Employment Judge FloodMiss Jones (instructed by Counsel) for claimantMr Segal (instructed by Counsel) for respondentDate 28 November 2018
JUDGMENT
ON INTERIM RELIEF APPLICATION The Judgment of the Tribunal is that the claimant’s application for interim relief is refused.
REASONS
[1]The Claimant’s claim is that he was subject to a detriment and was unfairly dismissed for taking part in union activities contrary to s 146(1) and s152(1)(b) Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”). The claimant also claims unfair dismissal contrary to s 94 of the Employment Rights Act 1996 (“ERA 1996”). An application for interim relief was presented on 27 June 2017 under s161 TULR(C)A 1992 within the prescribed time limit. The requisite certificate pursuant to s161(3) was duly completed by an official of the relevant trade union (here being the respondent itself) was submitted to the Tribunal along with the claim.[2]For the purposes of this hearing, I had before me the following documents: skeleton arguments prepared by the claimant and the respondent; an agreed bundle of documents (“the Bundle”); witness statements from the claimant; Ian Waddell on behalf of the claimant and Gail Cartmail on behalf of the respondent; and a bundle of statutory material and authorities prepared by the respondent. I heard oral submissions from both parties.[3]I determined at the outset that I would not hear any oral evidence but would be deciding the case on the basis of the written witness statements and the Bundle. The claimant made an application to adduce oral evidence from Mr Waddell suggesting that this was an unusual case given that the respondent, Unite, was also the relevant trade union. Therefore, the claimant submitted, the opinion of the relevant trade union officer that there were reasonable grounds for supposing that the reason or principal reason for dismissal was for carrying out trade union activities was particularly cogent. The respondent did not object to the claimant’s application to call Mr Waddell but suggested that there was nothing out of the ordinary in the role Mr Waddell played, pointing out that he had represented the claimant during the disciplinary process.[4]I decided that it would not be particularly instructive nor in the interests of justice for me to hear directly from Mr Waddell in the absence of other witnesses. The certification letter itself confirmed Mr Waddell’s opinion, and his witness statement gives further detail on what he will say at the full tribunal hearing in this regard. This was an interim application and is not the full hearing of the complaint and I was conscious not to stray into the area of finding facts on evidence. I considered Mr Waddell’s statement along with the others supplied, and this was sufficient for me to form a view on the issues pertinent to this application.
The relevant law
[5]S152(1)(b) TULR(C)A 1992 states that if the reason for the employee’s dismissal (or if more than one reason, the principal reason) was that the employee “had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time” that such dismissal would be automatically unfair.[6]Not every act carried out for trade union purposes falls within the scope of s152. Trade union activities should not be used as a cloak or excuse for conduct which would ordinarily justify dismissal: Burgess v Bass Taverns [1995] IRLR 596.[7]There may be a considerable time gap between an employee alleging that they have been automatically unfairly dismissed and the hearing of that claim. Accordingly, s161 of TULR(C)A 1992 makes provision for the Tribunal to make an order for interim relief. It stipulates that such an application must be made within 7 days of termination of employment and must be supported by a certificate from an authorised official of an independent trade union. The relevant test under s163 (1) that the Tribunal must apply on an application for interim relief is that it must be satisfied: “..that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed.”[8]If the Tribunal is satisfied that this test is made out, it must then make enquiries as to whether the respondent is willing to re-employee or re-engage the claimant pending the final hearing. S163 (6) deals with what is to be done if the employer is unwilling to do so and if so: “the Tribunal shall make an order for continuation of the employee’s contract of employment”[9]The test to be applied is that the Tribunal must be satisfied that “it is likely on determining the complaint” that it will find that the reason or principal reason for dismissal is for carrying out trade union activities. It is not sufficient that the employee is able to establish that “it is likely” they were otherwise unfairly dismissed, i.e. for other reasons. They must be able to show that it is likely that it will be found that they have been dismissed for the sole or the principal reason of, in this case, trade union activities.[10]The correct test to apply as to the meaning of “it is likely” is that a balance of probabilities approach is insufficient. The decision of the Employment Appeal Tribunal in Taplin v C Shippam Ltd [1978] ICR 1068 found that it must be established that the employee can demonstrate a “pretty good chance” of success.[11]The EAT recognises the task before the Tribunal in dealing with an application for interim relief is not an easy one as explained in the case of London City Airport v Chacko [2013] IRLR 610 in that an employment judge: “must do the best they can with such material as the parties are able to deploy” and requires “an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material he has”[12]The burden of proof is on the claimant in this application.
