Appeal No. EAT/410/92
			EAT/705/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 & 12 October 1992
	Judgment delivered on 3 November 1992

	Before

	SIR DAVID CROOM-JOHNSON DSC VRD PC

	MR E HAMMOND OBE

	MR J A SCOULLER

EAT/410/92

JAMES HAWORTH LTD 	APPELLANTS

MR M P WINTER	RESPONDENT

EAT/705/92

MR M P WINTER	APPELLANT

JAMES HAWORTH LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

EAT/410/92

For the Appellants	Mr Martin Griffiths 
   (of Counsel)
Messrs Beechcroft Stanleys
20 Furnival Street
LONDON EC4A 1BN

For the Respondents	Mr Philip Sales
   (of Counsel)
Messrs Davis Arnold Cooper
6-8 Bouverie Street
LONDON EC4Y 8DD 

	

EAT/705/92

For the Appellants	Mr Philip Sales
	   (of Counsel)
	Messrs Davis Arnold Cooper
	6-8 Bouverie Street
	London EC4Y 8DD

For the Respondents	Mr Martin Griffiths
	   (of Counsel)
	Messrs Beechcroft Stanleys
	20 Furnival Street
	London EC4A 1BN

	SIR DAVID CROOM-JOHNSON:   Mr Winter was employed by James Haworth Ltd, as Deputy Managing Director and Executive Director of the photographic department of James Haworth Ltd (the Company).  The Company carries out advertising photography and other specialist activities.  His salary was £40,000 a year, and he received other fringe benefits worth about £8,000 a year.  On 4th July 1991 he was suspended.  On 11th July 1991 he attended a disciplinary hearing, set out in a bundle of 44 pages.  He was represented by his solicitor.  He was dismissed, but appealed.  On 15th July 1991 his dismissal was confirmed with effect from 16th July.  A formal letter giving reasons was sent to him.

	On 7th October 1991 he applied to an Industrial Tribunal claiming that he had been dismissed unfairly and asking for reinstatement.  The Respondents filed an answer on 7th November.  It said that the dismissal had been for gross misconduct.

	On 5th December Mr Winter took out a summons against the Respondents in the County Court, claiming damages of £30,000 for wrongful dismissal.  The Respondent/defendants put in a defence justifying the dismissal.  By 24th February 1992 the County Court proceedings had closed, although that closure may have been later because Mr Winter put in a reply.

	By 24th August 1992 the County Court action should have been set down.  Automatic directions should have been given under the County Court Rules 1981 Ord. 17.2.11.  Discovery had meanwhile proceeded , and we have been told that the documentation has already reached 999 pages.  The size of the documentation is so large because one of the employers' allegations is that over many months Mr Winter was buying alcohol but falsifying the invoices to make it look as though other materials were being bought instead.  It is said that the alcohol was then used for drinking sessions in the photographic department contrary to company rules.  Mr Winter denies any misconduct and says that there was only the odd occasion when drinks were consumed, and that was within his implied authority and tolerated by company practice.  All those issues also fall to be determined in the proceedings before the Industrial Tribunal.

	In the meantime, what had been happening to the complaint to the Industrial Tribunal?  The employers were of the view that the County Court case should be heard first.  They applied to the Tribunal that the tribunal case should be adjourned until after that hearing.  That application was heard by the Chairman on 29th April 1992.  It lasted some time.  The Chairman dismissed the application, and his decision is set out in a letter of 13th May 1992.  We call that "the first decision".  The employers appeal against it, by a notice dated 23rd June 1992.  They complain that Mr Winter is dragging his feet in the County Court because he has obtained no directions in that Court as required by the County Court Rules.  They have accordingly obtained an appointment for a pre-trial review in the County Court for 26th November 1992.

	The Industrial Tribunal, in the course of arranging its listing, held an interlocutory hearing for that purpose on 30th September 1992.  On any view, the proceedings in both courts will be lengthy.  Estimates have varied between 5 and 10 days.  It depends which comes on first.  At the hearing on 30th September, in circumstances to which we will refer later, it was decided to set the case down for hearing before the Tribunal "for 5 days for a date fixed after 1st April 1993."  That decision is set out in a letter to both parties dated 6th October 1992.  Mr Winter appeals against that decision, and that is "the second decision".  We heard both appeals on 9th and 12th October.  We dismissed both appeals and to save time said we would give our reasons in writing.

