Appeal No. UKEAT/0830/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2004

Before
HIS HONOUR JUDGE D SEROTA QC
(SITTING ALONE)

MR I LAING	APPELLANT

MANCHESTER CITY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR I LAING
In Person	
For the Respondent	MR CHRISTOPHER TAFT
(Solicitor)
Manchester City Council Legal Services
City Solicitor's Division
Town Hall
PO Box 532
Manchester M60 2LA	

SUMMARY

ET Chairman adjourned case without reference to claimant using his powers under new ET Rule 12.  The ET, however, failed to comply with R12.2 and did not notify claimant of his right of his right to apply to vary or discharge.  Had this been done claimant would have responded and the order would almost certainly have been revoked.

HIS HONOUR JUDGE SEROTA QC

1.	On 17 November 2003 Mr Laing presented an Originating Application in the Employment Tribunal in Manchester in which he alleged he had been a victim of direct discrimination under the Race Relations Act and had also been victimised.  His allegations are really immaterial to this decision.  The dismissal took place on 17 November and the IT1 was presented later that day.  On 12 December the Respondent put in its IT3 in which it disputed the allegations.

2.	On some date which is not known to me, the case was fixed for hearing over four days commencing on 6 September 2003, all parties being notified.  I assume, albeit this is only an assumption on my part which may be incorrect, that various interlocutory directions had been given and the parties had prepared, and if appropriate, exchanged witness statements and bundles of documents.  On 27 August 2004 one of Mr Laing’s relations in Jamaica passed away and it was necessary for Mr Laing to go to Jamaica for the funeral.  There was correspondence with the Employment Tribunal.  The hearing date was put off by a day to 7 September. The claimant no doubt suffered inconvenience in having to travel back to this country one day and be prepared to be in the Tribunal the next day.

3.	On 7 September 2004 when Mr Laing attended the Tribunal he found that the Chairman was to be a Mr Coles and he objected to Mr Coles on the basis of bias and asked him to recuse himself.  The basis of the application was that Mr Coles had earlier in the year been Chairman of a Tribunal which had dismissed an application for discrimination on the grounds of race brought by Mr Laing against Stockport Metropolitan Borough Council.  It is right to say, as Mr Coles himself noted, that during the course of that hearing or thereafter he himself had been accused of bias by Mr Laing.  Mr Coles provided both sides with copies of his Extended Reasons in that case and considered that the case would have to be re-fixed as there was no other Chairman available to deal with the case on that day.  Various dates were available in November but at the hearing he was told that the date that Mr Laing favoured at the beginning of November was not convenient for the Respondent’s witnesses although Mr Laing wanted the case heard on that occasion.  A later date, the 22 November was available for all witnesses so the Tribunal was told.  The witnesses were of course in Court on that occasion and despite Mr Laing’s objection the case was put back to 22 November.  I should note that Mr Laing has complained, in my opinion, unreasonably, that the Chairman made the decision in the case involving him and Stockport Borough Council available to both sides.  It seems to me that it would be quite wrong if the Chairman in fact had failed to notify both sides in detail as to the matter, bearing in mind he was being asked to recuse himself, as he did, from hearing the case because of what had happened in the earlier proceedings.

4.	The Order that was made on that occasion provided that the parties could notify the Court that within seven days if the date might need to be changed.  On 8 September the Respondent wrote to the Employment Tribunal noting that two witnesses would not be available for 22 November.  One of those witnesses was a Mrs Smith.  I am not concerned about the other witness because so far as he is concerned it is a question of inconvenience which can be overcome.  Mrs Smith is due to fly to America on 23 November and the 22 November was a day she had taken as annual leave, no doubt she had things to arrange on that date.  There is no question of her being anything other than an important witness because she is the person relied upon as the comparator.

5.	On 15 September the Respondent wrote to Manchester City Council formally asking that the hearing be vacated, and pointed out that witnesses were available for the period from 22 to 25 November.  The letter sent by Karen Rose for the City Solicitor says this:
“I understand that the listing of 22 to 25 November was fixed at the hearing on 7 September.  It thus appears that there may have been some confusion or error concerning availability on the part of the Respondent for which I can only apologise.”

6.	On 17 September Mr Leahy, one of the Chairmen, refused to grant an adjournment unless Mr Laing was prepared to agree.  He refers to the considerable difficulties there had been in fixing the case and a copy of the letter was sent to Mr Laing asking whether he was prepared to agree to an adjournment.  In fact the Respondent was asking for the case to be brought forward to the dates originally suggested by Mr Laing.  Mr Laing did not respond to the letter.  We are not told why, neither did he agree, and we are not told why.  Faced with that the Chairman, on 24 September took the view that the case would have to remain in the list.  He had set out his reasons in his letter of 17 September and saw no reason to alter that decision.

7.	However, on 27 September Mr Laing wrote to the Tribunal in a letter which I have not seen.  It is apparent however, from other documents I have seen that he wished to make a fairly radical amendment to his Originating Application.  Firstly, he wanted to add a claim for unfair dismissal.  Secondly, he wanted to add as individual Respondents, Janet Smith whom I have already referred to, and a Mr Pickles, and additionally to make claims for discrimination under the grievance procedure, a claim for a breach of contract and also an allegation that the Respondent would be vicariously liable for any acts of discrimination committed by Mrs Smith and Mr Pickles.