The relevant facts
[13]The relevant undisputed facts are briefly as follows: 13.1. The claimant was until 20 June 2017 employed as the respondent’s Regional Secretary for the West Midlands. He had approximately 28 years service. 13.2. The respondent is one of 14 trade unions that affiliate to the Labour Party. This takes place at national level and involves the payment of affiliation fees and gives affiliates like the respondent representation and a voice in the Labour Party. However the two entities are separate and distinct and individual members of Unite have the ability to opt out of affiliation by nonpayment of the political levy. Membership data regarding the two organisations is separate. 13.3. The claimant was issued with a final written warning in 2016 (shown at page 318 of the Bundle) at a disciplinary hearing chaired by the respondent’s General Secretary, Len McCluskey. This related to the claimant’s attendance at a meeting at the Houses of Parliament with a group of Labour MPs who were generally regarded to not be supportive of the current Labour leadership. The respondent formed the view that this amounted to a serious breach of trust. The claimant does not accept that any misconduct had taken place but states he decided not to appeal in order to avoid being dismissed. 13.4. In his role as Regional Secretary, the claimant had attended a meeting of the Regional Labour Party on 28 November 2016, at which it was agreed that the respondent nationally would support the campaign of the Labour MEP, Sion Simon, to become Metro Mayor of the West Midlands and would donate to his campaign. There is no suggestion that there was anything improper in this taking place and indeed this appears to be an element of his role as Regional Secretary. The election for General Secretary of Unite 13.5. In December 2016, the respondent’s Executive Council called an election for the position of General Secretary. The claimant and Mr McCluskey (together with a third candidate Ian Allinson) stood for this position. During the election campaign, Gail Cartmail (one of several Assistant General Secretaries of the respondent) was appointed as Acting General Secretary. The claimant remained in his role as Regional Secretary for the West Midlands during the campaign. 13.6. The claimant and Mr McCluskey were not political allies and both fought a robust campaign with personal attacks being made (by both main candidates and/or their supporters). There were many allegations raised by both parties during this application and thus hotly disputed facts about how the election campaign was fought and I make no findings in relation to these. At the full hearing a Tribunal may have to make findings on a number of these matters, particularly in relation to the claimant’s complaint that he was subject to a detriment for carrying out trade union activities. 13.7. The campaign ended on 19 April 2017 and shortly after the ballot closed on that day, the claimant was suspended from his role as Regional Secretary. An investigation was carried out by Andrew Murray, the Chief of Staff at the respondent who prepared a report, shown at page 77 of the Bundle. The claimant was then invited to attend a disciplinary hearing to face 4 out of 7 allegations that had initially been raised and investigated. Before the disciplinary hearing was held, the claimant raised grievances relating to the manner in which the investigation and disciplinary process had been handled (shown in the Bundle). This disciplinary hearing was held on 15 June 2017 and chaired by Ms Cartmail. As a result of this hearing the claimant was notified on 19 June 2017 that he had been summarily dismissed on the grounds of gross misconduct. This was said to be because 1 of the 4 disciplinary allegations put to him had been made out which was related to the use of a phone bank (which I refer to below).[14]The more contentious matters in this complaint relevant to this application, I refer to below. I set out the position of each party where relevant but I make no findings of fact on issues of dispute: 14.1. It is alleged that a conversation took place between the Unite General Secretary, Len McCluskey and the claimant in Birmingham in July 2015. The claimant says he informed Mr McCluskey that he intended to stand against him in the event of an election coming up. The claimant then suggests that Mr McCluskey told him it was inconceivable for a Regional Secretary to stand against an existing General Secretary and keep his job afterwards. The claimant also makes reference to a later conversation between the two where he alleges that Mr McCluskey told him that he (Mr McCluskey) had been so angry at the suggestion that the claimant would stand that he wanted to turn back from his journey from Birmingham to London to tell the claimant that he would “destroy” him. We have not heard yet from Mr McCluskey on what his version of events is in relation to this alleged conversation. 