Appeal No. EAT/0684/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MR J HOUGHAM
MR H SINGH

MR CHARLES VAKNIN	APPELLANT

WYMONDHAM LEISURE CENTRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	

JUDGE ALTMAN

1.	This is an Appeal from the decision of the Employment Tribunal which sat on this case in Norwich on 28 January and 23 February 2000.  It comes before us following a Preliminary Hearing to a full argument restricted to ground 6(a) and (b) of the Amended Grounds of Appeal, the other grounds having been dismissed at the Preliminary Hearing. Ground 6(a) complains that the Employment Tribunal exercised its discretion improperly when they refused the Appellant’s application to adjourn the hearing made on the morning of the hearing for the purposes of his obtaining legal representation, and secondly, as a subsidiary matter, that they failed when giving their reasons to set out their reasons for the refusal of that application.

2.	When this matter came before the Employment Appeal Tribunal at the Preliminary Hearing the Appellant was requested to submit an Affidavit setting out his recollection of what took place and the Chairman was invited to give his account also.  The Appellant filed an Affidavit dated 15 November 2000 in which he said that at the beginning of the hearing on 28 January he informed the Tribunal Chairman that the solicitor upon whom he had relied had dropped his case two weeks previously, that thereafter he had sought a replacement unsuccessfully and that he had told the Chairman that he did not feel able to represent himself and requested further time to find someone to represent him.  The Application was rejected and the Appellant says that the reasons given to him orally at the time were the belief on the part of the Tribunal that he had had time to get legal help.

3.	The second complaint that the Appellant then introduced in his Affidavit and which it seems to us only fair to consider, even though it is not specifically raised in the amended grounds of appeal although it was not raised in other documents before the Tribunal, was that during the course of the proceedings the Appellant felt ill with a migraine and this was reported to the Chairman.  It is the Appellant’s case that the Chairman responded to that by adjourning for about two hours so that the Appellant could go half a mile to a pharmacy to get some migraine tablets.  The Appellant goes on in his Affidavit to say this:.  

“When I return to the Tribunal the Chairman asked me if I am able to carry on.  I told him that I am not one hundred per cent but I will try.  I do not think that I should have carried on feeling the way that I did.”

In addition the Appellant has said that he had several witnesses who were prepared to come but could not for fear of losing their jobs and that had he known about the Tribunal’s power to order attendance he would have made this Application.

4.	To a large extent that was dealt with on the Preliminary Hearing.  The Chairman has set out his recollection of the matter.  We would emphasise that we have confined ourselves, in considering the letter of 7 March 2001 from the learned Chairman, to those parts of his letter which deal with his factual recollection of what actually occurred and we have not found it relevant to have to consider his expressions of opinion contained in that letter.  He says that the records of the Tribunal show that originally there was an adjournment in November 1999 because of the desire for the Appellant to change his representative, and at that time he was saying that he had advice from his solicitor so that there had already been one adjournment for the purpose of the representation and then the application was made on the morning of the hearing and the postponement was refused.

5.	The Employment Tribunal came to the conclusion that the Appellant had had sufficient advice before the hearing to know whether or not to ask for a postponement and they felt that it was not a complicated case and that he could appear unrepresented.  In dealing with the question of the headache, to a large extent the letter from the Chairman confirms what the Appellant says.  There is one difference which is as follows.  It is the Chairman’s record which is to some extent supported from the note in the record of the Tribunal clerk, that after the luncheon adjournment when the hearing resumed at 2.07 pm there was a conversation about the Appellant having a headache and terrible migraines which had begun before lunch.  He explained that he had taken strong tablets, that it comes when he is upset, angry or under pressure and that the Chairman had noted “he is in a bad state” but he has also noted that the Appellant was willing to sit and answer questions.  That is confirmed by the Appellant himself who has repeated today that he told the Chairman that he did not feel a hundred per cent but would do his best.  The difference is that the Chairman’s note was that after that conversation the Chairman stopped the hearing and took upon himself to refuse to continue and the matter was adjourned to 23 February.  It is the Appellant’s recollection, about which he is very clear indeed and believes that he could if necessary have obtained supportive evidence from an observer from the Race Equality Council to collaborate it, that the Chairman effectively took the Appellant at his word and did continue during the afternoon until for, it seems, a couple of hours before adjourning to 23 February.