8.	The matter came before another Chairman, Mrs Porter, on 29 September who declined to allow the amendment but ordered the Applicant’s letter to be sent to the Respondent.  I think I ought to pause at this stage to explain that.  Mr Laing is not a qualified lawyer but nonetheless he holds an LLB in law, an MA, an MSC and also an M Phil in law.  So he is not altogether unfamiliar with legal matters.  I put it to Mr Laing that he must have realised that his application to amend if granted, was bound to lead to an adjournment because it would be necessary for the new Respondents to consider their position, to obtain legal representation, in addition to any further matters that needed to be investigated by the Respondent.  Mr Laing told me that he did not appreciate this was the case.  I can perhaps only put this down to his unfamiliarity with the practice, as opposed to the study of law.  I do not say that in any unkind sense.  In any case, there it is, but I hope Mr Laing will understand from me that it would be clear to any practising lawyer that an application for such a radical amendment so close to a hearing date, if successful, has within it the seeds of an adjournment.  It has adjournment written all over it.

9.	When the Respondent received a copy of Mr Laing’s letter, on 5 October, it wrote to the Tribunal both objecting to the amendment and seeking a further adjournment.  It is a matter of the very greatest regret in the context of this case that a copy of that letter was not sent to Mr Laing.  Mr Laing has maintained consistently that had he been aware that the price of his amendment, so as to speak, was an adjournment he would have withdrawn his application to amend, as in fact he has done.  New Employment Tribunal Rules had just come into effect and under Rule 12 it is unquestionably the case that a Chairman can, on his own initiative, without hearing the parties or giving them an opportunity to be heard in writing or orally, make various procedural Orders including granting an adjournment.  However, Rule 12 requires that such an Order should in effect be regarded as provisional if made without hearing the parties, and such an order must contain an explanation of the right to make an application to have the order varied or revoked.  This unfortunately was not done and it is scarcely surprising that Mr Laing, as I put it during the course of submissions, threw a “wobbly” as one might say in the vernacular.  However, I stress at once that the Chairman acted with the best of motives.  Mr Laing was deeply upset, because what appeared to him to be the case was that the Employment Tribunal, having refused to re-fix the case on two occasions now without reference to him, but having received an application from the other side, had decided to go back on its own decision.  We now know the reasons why the Chairman acted as he did.  Mr Leahy took the case out of the list but directed that what should have been the first day of the hearing would be used for a pre hearing review.

10.	While I do not doubt that the Chairman had jurisdiction to deal with the matter without referring the Respondent’s letter to Mr Laing, I believe in the context of this case he was unwise to do so.  I also believe that had Rule 12(2)(a) been complied with and, had it been explained to Mr Laing that this was a provisional Order, Mr Laing would have made the same response to the Employment Tribunal that he has made here.  Namely “I withdraw my application for permission to amend and there is no reason why the case therefore cannot be heard and furthermore I am prepared to assist, if necessary, by allowing witnesses to be called out of turn for Mrs Smith to give evidence on 22 November.”

11.	It is quite clear that Mr Leahy was, in coming to the conclusion that he did, principally affected by the fact that Mr Laing had made his application to join further Respondents.  That request might be granted, and if granted would inevitably lead to the postponement of the hearing so the new Respondents could have time to enter appearance and to marshal their defences.  That is Mr Leahy’s explanation.

12.	Mr Laing was deeply offended by the decision to take the case out of the list and since that date has entered into what might be described as somewhat angry correspondence with the Employment Tribunal Service which I need not go into.  I do note however, that in his letter of 8 October he says that what has happened has settled in his mind that a fair hearing before the Tribunal at Manchester is not now possible and he will not take part in any further proceedings involving the Tribunal at Manchester.  I assume that Mr Laing wrote that in anger and now has taken a different view.  If Mr Laing told me it was not his intention to attend the Tribunal on 22 November then, of course, I would take a wholly different view as to an adjournment but I am approaching this judgment on the basis that what Mr Laing said in that letter was said in anger and having had the opportunity of cooling down so as to speak it does not represent his position at present.  Mr Laing has now confirmed this.

13.	In that letter he made clear that he was prepared, in order to have the case heard on 22 November, to withdraw his application to amend.  I need not go into the further correspondence that he has had with the Regional Chairman, Mr Doyle.  On 25 October he appealed and the basis of his appeal was essentially that the decision was perverse and that he was not notified of the application for an adjournment so that he could give his comments.  In my opinion, as I have already said, it was unwise for the Chairman to have acted as he did but improper for the Tribunal to have failed to comply with Rule 12(2).  If Rule 12(2) had been complied with in my opinion Mr Laing would have made it clear, to the Chairman, that if the price of the amendment was an adjournment, he would have withdrawn the application to amend.

14.	In those circumstances, as he has withdrawn his application to amend I can see no good reason why the hearing should not take place on 22 November.  Had a proper procedure been followed that is what would have happened.  I appreciate that it causes considerable difficulty at least to Mrs Smith.  However, I take the following matters into account.  Mrs Smith’s position had been considered by the Employment Tribunal.  If there were a difficulty, the difficulty was one which appears to have been created by the Respondent.  Mrs Smith, was present on the date when the case was fixed and it should, in my view, have been possible to notify the Tribunal on that date, as to her holiday arrangements.

15.	Furthermore, albeit, I appreciate it causes some inconvenience to Mrs Smith, in my view the application of the overriding objective and the fact that this is an old case which cries out to be heard requires that this case should be heard, despite the inconvenience to her.  In those circumstances the appeal will be allowed and the hearing date will be reinstated.  I make the order on the basis and I invite the parties to make a note of this, that there is firstly a concession by Mr Laing that he has withdrawn his application to amend and secondly that Mrs Smith’s evidence can be dealt with at the beginning of the hearing.  That is the Order that I make.