14.2. The heart of this application relates to the consequences of a complaint said to have been received by the respondent from Steve Turner, Assistant General Secretary about the claimant’s conduct. The allegation was that Labour Party members, who were also members of Unite, were being telephoned from a phone bank of the campaign to elect Sion Simon MEP as the Labour Mayor for the West Midlands and also being asked regarding their support for the claimant in his campaign for General Secretary. A script for the calls said to have been made was shown at page 33 of the Bundle 14.3. The allegation is that the claimant’s campaign was using Mr Simon’s campaign team and Labour party membership data (without consent) to try and persuade members of the Labour Party who were also members of Unite to vote for the claimant in the election for General Secretary. An investigation was carried out into this complaint by Howard Beckett, Assistant General Secretary and he produced a report, which my attention was drawn to on several occasions, and which was shown starting at page 27 of the Bundle. The respondent alleges that this and various other complaints made against the claimant during the campaign, required disciplinary investigation, but that in order to avoid undermining the democratic process, it put off a this investigation until after the outcome of the election for General Secretary could not have been influenced. This is why the respondent alleges the claimant was suspended shortly after polls closed. 14.4. It is said by the respondent that this involved an unlawful sharing of data belonging to the Labour Party by the claimant to support his own campaign, when it should have been used solely for Mr Simon’s mayoral campaign, and this risked seriously damaging relations between the respondent and the Labour Party. The respondent contends that this is the reason the claimant was dismissed and it amounted to gross misconduct. It is pointed out that the existence of the phone bank led to a decision to stop Unite’s donation to Mr Simon’s campaign. It also made reference to difficulties that the Labour Party had recently encountered surrounding the use of data and its particularly sensitivity to allegations of this nature. 14.5. Needless to say, he claimant does not accept this version of events. He denies being aware of the phone banking arrangement and contends that the only evidence was that members of his campaign team had made an arrangement with members of Mr Simon’s team. He also contends that even if there had been such an agreement, it would not have had any adverse effect on the relationship between the respondent and the Labour party. 14.6. The claimant makes a number of complaints about the way he was treated during the election campaign and throughout the subsequent investigation and disciplinary process. He raised many what might be termed procedural irregularities relating to the appropriateness of the decision makers at each stage, the way the various meetings were carried out, the extent of the fact finding process and the lack of evidence. The respondent disputes much of this and I make no findings on these matters and it is not directly relevant to the issues I have to determine. Submissions[15]Miss Jones made a number of submissions in support of the claimant’s contention that he was entitled to interim relief. These were set out fully in the claimant’s skeleton argument. In her oral submissions Miss Jones identified 5 themes, which she said, built a strong case that s152 TULR(C)A 1992 was clearly breached. Firstly she refers to the pre election “warnings” which the claimant states were made to him regarding the consequences of standing against Mr McCluskey, which the claimant refers to in his witness statement at paragraphs 7-10. Miss Jones contends (and it is not disputed) that standing for the office of General Secretary of a Trade Union is a trade union activity. She invited me to make an inference from the pre election warnings together with what took place during and after the election, that the claimant’s dismissal was because of carrying out this particular trade union activity i.e. standing for office. She points out that the particular structure of the respondent, where Mr McCluskey is effectively the line manager of all its employees led to a situation where any challenge to the leadership was seen as disloyal. Therefore the claimant she submits was dismissed to punish him from standing against an incumbent leader.[16]Secondly she contends there was obvious bias throughout the procedures in general and again invites me to draw inferences on the reason for dismissal. She says the investigator of the complaints made against the claimant, Mr Murray, worked directly for and supported Mr McCluskey in his campaign and was therefore not an appropriate person to conduct an independent investigation. She points to various sections of the notes of the investigatory meeting and the witness statement of Mr Waddell which she says support her contention that Mr Murray was hostile to the claimant and the investigation was more of a trial than an independent fact finding investigation. She states that the report he produced (shown at page 77 of the Bundle onwards) goes further than he had the remit to do and effectively passes judgement on the claimant. She takes issue with the fact that the claimant’s two grievances were both dealt with by the respondent’s HR Director, Barbara Keilim, who it is contended had been advising on the very process forming the subject of the grievance and the appeals on these grievances were dealt with by Mr Murray, who had carried out the investigation itself.[17]Thirdly it is alleged that the respondent has effectively admitted detriment on the ground of trade union activities having made 6 allegations against the claimant relating to the election and suspending and instigating disciplinary proceedings on the basis of all of these. As the claimant was ultimately only dismissed on the basis of 1 allegation, the other matters having been found to relate to his activities as a candidate to election, Miss Jones concludes that the respondent is as good as acknowledging that the claimant was suspended and investigated on the basis of carrying out trade union activities. She states that it is not such a jump to then suggest that the dismissal was also for such reasons.