hearing fixed for 9 December is vacated, to be re-listed at Bedford after determination of the substantive appeals in this case.