Green & Ors v Whittington [1991] UKEAT 351_91_1107

EAT
Green & Ors v Whittington
[1991] UKEAT 351_91_1107 · 1991-07-11
MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal against a refusal by a Chairman of Industrial Tribunals sitting in London (North) to vacate a date fixed for a Hearing of the 25th and 26th July of this year. Put thus bluntly, it would seem a Decision is well within the exercise of a broad discretion. This case has a history behind it.The Applicant is Mrs Whittington and she brings proceedings against a practice of four doctors for whom she worked as a Practice Manager alleging unfair dismissal. She alleges unfair dismissal on the 11th December 1990, and her Originating Application is dated 30th January 1991. She has throughout been represented by Solicitors; the Partnership are being represented through the British Medical Association and the gentleman dealing with it there is Mr Deval who has the appointment of an Industrial Relations Officer. From the correspondence and from the way he has addressed us it would seem that he acts in a number of Industrial Tribunal proceedings where the allegations are made against a practice of unfair dismissal or redundancy.The Notice of Appearance was postponed by consent, for a short while, and ultimately in April of this year the Office sent out a form indicating that the date appointed for the Hearing was the 9th May 1991. It does not seem that there was any consultation before the appointing of that date and that may be in accordance with normal practice; we make no criticism of any kind.On the 16th April, some four days later, Mr Deval asked for a postponement because one of the Partnership had to enter hospital, and was going to be away from work until early in June; he also indicated that he thought two days would be necessary for the Hearing. The parties were asked for dates which should be avoided between the 15th July and 30th August. There was a discussion between Mr Deval and the Partnership, and it was evident that certain dates were indicated as those which should be avoided, namely the 22nd July to the 18th August, but in fact, due to an error the period notified to the Industrial Tribunal was from the 29th July to the 18th August, thus the dates fixed of 25th and 26th July fell outside that period.Mr Deval received notification of those dates by a Notice dated the 10th June which may have arrived with him on the 11th, possibly the 12th if it was second class post. He rang up the Partnership and realised at once that he, personally, had made an error. So on the 13th June he wrote to the Tribunal saying, and admitting, that he was personally responsible he said:

"This error is entirely my fault"

and that a key witness was going to be away for those periods, those two days, and would be abroad. He apologised for the inconvenience and hoped to look forward to other dates being agreed. Thereafter there was a notification dated 21st June, that the Application had been refused, the 21st is a Friday, it was probably received by him on the Monday, and on the Tuesday, the 25th, he wrote again saying that the Respondents principle witness would not be available and repeating again the matter was entirely and "error by myself."He received a 'phone message indicating that his Application was not going to be successful, and he wrote again; that letter was the 1st July and he asked again, in the same terms that this should be postponed; there was a reply by 'phone on Thursday 4th July, saying "no". Never at any time, have any reasons been given for the Decisions of the learned Chairman, and we make the assumption although we do not know, it was the same learned Chairman who was dealing with the matter throughout.Now the applications for the adjournment was made some 6 weeks or so before the two days appointed and it was seen that there could be no administrative problems involved in changing the dates; the two dates of the 25th and 26th could easily have been filled by another case. It is not suggested that the error was not a perfectly genuine error; and it is not suggested it was negligent in any way, it was simply a human error. The Members of this Tribunal find it difficult to understand, without any reasons at all on what basis an adjournment some 6 weeks before the relevant date could have been refused within the discretion available to an Industrial Tribunal Chairman; however, this situation has arisen from time to time and this Court can only interfere if there has been an error in the exercise of the discretion on the basis of WENESBURY principles, or if possibly, and still if, we feel that the Decision was wholly wrong.We are grateful to Mr Deval for drawing our attention to a very old case in 1981 of Giblett v Manpower Services Commission AC 249, 1981. This was a case of discrimination when the Appellant, Mrs Giblett was in person, and the Treasury Solicitor instructed Mr Aylett of Counsel on behalf of the Manpower Services Commission. Shortly before a day fixed for the Hearing Mrs Giblett had applied for an adjournment because she said that she had not had sufficient time to look at documents which had been served on her and she also wished to call a further two witnesses. The situation was that her applications had been refused; on the day of the Hearing she still repeated the request and the Tribunal decided to hear the evidence of the Commission. They did so, Mrs Giblett declined to enter into the proceedings and said she still wanted her adjournment, it was unjust and unfair to her and she was not going to take part; she wanted an adjournment. The Tribunal decided against her; she was refused the adjournment, and inevitably her case failed.The learned Judge giving the Judgment of this Court, and we read from page 5 of the transcript, it says this between "B" and "C":
"It is a fundamental principle of the administration of justice in the industrial tribunals, as in other field, that you should hear both sides. Of course, if you come the conclusion that one side is deliberately dragging its feet, or that it is playing fast and loose with the tribunal, or that it simply does not turn up, justice to the other side may require that you hear and decide the case for the other side alone."
Perhaps the most important part, which we now go on to read:
"But considerations of administrative convenience must not be allowed to infringe the fundamental principle."
There have now been placed before us in the present case, documents which were not before the learned Chairman and the correspondence and the documents indicate that from a time in May of this year, those acting on behalf of Mrs Whittington have been anxious to ensure that all four members of the Practice attend at the Hearing; they indicate that if no assurance to that effect can be given they are minded to seek "witness orders".The reply is given on the 17th June from Mr Deval indicating that it was not reasonable for all four to be present, but the matter is taken up again in a letter of the 24th June, by the Applicant's Solicitors and ultimately when his error has been recognised by Mr Deval finally on the 1st July, he indicates:
"That as you have expressed a wish for all four doctors to be present won't you support my application for an adjournment"