[18]Fourthly Miss Jones points to what she says is a paucity of evidence which would justify a dismissal for gross misconduct. She refers to the witness statement of Ms Cartmail at paragraph 42 and alleges that there is no evidence at all to support a finding that the claimant was party to an agreement re the use of phone banks. Miss Jones brought me through the steps taken by the respondent, involving the Labour party, once a complaint was received in relation to the use of phone banks, including an investigation by the respondent General Secretary for Legal Services, Howard Beckett. She highlighted what she saw as a number of flaws with the fact finding and states that there was nothing that could have led Ms Cartmail to the conclusion that the claimant must have known about the phone banking arrangement. She refers to the claimant’s 28-year career with the respondent alleging that in order to justify the dismissal of such a long-standing employee, there is a distinct lack of evidence and findings of fact, again inviting me to draw inferences on the reason for the dismissal because of this.[19]Finally, Miss Jones makes reference to a lack of parity between the claimant and the other main candidate, Mr McCluskey in the way that each candidate’s robust criticisms of each other were handled. My attention was drawn to a number of documents in the Bundle highlighting that campaigning was personal and vitriolic on both sides but argues that all the heavy handed treatment was meted out to the claimant alone.[20]Miss Jones concluded by contending that all the evidence will point to the conclusion that the claimant was subjected to unfair treatment and ultimately dismissed because he took part in the election for General Secretary of Unite and urged me to grant his application for interim relief.[21]Mr Segal for the respondent submitted that many of the points made above were only peripherally relevant to the issue that needed to be determined in an application for interim relief. The respondent says that in order to succeed the claimant needs to demonstrate that he has a pretty good chance of showing that Ms Cartmail, the dismissing office, used a finding of gross misconduct which she did not believe had taken place, as a pretext for dismissing the claimant for carrying out trade union activities. It was submitted that what happened was very far from that conclusion. This was not the usual type of case involving dismissal for trade union activities where it might be argued that the decision maker was “anti union”. Mr Segal suggested this is patently not the case here.[22]In relation to previous warnings, whilst not dealing expressly with the allegation involving Mr McCluskey, firstly the respondent refers to the fact that the claimant had in fact been issued with a formal final written warning, because he attended an event in London, organised by a group contrary to the policy of Unite’s Executive Committee. This post dates the alleged hostility Mr McCluskey had towards the claimant, and this would have been the ideal opportunity to dismiss the claimant had Mr McCluskey been inclined to do this. The claimant was not so dismissed. He also submits that Mr McCluskey did not take the ultimate decision to dismiss the claimant and the dismissing officer Ms Cartmail did not discuss her decision with Mr McCluskey before she made it.[23]In relation to bias, Mr Segal submits that there is one key decision maker relevant to this application, which is Ms Cartmail, and she did not show any signs or even a suggestion of bias. On the involvement of Mr Murray as an investigator, and the suggestion that he made findings of fact which were inappropriate in his role as investigator, Mr Segal refers to the respondent’s disciplinary procedures and in particular paragraph 4.3 of such procedures at page 180 of the Bundle which states that the report of the investigator will include a conclusion. If the suggestion is that Ms Cartmail should not have made the decision because of her previous involvement in complaints relating to the claimant and subsequent investigations, or that Mr Murray showed bias, these are both potentially procedural matters and go to overall fairness under s98(4) of the ERA and had nothing to do with a s152 complaint.[24]There is no acceptance by the respondent that the claimant has suffered a detriment on the ground of trade union activities as suggested by Miss Jones. Mr Segal draws a distinction between activities carried out by the claimant in his capacity as a member of Unite and in his capacity as an employee. He points to the dismissal letter at page 93 of the Bundle and states that the charges that were dismissed against the claimant related to his conduct as a candidate, but this did not amount to an acceptance that this was acknowledged detriment on trade union grounds.