6.	It is very difficult for the Employment Appeal Tribunal to adjudicate upon a conflict of fact when we have before us the Appellant in person supporting his case with a sworn Affidavit and a letter from the Chairman.  Indeed it seems to us that it is in many respects an invidious process for this Tribunal to be asked to conduct some sort of fact finding exercise between those two bodies, because the result cannot be satisfactory.  It is very helpful to hear from the parties in this sort of issue their recollection of what occurred and that is how we have treated the material that we have before us.  However, we have proceeded on the basis that we should treat the Appellant as if his perception of what took place did in fact take place and we assume for the purposes of argument on this Appeal that what he says is correct.
7.	We deal first of all with the complaint that the Employment Tribunal did not give reasons for refusing the adjournment.  In fact looking at the Affidavit of the Appellant he does recall that reasons were in fact given by the Tribunal, namely that they thought he had had plenty of time to get legal help by then.  That again is confirmed it seems to us by the letter that we have had from the Tribunal.  It is important to remind ourselves of the regulations under which Tribunals operate.  The Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 which governed the matter at the time, provided the basis upon which the Tribunals are to conduct their proceedings and they give the Chairman a discretion to conduct the proceedings as the Chairman considers appropriate subject to certain matters which do not apply here.  The Chairman and the members, where they are present, have a wide discretion as to whether to proceed with cases or not.  

8.	In this case the Tribunal had to balance competing arguments.  On the one hand here was an Applicant with no experience of Tribunals at all, indeed with a limited experience of this country compared with many applicants, feeling at a disadvantage and wanting to present his case as best he could.  However, if what he says is right, he felt let down by the failure of a solicitor to continue, the Employment Tribunal were bound to say, from all the evidence we have heard about the many efforts that the Appellant did make to get a solicitor, that even if he got the adjournment he wanted it was highly unlikely that he would have succeeded in his aim and that at the adjourned hearing he would have been equally disadvantaged as he felt at the time.  It seems to us clear that the Tribunal considered the submission.  They gave a reason which seems to us they were entitled to give and we find they did not make a mistake of law in exercising their discretion in the way they did.

9.	Tribunals were established as an informal forum and have always been intended to be able to deal with either party, or both parties, appearing in person without legal representation. The Tribunals are experienced in taking into account that they are dealing with parties that are not represented, and although such parties do sometimes feel at a disadvantage that fact does not seem to us, either in this case or in any other, to be a basis upon which in law we can criticise the decision of the Tribunal.  We understand that looking back on the matter the Appellant feels he was disadvantaged, but there was no error of law so far as the Tribunal was concerned.

10.	So far as the adjournment for the migraine is concerned, the Appellant criticises the Chairman for thinking that the Appellant could obtain a cure for his migraine merely by going to a chemist’s shop and taking some tablets, and secondly he criticises the Chairman and the members for failing to adjourn immediately after the luncheon adjournment on the basis that it was clear that he could not conduct his case.

11.	Again with hindsight it may be that in his looking back and in analysing it, the Appellant does feel that he was “below par” and was not functioning as well as he should have done had he not had the migraine, but we cannot refrain from noting that sadly, because he gets it from time to time, it is the Appellant himself that must surely be the person who is best able to say how well his migraine is likely to respond to tablets and whether he is fit to proceed. Whilst he, perhaps out of an instinct of trying to be helpful, told the Tribunal that he did not feel a hundred per cent but would do his best, there cannot be any doubt that that is what he said.  In conveying that information to the Chairman the Appellant would have left would left him to think that he may well be able to proceed.  Even if the Appellant is correct as to what actually occurred in the Tribunal it seems to us that the Tribunal was faced with a statement of fact that the Appellant had migraine but that whilst he did not feel a hundred per cent he would try to continue.  In exercising their discretion to continue with the hearing the Tribunal cannot be criticised for having made any error of law.  It seems to us that was a decision that was within their discretion and they exercised their discretion on the information before them and came to a decision which a Tribunal properly directing itself could reasonably have come.  Accordingly we are driven to conclude that in reaching their decision the Employment Tribunal committed no error of law.

12.	So far as the witness orders  are concerned, it seems to us that that was embraced by the earlier judgment of the Employment Appeal Tribunal at the Preliminary Hearing.  But whilst no specific reasons were set out in that judgment, for the sake of completeness perhaps it is appropriate to point out that questions of procedure have to be left to the Chairman.  The parties are given some information before a hearing as to the right to apply for witness orders and  although this Appellant may not have read the documentation his position was no different from any other party and the information he got was probably no different from any other party.  It may be in fact that if only he had realised he would have applied for an order, but there was no error of law on the part of the Chairman in failing to specify that to the Appellant.  It is not in our experience customary for a Chairman to invite parties to apply for witness orders and therefore nothing unusual occurred in relation to that in these proceedings and we apprehend that that is why at the Preliminary Hearing it was found there was no legal basis for that ground of appeal.

13.	Accordingly, on all the arguments that we have heard and whilst we recognise that looking back on it this Appellant may feel that he did not do himself justice in the Tribunal, we can find no error of law on the part of the Tribunal.  This Appeal must be dismissed.