the answer is

"no, we have instructions to oppose it strongly".The situation therefore is this, that the holiday arrangements of the Practice were well known, Mrs Whittington probably knew them herself because she was the Practice Manager; there was no question of "dragging feet" or playing "fast and loose"; there was simply an error, notified at once, some six weeks before the date fixed, and moreover, an invitation that all four partners should be present and clearly one of the partners cannot be present on those dates.Mr Waithe, who has said everything that can properly be said on behalf of Mrs Whittington, points out that Mrs Whittington is suffering from a bowel condition, that stress is a problem, and should be avoided.What could happen here if this case went on to be heard for these two days? Dr Hanak, who is the principle witness, would not give evidence; the matter would be adjourned or if it was not adjourned it would be done so in the "teeth" of the Decision in Giblett v Manpower Services Commission ; if it was refused it is likely that the matter would end up again in this Court, and in any event the stress caused to Mrs Whittington by a further adjournment over for a single day, would probably be even greater than the unfortunate stress under which she is suffering at the moment. Moreover, it has been pointed out by one of the lay Members of this Court, with experience of industrial tribunals, it may be some considerable time before the same Members of an Industrial Tribunal can be asked to attend and arrangements can be made for them to attend on the adjourned hearing. I would also add this, that these "split hearings" are undesirable from every point of view and if they can be avoided and reasonably avoided then they should be.The position therefore is this, that applying the principles of the WENESBURY case, we, as an appellate Court, can only interfere if we feel either that the learned Chairman took into account something that he should not have taken into account; or that he failed to take into account something he should have taken into account; or that the Decision was plainly wrong. In this case, it is quite apparent from the documents placed before him, that he was unaware of the fact that Mrs Whittington was insistent that all four members of the Practice should be present and was going to seek "witness orders" and in fact that assurance was not given. That factor, in our judgment, is clearly a most important factor, which would affect the exercise of the discretion.We feel, therefore, that the Decision cannot stand and we would direct that the dates of the 25th and 26th July are vacated, but we would encourage, and Mr Waithe has impressed upon us, the importance of finding dates as soon as possible, even if needs be by vacating other matters for this case to be heard, and we would agree two days seem to us, possibly even three, but two days certainly, should be available for the Hearing.It follows therefore that this Appeal is allowed and the Order made accordingly.