	The first decision letter of 13th May 1992 is very short.  It states -
	"Mr Wilson [for the Employers] applied for the industrial tribunal case to be adjourned until after the outcome of the case in the County Court.  After hearing argument I decided that the Tribunal case should not be adjourned and I discussed Mr Wilson's application.

	 I was referred to a number of cases and I took them into account, as well as considering what was said to me by both counsel.

	 In this case it is the applicant who has commenced the court proceedings, so no question of a 'stop writ' arises.  The County Court case is concerned with wrongful dismissal.  I accept that there is some overlap with the Tribunal case which is concerned with unfair dismissal.  But I do not think the overlap is very great.  The question before the Court and the question before the Tribunal are different questions.  I do not think that the Tribunal case is complex; only long and detailed.  I am not deterred by the amount at stake, said to be £30,000.  I cannot agree that the evidence in the Tribunal is likely to be technical.  I do not find much force in the fact that there may be some estoppel.  This is first (sic) the sort of case that an Industrial Tribunal is well equipped to hear.  There may be something in Mr Wilson's argument about double recovery, but I think that is outweighed by the other points above.  I think the balance is in favour of allowing the Tribunal case to proceed.  Tribunals were set up to provide a speedy remedy."
Mr Griffiths for the Employers attacks that decision on three grounds.

	The first is that it is "Wednesbury unreasonable" and is perverse.  He submits the Chairman asked himself only the questions which went to favour a hearing by the Tribunal and not those in favour of a hearing in the County Court.  He points particularly to the assessment of the amount of overlap which he submits is much greater than the Chairman suggested.  It is quite clear that the investigation of all the "false" invoices (common to both hearings) will be long and detailed, as the Chairman said, and it may well be that his assessment of the amount of overlap will turn out to be at fault.  It is common ground that the issues raised in the two sets of proceedings are different, but it cannot be said that the Chairman asked himself the wrong questions.  It is only said, by the Employers, that he came to the wrong answers.

	Another criticism is that the decision was illogical because it began with the assumption that the tribunal hearing would come on more speedily, that this has proved to be wrong, and therefore the decision was reached on an error of fact.  According to the latest information available on 30th September this is not so, and it cannot be heard before March 1993 which is after the expected date of hearing in the County Court.  That may turn out to be right, but does not invalidate the reasoning of the decision.

	The third criticism is that no mention is made of the guidance given in Bowater v. Charlwood [1991] ICR 789 that consideration should be given to which is the more suitable forum, the Tribunal or the High Court or County Court, where both sets of proceedings have been begun in parallel.  But Mr Sales, who represented Mr Winter on 29th April, told us that Bowater was one of the cases referred to at that hearing, and must have been in the Chairman's mind.

	It may well be that the members of the Employment Appeal Tribunal might not have come to the same conclusion as the Chairman.  There are obvious advantages in dealing with bulky files and detailed facts by a Court of one instead of by a Tribunal of three.  But the question is, does this decision show that the Chairman approached the application with a mind closed in favour of the Industrial Tribunal?  We cannot say that he does.  On the contrary, terse though the decision is, it shows that he was weighing up the arguments, and in the exercise of his discretion refused to make the order.  With that refusal we cannot interfere.  Accordingly the appeal against the first decision fails.

	The result of the "first decision" on 29th April was that Mr Winter's application before the Tribunal kept its place in the list.  The decision when to list was reached in the second decision.  What was put before another Chairman on 30th September 1992 was up-to-date information on the state of the lists in both Court and Tribunal.  Some date had to be fixed for the Tribunal hearing, and it appeared that the County Court was going to win the race.  What had to be avoided at all cost was fixing a date which would cause a clash, with both cases coming on together.    Mr Winter's advisers suggested that the second decision amounted to allowing an appeal from the first decision, which would be wrong.  But that simply is not so, when it is appreciated what the inevitable result from the refusal of the Employers' application in April was.  The second decision was not only sensible but, on the information then available, almost inevitable.

	The result is that both appeals were dismissed for the above reasons.