United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GILES NEAFSEY (Solicitor) Messrs TSP Legal 27 Harrington Close Lower Earley Nr Reading RG6 3BU
For the Respondent	No appearance or representation by or on behalf of the Respondent

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. The Appellant was employed by the Respondent council from 16 June 2003 to 7 September 2007. On 5 March 2008 she started proceedings in the Employment Tribunal, claiming that she was unfairly (constructively) dismissed and that the Respondent had discriminated against her on the grounds of her race. That discrimination consisted not only of the acts on which she relied for her claim of constructive dismissal, but on further acts going back some period into her employment. There has been a complicated interlocutory history, most of which I need not recite here.
2. On 24 August 2009 an Employment Tribunal sitting at Reading, chaired by Employment Judge Green, ruled that it had no jurisdiction to hear those parts of the Claimant's discrimination claim which related to acts done prior to January 2008. She appealed against that decision. The appeal was initially rejected on the sift, but on 2 March 2010 Mrs Justice Cox directed a preliminary hearing. That is now listed for 21 June 2010.
3. In the meantime directions were given for the full hearing of those parts of the claim which survived the order of 24 August 2009, and in due course a hearing was fixed for four days beginning on 27 April 2010. There were various outstanding case management issues and a case management discussion/pre-hearing review ("CMD/PHR") was listed for 26 March 2010.
4. On 8 March the Appellant's representative, Mr Neafsey, applied for the April Hearing date and the CMD/PHR to be postponed, pending the outcome of the appeal against the decision of 24 August 2009. By letter dated 18 March 2010, Employment Judge Warren declined to vacate the CMD/PHR or the trial date - at any rate, at that stage. The present appeal is against that decision.
5. By order dated 23 March 2010 Judge Peter Clark directed that there be an expedited hearing of this appeal - to take place, in any event prior to 27 April 2010, being the date of the listed hearing: by that time, the question of the March CMD/PHR was of course academic. On 30 March 2010 the Respondent wrote to the Tribunal indicating that it did not propose to resist the appeal; and on 3 April 2010 Mr Neafsey wrote asking that the appeal be allowed without the need for his attendance.
6. Two days ago, Judge Warren postponed the April Hearing. That means that the appeal is now redundant in its entirety. Mr Neafsey has, in the event, appeared and agrees that the appropriate course in the events which have happened is for me to dismiss the appeal on withdrawal.
7. There is one remaining matter, which is the reason why Mr Neafsey has attended, notwithstanding his original request to be permitted not to do so. He draws my attention to the provision of the Practice Direction referring to this Tribunal's power to require or recommend consideration by the parties of compromise, conciliation, mediation or - in particular - reference to ACAS. The background to that paragraph in the Practice Direction is that this Tribunal has an arrangement with ACAS, under which - if we identify a case as appropriate for conciliation - it will undertake conciliation notwithstanding that it must be assumed that an earlier attempt at conciliation has been unsuccessful. This particular appeal has now been disposed of, but there is an outstanding appeal against the order of 24 August 2009.
8. I am, in principle, very favourable to the idea of this claim being the subject of a further attempt at conciliation. I am not, however, prepared on this occasion to make a formal recommendation or requirement to the parties to consider conciliation which would effectively trigger the arrangement with ACAS, because the Respondent is not present, and there may be - though I think it rather unlikely - good reasons why a further attempt at conciliation would be futile. The course which I therefore propose to take, which I have discussed with Mr Neafsey, is this: I will order this judgment to be transcribed, as it would be in any event because the Respondent is not present, as a matter of expedition; and by these remarks, I strongly encourage the Respondent to agree to the making of an order under para 10.3 of the Practice Direction which will trigger ACAS's involvement. I say 'encourage' because, as I say, it is possible that there are good reasons why that is not a sensible course; but subject to that I would hope and expect that they would signify their agreement. If, within 14 days of the sending of the transcript of my judgment to the parties, I receive a letter from the Respondent's representative saying that they are agreeable to conciliation, I will then make without the need for any further step by the parties, and order in the other appeal, which - for form's sake - is appeal no. 0136/10/RN, in accordance with the Practice Direction. Even then, the formal status of the order is that it does not compel the parties to take part in conciliation, but the practical effect will be that ACAS's services will be available to the parties. That may sound a little complicated, but the substance - I think - is straightforward.
9. The only other point that I would add on that topic is that whereas conciliation is generally the best way forward where the parties have been unable to agree matters in direct negotiation, there is no point in involving ACAS, with the additional costs and expenditure of ACAS resources, if the parties are able to negotiate directly. I have no idea whether that is the case, but in principle that should be the first step, and no order from this or any other Tribunal is necessary for that purpose. The fact that Mr Neafsey has asked for the order that he has makes it clear that the Claimant's door at least is open.