Appeal No. EAT/1119/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16 December 1994

	Before

	MR JUSTICE HOLLAND

	MISS J W COLLERSON

	MR R JACKSON

WILLIS FABER & DUMAS LTD	APPELLANTS

MRS K J CARR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

 	APPEARANCES

For the Appellants	MR PHILLIP PARISH
(Solicitor)
Messrs Linklaters & Paines
Barrington House
59-67 Gresham Street
London EC2V 7JA

For the Respondent	Ms Marion Scovell
(of Counsel)
Wandsworth Law Centre Ltd
248 Lavender Hill
London SW11 1LJ

	MR JUSTICE HOLLAND:  This matter comes before this Tribunal in these circumstances.  The Applicant, Mrs K J Carr, has presented a complaint alleging sex discrimination and unfair constructive dismissal on 28 May 1994.   

	The Respondents are her former employers, the well-known firm of insurance brokers, Willis, Faber & Dumas Ltd.  That firm filed a notice of appearance on 5 July 1994 through the good offices of its solicitors, Messrs Linklaters & Paines.

	On 28 September 1994, the Regional Office of the Industrial Tribunals for London (South) issued to the parties a notice of hearing which specified that the complaint would be heard on Tuesday, 3 January 1995, with the estimate being one day.  The notice then read as follows:

		"Unless there are exceptional circumstances, no application for postponement will be entertained if it is received more than 7 days after the date of this notice.  Any such application must be in writing and state the full grounds and must provide details of unavailable dates within the period of three months from the hearing date."

	Messrs Linklaters & Paines within that period of seven days, that is, on 30 September, wrote to the Regional Office with a copy to the solicitor then acting for the Applicant, in these terms:

		"Thank you for your notice of hearing which we received today.  We note that we have just one day allocated for the hearing.

		We are of the view that this trial will occupy approximately 3 days.  We will need to call at least four witnesses to defend this application, and we would also expect the applicant's evidence and cross-examination to last a considerable time.

		We have not had the opportunity to discuss our time estimate with Mr Fisher at Field Fisher Waterhouse.  We have sent him a copy of this letter."

That letter does not provide any details of unavailable dates within a period of three months from 3 January 1995.

	On 22 November the Regional Office responded to Linklaters & Paines in these terms:

		"I acknowledge your letter of 30th September 1994.  The Chairman has considered all you say and has balanced that against the desirability of bringing the case to a hearing without delay.  The case must start on the date arranged.  If necessary the case will go part heard to a date fixed by the Tribunal at the hearing.  It is likely that the case will be disposed of sooner by this course."

	That elicited a response from Messrs Linklaters & Paines dated 28 November.  It reads:

		"Thank you for your letter of 22 November 1994, informing us that the hearing will go ahead on 3 January 1995, despite our estimate that it is likely to exceed the time for which it is listed.

		In response to your letter, we have checked our witnesses' availability for the hearing and it appears that two of our main witnesses will be unavailable on that date.  Mr Piccolomini, against whom allegations are made in the originating application, will be in Italy, and Mr Boglione, the Applicant's supervisor, will be Australia.  Both gentlemen have made longstanding arrangements which cannot be altered.  In their absence, we would have grave difficulty defending this complaint.

		Please revert to us on this matter as soon as possible.  If the hearing date is not postponed as requested by us, then we will need to make a formal application before a tribunal for an adjournment."

	On 2 December the Regional Office wrote to the parties indicating that the chairman had refused the request for a postponement of the hearing but intimating that arrangements had now been made for the hearing to continue on 4 and 5 January, that is, the Regional Office had accommodated the request for a three-day hearing.

	Finally, the matter has proceeded by way of an appeal to this Tribunal against this stance by the Industrial Tribunal and, in particular, against its apparent refusal to hear an oral application for an adjournment from 2 January to accommodate the convenience of the Respondent's witnesses.  The Applicant, herself, having instructed fresh solicitors, has taken a firm stance that she is ready to go ahead on 2 January and she opposes any such adjournment of the case.

	For this Tribunal, the key to the problem, is presented by s.136 of the Employment Protection (Consolidation) Act 1978, which provides by s.(1):

		"An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal ..."

	Considering the material that has been put before us, we are quite unable to discern anything approach a "question of law" that arises in this matter.  Mr Parish, presenting the arguments for the Respondents, contends that such is raised because the decision of the Industrial Tribunal, in particular the decisions to have the matter listed willy-nilly on 2 January and, above all, to refuse him the facilities to make an oral application to have that date vacated, are perverse, i.e., they are decisions which no reasonable Tribunal, properly directing itself as to the law and in the light of the evidence before it, could possibly make.  

	It is manifest, looking at the papers that are before us, that no such criticism could conceivably be made of this Industrial Tribunal.  There is no basis for saying that the stance they have taken is one which no reasonable Tribunal could take.  There is quite an argument that can be raised for contending that, so far from being perverse, the decisions so far made by that Industrial Tribunal are, indeed, correct on the materials being put before it.  We draw particular attention to the content of the initial notice of the hearing, which gave ample scope for a response and which drew attention not only to the matter of the length of the hearing but also to the matter of the unavailability of witnesses.  In particular, we draw attention to that part of that notice which invited details of unavailable dates within the period of three months from the hearing date.  Not only was there no intimation to the Industrial Tribunal that there was a problem about the witnesses, that intimation, when it finally came on 28 November, did not then or even now, provide details of unavailable dates within the period of three months from that hearing date.

	It is in those circumstances that we conceive much to be said for a stance which is to the effect that this matter must now come on on 2 January.  At that stage, the discretion of the chairman will be supplemented by that provided by his fellow Members.  The full Tribunal can then consider the position as it is presented before them.  It will be for them, in the exercise of their discretion, to decide how best justice can be achieved in this matter.  Whether that means that it goes on for the full hearing, whether it means that it is adjourned altogether or whether it means that it deals with so much of the hearing as does not require the presence of these two witnesses and, thereafter, adjourns to a date on which they are both present, all those are options which are plainly there to be considered by the full membership of the Tribunal.

	Thus it is we regard this appeal as totally unsustainable and we have to dismiss it.  

	We have, ourselves, in the course of this hearing sought to explore the potential for some resolution of this problem because it would seem desirable that these two witnesses, who are named in the grounds for the original application, should indeed be present to enable the Tribunal to do justice in this matter.  To that end we have pointed out forcibly, and we continue to point out, that a great deal surely turns on when they are both available.  We have indicated that once that is established, once there are dates available, then no doubt Messrs Linklaters and Paines will discuss those dates with their opponent, and both sides will then be in a position to help the Industrial Tribunal how best to deal with this particular matter.  What, in our view, is needed, is some urgent commonsense bringing to bear upon this particular aspect of it, some proper communication between the parties and, ultimately, the parties assisting the Industrial Tribunal in the best way to have this matter proceed.  It is very unfortunate that none of that took place within the seven-day period stipulated.  Indeed, none of that has taken place within the period from that notice to today's date.  We hope that it is not too late for some commonsense to be applied, even though that commonsense may, at this stage, not obviate the need for the parties to turn up, as requested by the Industrial Tribunal, on the date specified, i.e., on 3 January.

	There is nothing more that this Tribunal can think of to say to try to assist the further progress of this matter.