Appeal No. EAT/1045/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 September 1996

Before
HIS HONOUR JUDGE J HICKS QC
MR A E R MANNERS
MRS T A MARSLAND

LOUGHBOROUGH COLLEGE OF ART AND DESIGN	APPELLANTS	
MR L J ST CROIX	RESPONDENT	

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P WALLINGTON
(of Counsel)
Messrs Latham & Co
Solicitors
39 Granby Street
Loughborough
Leics LE11 3DU	
For the Respondent	MR A J POINTON
(Trade Union Representative)
AUCL
104 Albert Road
Southsea
Hampshire
PO5 2SN	

JUDGE J HICKS QC:      There is an application by Mr St Croix pending before the Industrial Tribunal and the present appeal concerns a refusal by the Chairman of the Tribunal to accede to an application for the adjournment of the hearing fixed for 8 to 10 October.  

	There had originally been a listing issued on 16 July for a one-day hearing on 15 August; that took place, as is the practice, without consultation with the parties.  The employers requested its postponement for three reasons.  One was that the Principal was on holiday on the date fixed, the second was that Mrs Arno, the Personnel Officer of the employers, who was a material witness, was on maternity leave from 2 August with an expected confinement early in September - I think on 2 September - and the third was that, in any event, a one-day hearing was inadequate because two or three days would be required.

	The Tribunal responded to that by issuing a fresh notice of hearing on 8, 9 and 10 October; that plainly dealt with the question of the length of hearing required.  The Principal would by then be back from holiday so that ground disappeared.  What was left, if the employers still considered it a difficulty, was the question of Mrs Arno’s confinement, because by that date, 8, 9 and 10 October, she would, if matters took the expected course, be the mother of an approximately five-week old baby.  

	The employers had also raised a question about the difficulty of producing certain documentation which they alleged, quite wrongly, was in the possession of the police Serious Fraud Office.  The true situation was that the police had written to them asking them to make sure that certain documentation was not interfered with, or dealt with in any way which would prejudice the investigation.  Whether that was a mistake or not or how it arose is not now material.  

	The result of the re-fixing of the date was an application on 23 August for a further postponement.  The grounds now raised were the allegation that the documentation was in the control of the police and the fact that Mrs Arno was on maternity leave until January.  It was actually in that application that the exact date of her expected confinement was given as 2 September and that application was accompanied by a letter from her saying that she felt she  would be unable to attend and a note from her doctor, which is dated 22 August and, as originally written, it seems to us quite plainly read, “Mrs Joanne Arno will be on maternity leave until January 1997 and will not be able to attend the Industrial Tribunal until then”.  As what seems to be clearly an addition there are inserted above that the words “In my opinion” and it is signed by the doctor.

	The Chairman of the Industrial Tribunal rejected that application on 2 September, but it was renewed by a letter with further reasons on 16 September and the Chairman gave extended reasons in a letter of 18 September for rejecting it.  He recites in paragraph 1 the history of the original application, noting that no reasons were originally suggested for the postponement other  than the three that I have recited.  In numbered paragraph 2 of his reasons he deals with Mrs Arno’s situation in these terms:

“2.  Now the Respondent seeks to postpone the case on two grounds.  The first of those is that Mrs Arno cannot attend to give evidence whilst she is on maternity leave.  In the Chairman’s view, the fact that she is on maternity leave is no reason why she cannot attend to give evidence.  This application was made before the child was born and therefore neither Mrs Arno’s doctor nor anyone else would have been in a position to say whether she would or would not be able to attend to give evidence other than by simple reference to the maternity leave period.  The points raised by Mrs Arno herself in the letter she sent to the Respondent’s solicitors relate more to practical difficulties of attending, which the Chairman does not accept as valid reasons for her non attendance”.

	In paragraph 3 he deals with the police investigation and notes that the documents are not in the possession of the police and says that he sees no good reason why the Respondent should not examine the documentation and refer to it in the hearing as is necessary and in paragraph 4 he deals with the balance of prejudice as between the Applicant and the Respondent and comes to the conclusion that it would be significantly against the Applicant if the application for an adjournment is granted and he deals in particular with the documentation point and notes that that would be likely to take many months, or even years.

	The employers appeal against that decision and Mr Wallington, who appears on their behalf, rightly accepts first that this is a discretionary decision by the Chairman and secondly, that the grounds on which it is open to us, as an appellate tribunal with a jurisdiction only in law, to deal with the exercise of a discretionary power are limited, and he has referred us to the well known case of Carter v Credit Change Ltd [1979] ICR 908 and we need refer only to the extract there from the judgment of Mr Justice Arnold in Bastick v James Lane (Turf Accountants) Ltd  [1979] ICR 778 in which he summarises the position thus:

“Either we must find ... 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 ... or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.”