[25]In relation to the suggestion that there was a lack of evidence upon which to make a finding of gross misconduct, the respondent suggests that claimant cannot point to one single thing that the respondent should have done and did not do that would have assisted the fact finding. Any lack of facts is down to the claimant refusing to answer questions, submits Mr Segal referring to the claimant’s “evasive” responses to questioning during investigation shown at pages 44, 47, 48, 50 and 52 of the Bundle. He cites various pieces of documentary evidence to support the decision that the dismissing officer Ms Cartmail made that the claimant must have known about the phone banking arrangement including pages 34, 139, 143, 144 and 146 and 205 of the Bundle. He refers to the disciplinary hearing at page 238 onwards of the Bundle and suggests that in light of all this material is it very unlikely that a Tribunal will find that Ms Cartmail was dissembling in relation to her honest belief of what the claimant did know about the phone banking arrangement.[26]In relation to the lack of parity in the way that critical comments were dealt with, Mr Segal submitted that this would only be relevant to the if the claimant had actually been dismissed for aggressive campaigning. In fact, he submits, it had been made very clear by the decision maker that she was not going to take disciplinary action in relation to that sort of allegation. He also made reference to the case of Aslef v Brady [2006] IRLR 576 which states that it is only where there is evidence that an employee has been treated differently to the way that others would have been treated in the same circumstances that this could support an argument of unfairness. As there was no allegation that Mr McCluskey or indeed anyone other employee of the respondent had been involved in an allegation relating to misuse of data, and had been treated differently, lack of parity did not come into it.[27]I was referred to the cases of Azam v Ofqual EKEAT/0113/16/RN and Metrolink Rapdev v Morris UKEAT/0113/16/RN where conduct that was alleged to have been trade union activities but which involved the misuse of information obtained for trade union reasons, did not fall within section 152. Therefore Mr Segal submits, the claimant’s unauthorised use of the phone bank, which he says is the reason for dismissal, was not a trade union activity at all.[28]Finally Mr Segal submitted that my role in the interim relief application was to consider that in light of the information that has been submitted including Mr Beckett’s report, evidence produced by the Mr Simon campaign team and the evasive answers of the claimant, whether it could really be said that it was likely at a full hearing that there will be a finding that Ms Cartmail did not reasonably believe that the claimant was guilty of gross misconduct and had such an antipathy to the claimant for standing against Mr McCluskey as he suggests. He refers to paragraphs 35 and 38 of Ms Cartmail’s statement which he says sets out clearly how she made her decision, and submits that it is not plausible that this is not an honest characterisation of how serious she believed the claimant’s conduct to be, and how damaging this could be to the relationship between the respondent and the Labour party. He questions whether at a full merits hearing, the claimant likely to persuade a Tribunal that Ms Cartmail would not have equally dismissed another employee for this offence. For all of the reasons above, he submitted the claimant’s application should fail.[29]I could see the force of some of the submissions made by Miss Jones for the claimant on his complaints generally, but for the purposes of this application, I preferred the respondent’s main submission. I have concluded that it is not likely that the claimant can show that Ms Cartmail of the respondent used a finding of gross misconduct as a pretext for dismissing the claimant for carrying out trade union activities. There does not appear to be any evidence raised that Ms Cartmail was hostile to the claimant or acted on the instruction or under the control of Mr McCluskey as seems to be alleged. I am very much alive to the fact that it is rare that in this type of case that direct evidence of dismissing because of trade union activity will be available. This is perhaps even more so in this particular case where the trade union is also the employer. It may be that evidence of ulterior motive will be explored further at the final hearing, but on the information I have seen to date, nothing suggests to me that Ms Cartmail did not genuinely believe that gross misconduct had taken place and dismissed the claimant because of that belief. That being so, I cannot say it is likely that the claimant has a pretty good chance of being able to show that the respondent dismissed him for a reason other than misconduct, let alone that the dismissal was for carrying out trade union activities.[30]The pre election warnings relied on by the claimant may form a key part of the claimant’s evidence in the hearing of this case perhaps to support his allegation of ulterior motive. It is to be remembered that we have not heard from Mr McCluskey on this matter. All the evidence will have to be examined in full at the merits hearing, but at this interim stage, I do not believe that even if such warnings were made, this point particularly leads me to conclude that the claimant has a pretty good chance of showing that his dismissal was for trade union reasons. This evidence would have to be given sufficient weight by a tribunal to displace the clear evidence to be given by Ms Cartmail and in particular the documentary evidence I have already seen. The respondent has produced today a clear paper trail showing a complaint being received, investigations being carried out and a disciplinary decision being made. It is insufficient for the claimant to rely on various circumstances that might make it possible for an inference to be drawn that a decision maker had an ulterior motive. Something clearer is required to establish a pretty good prospect of success.