	Mr Wallington’s submissions concentrate chiefly on the ground that rests on Mrs Arno’s confinement.  He does not, as we understand it, suggest that the Chairman did not take it into account at all.  It is quite plain the Chairman did.  He does not, as we understand it, suggest any specific matter which the Chairman took into account which it was improper to take into account.  

	So we are left with the third ground, that the exercise of the Chairman’s discretion was so far beyond what any reasonable Chairman could have decided that it was perverse.  We find ourselves quite unable to come to any such conclusion.  There was of course a balancing exercise to be entered upon, but so far as the position of the witness Mrs Arno was concerned, the Chairman commented - and he was entitled to and indeed we think quite rightly - that in an application made by a fortnight after the expected date of confinement he has only documents from the mother and the doctor before the date of confinement.  He is not told anything about when the birth took place, or how the mother and baby are getting on or how the baby is being fed, or anything which goes beyond the bare assertion that a mother cannot attend as a witness during maternity leave which will last for something like three months or so - more than three months - from the expected date of confinement.  The medical certificate is not in the ordinary sense a medical certificate at all it simply draws attention to the fact that Mrs Arno will be on maternity leave and goes on to say: “and will not be able to attend the Industrial Tribunal until then”.  That cannot be a considered expression of medical opinion.  There is nothing about a prospective maternity leave lasting for three months which dictates, as a matter of medical inference, or can possibly dictate as a matter of medical inference, whether she will during the whole of that period be or not be fit to attend a hearing as a witness.

	In our view the Tribunal Chairman was perfectly entitled - it is not for us to say whether we would have reached the same decision - to reach the decision.  Nothing is shown to suggest that he erred in law in the considerations which he took into account, nor is his decision, in our view, one which no rational Chairman could have reached.  

	Mr Wallington does add a further ground of what he calls “perversity in the round” in which he seeks to reintroduce the question of the documentation which he frankly (and very sensibly) accepts cannot stand as a ground of appeal on its own, but there is nothing in our view in that way of putting it either.  If the availability or otherwise of the documentation were a real difficulty then it could, as the Chairman pointed out, result in an almost indefinite postponement and that cannot possibly be right.  Moreover the employers, as far as we have been told and as far as the Chairman was told, which is more important, had not taken even the elementary step of considering which of the documents covered by the police and Serious Fraud Office investigation they will actually need to produce and of writing to the police officer concerned to see whether there is any real difficulty in those documents’ being produced under suitable undertakings as to making sure that they will not be tampered with.  

	Mr Wallington, in the face of our pressing him with the point that an application made a fortnight after the expected birth should surely at least tell the Chairman who is being asked to make a decision whether the baby has been born and what the circumstances of mother and baby are, made an application for which no advance notice has been given to the Tribunal, as far as we know, for the introduction of additional evidence in the form of a letter from Mrs Arno dated 25 September.  Mr Pointon, for Mr St Croix, did not object to that and we have looked at it de bene esse.  It says that Mrs Arno is breast feeding, that the baby wakes several times during the night for feeds, that she is being fed about every two hours and that Mrs Arno is very tired and not fit to devote the necessary time and attention to the hearing and the preparation required.  It still does not actually give the date of birth, but one can infer from her statement on 25 September that it is a four-week old baby that it was born 28 August or thereabouts and therefore, unlike many first babies, actually a little early rather than a little late, but certainly not sufficiently early to be a premature baby in the sense of any real difficulty.  That means that the baby will be about six weeks old at the expected date of the hearing.

	We, despite Mr Pointon’s not objecting, have the gravest doubts, to say the least, whether this begins to come within the criteria which govern the acceptability of additional evidence before the Appeal Tribunal, and indeed this was the very point which we had put to Mr Wallington.  It must have been possible, and indeed one would have thought elementary, if making an application a fortnight after the expected date of birth, to obtain the latest information on these matters and put them to the Chairman and that was not done.

	However, since it has not been objected to we have as I said, looked at it, but it does not in our judgment justify us in interfering with the Chairman’s decision.  It may well be that the present state of mother and baby are matters, which if now brought before the attention of the Chairman, would justify asking him - we are not saying what his decision would be - to look at the point afresh, especially accompanied, which this letter is not, by some indication of when it is likely that Mrs Arno could, in the employer’s submission, properly or reasonably be expected to attend a hearing, rather than simply sitting back, as the employers have so far done, on the basis of an application that she cannot be disturbed during the whole of her statutory or contractual maternity leave.  

	That, it seems to us, is a matter for the employers as to whether they make a further application on that ground and it is a matter for the Industrial Tribunal or its Chairman to consider if such an application is made.  It does not, in our judgment, justify us in interfering with the exercise of the Chairman’s discretion.  Still less would it be helpful, advantageous or proper for us actually to form our own view, either as to the adjournment or still less as to re-fixing an appropriate date.  The appeal is therefore dismissed.