[31]Whether or not the activities in question amounted to trade union activities is a separate question and evidence will need to be called and submissions made on this. The claimant’s case is that it is the wider trade union activity of standing for election at all (in particular against Mr McCluskey) that amounts to the reason for dismissal. As I have stated above, I do not see that the claimant has a pretty good chance of being able to establish this as the reason he was dismissed. The respondent deals with the matter further that even if the trade union activity in question relates solely to the phone banking it says led to dismissal, this is still not, it says, a trade union activities dismissal, as this amounted to an engagement in such activities dishonestly and in bad faith (as per the Azam and Morris cases referred to above). These are two different factual questions and require a different factual and legal analysis. On either basis, on the information available to me, I do not see that the claimant has a pretty good chance of succeeding on either argument.[32]As to suggestions of bias, this is a matter that is directly relevant to the claimant’s complaint for unfair dismissal under section 94 of the ERA. Procedural failings alleged by the claimant will no doubt be explored in detail at the final hearing. I understand that the claimant raised these to invite me to draw inferences on the motive for dismissal. However I am not prepared to draw that inference. Whatever the merits of the arguments on bias, they rely on inference rather than facts, and did not particularly assist me in determining whether the claimant’s dismissal was likely to be found to be for carrying out trade union activities.[33]In relation to the argument that the respondent effectively concedes that the claimant was subject to detriment on the grounds of carrying out trade union activities, this application for interim relief does not relate to the claim made by the claimant regarding detriment under section s146(1) TULR(C)A 1992. That is clearly a matter for the final hearing of his claim and I make no findings or conclusions in relation to that. The only issue here is likelihood of success in his claim that he was dismissed for carrying out trade union activities. As all the matters referred to here are acknowledged by both parties to have been dropped and Miss Jones herself stated that only 1 allegation led to his dismissal the other 6 having fallen by the wayside, I do not accept that this sheds any light on the reason for dismissal.[34]On the paucity of evidence point, this does not directly assist in supporting the claimant’s case that his dismissal was for trade union reasons and I do not find it persuasive enough to draw inferences on motive. It has direct relevance to in determining the fairness of the dismissal generally and deciding whether the respondent is able to meet the tests set out in s98 ERA 1996 and further clarified by British Home Stores v Burchell but this is not relevant to an application for interim relief.[35]The key issue that is going to have to be decided by the tribunal in the full unfair dismissal complaint is what the reason for the dismissal was. There are conflicting reasons put forward by the claimant and the respondent, which a tribunal will need to consider. Detailed application of the burden of proof provisions applicable can only take place at a full merits hearing when the facts have been properly found. For the purposes of this application for interim relief, there must be some hard evidence that gives the claimant a pretty good prospect of succeeding at the full merits hearing in showing that the reason for the termination of his employment was for trade union reasons. This would need to be sufficient to displace the evidence produced by the respondent today regarding the decision made by Ms Cartmail. The test is a higher test than just establishing likelihood of success on the balance of probabilities. I am not even satisfied at this stage that even on a balance of probabilities basis, that the claimant could show he was dismissed for carrying out trade union activities.[36]It is not a case where I am able to conclude that the claimant has a pretty good chance of succeeding in this particular element of his claim as the weight of evidence I have seen does not point to such a conclusion.[37]The application for interim relief is therefore rejected. Directions for further conduct of the case[38]The respondent was due to submit its response to the claim by 26 July 2017 and I determined that this timescale should remain as it was. However I ordered that the other standard directions should be removed and the parties would endeavour to agree directions and revert to the Tribunal if they had any difficulties with this.[39]The hearing had already been listed for full hearing on 13 & 14 September but it was acknowledged by all that this was unlikely to be a sufficient amount of time and a 5 day hearing was more likely to be required. The parties would check witness availability and contact the Tribunal to make any further applications required regarding the full hearing which would be considered in due course.