Siebe Plc v Baker [1992] UKEAT 505_92_3007

EAT

Siebe Plc v Baker

[1992] UKEAT 505_92_3007 · 1992-07-30

MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal by Siebe plc against two decisions of a Chairman of an Industrial Tribunal sitting at Reading, those decisions being notified by letters from members of his staff. The first is that dated the 19th June 1992, refusing an adjournment of a hearing to take place on the 19th August. The second is a refusal of the 29th July, to hear any application to set aside Witness Orders which were issued on an ex parte application by the Applicant.

Before looking at the details of the chronology and what occurred in this case it is right to emphasise that although these normally would be thought of as questions for a lawyer to decide the two Industrial Members sitting with me join my impression of being greatly disturbed by what has taken place in this case. They take the view, and I agree with them entirely, that this has produced an unfair situation.

On the 14th February 1992, the Applicant, Mrs Baker issued an Originating Application alleging unfair dismissal by the respondent Company. She had been employed from April 1987 and her employment was terminated on 7th January 1992. It was said that she was redundant. She was the Assistant Director of Planning, earning a salary in excess of £16,000 for a 22 1 / 2 hour week. The Notice of Appearance, the IT3, is dated 11th March 1992. Within two days of that document, a notice is received from the Industrial Tribunal at Reading saying that the application will heard at Reading on Wednesday 19th August at 9.45 am and it adds these words thereafter:

"Unless there are exceptional circumstances, no application for postponement will be entertained if received more than 14 days after the date hereof. Any such application must be in writing and state the full grounds."

By a letter of the 18th March, which must be approximately 4 days after receipt of that Notice, Solicitors for the Company write acknowledging the Notice of Appearance saying this:

"We have been informed by our clients that the hearing of this matter has been set for Wednesday 19th August at 9.45 am. Due to the fact that the staff of our client company who are required to be called as witnesses to this Tribunal hearing will be away on holiday at this time. We would be grateful if you could decide that the hearing may be adjourned to sometime after the middle of September."

This Company is a large Company employing some 32,000 worldwide; it is a substantial Company. It is a Company like many engineering companies which finds it most convenient to shut down for the holiday period and we are told it is shut down for August. That letter of the 18th March receives a reply of the 23rd March which says:

"The Chairman of the Industrial Tribunals directs me to request full particulars of the relevant witnesses, the dates of their holidays and when they were booked.

Please reply by 31 March 1992 when the Chairman will reconsider your request."

One might read that as an indication that a fresh date was going to be arranged once the dates of the holidays were known. But in any event, however it could be read, it is right that the Solicitors acting for the Company did not reply before the 31st March but were dilatory in replying until the 21st May, a gap of two months. They start their letter of 21st May by saying:

"Unfortunately due to work commitment our client has been unable to report to us regarding the hearing date of the above matter.

Our client's two directors who are the witnesses on the respondent's part are away on holiday at the time. They are Mr Coles and Mr Cheek. Holidays have been arranged with our client's families too and were booked at the end of last year.

Please confirm that a new hearing date can be given towards the end of September or afterwards as the 8th September is also inconvenient for our clients."

That is a form of letter which would not be unexpected in view of the fact that August is a holiday month as everyone knows.

On the 22nd May the reply indicates that the two month lapse is unfortunate, that the listing is now for October/November, thus it is unfair to the Applicant that the hearing should be so long delayed by a clients inaction and that there had been a Direction that a copy of the letter be sent to the Applicant to seek her views.

The Applicant indicated in a letter of the 26th May that she felt that she would be prejudiced by any delay. On the 2nd June the letter from the Tribunal refuses to postpone. So that is approximately 2 1 / 2 months before the date fixed in August.

On the 16th June a longer letter is sent by the Company Solicitors to the Secretary of Tribunals at Reading. This indicates that they accept that their clients were slow in providing the information. They renewed their Application because of the prejudice in the present case that those two witnesses were essential witnesses and it would be unreasonable to ask them to cancel their holidays; accordingly the Company would be seriously prejudiced because the Company would be unable to present its case. They continue:

"It really cannot be procedurally or substantively fair, or in the interests of justice, that the Tribunal should conduct a hearing without hearing our clients' evidence."

Then they go on to contrast that:

"Mrs Baker will suffer no such prejudice in the presentation of her case if the matter is delayed.

. ... this is, of course, the first occasion on which the matter has been listed for hearing."

and to indicate their goodwill that they are not attempting to delay. They offer to take a date in July if necessary and fit it in so as there should be no delay. It is therefore quite apparent from that letter, if it is to be believed (and there seems to us no reason not to believe it) that if this case continues on the 19th August the Company will be unable to present its case and that those two witnesses, who are essential, will be abroad on holiday, which holiday has been fixed with their families, since the end of 1991.

By a letter of 19th June that further application is refused; on the 14th July there is a request for the reasons in writing, for that refusal. Those reasons have never been received. The result is that Mr Howe advised his client and hence this ex parte application at the last minute that they would be unable to appeal without some reasons against which to appeal. No reasons have been provided. There the matter rests so far as that adjournment is concerned and its refusal.

The second matter concerns the Witness Orders. On the 23rd July the Industrial Tribunal issued Witness Orders on an ex parte application, those Orders are against a Mr Bouncey, who is Director of Planning and Mr Stevens, who is the Chairman of the Company. They require the attendance of those two witnesses on Wednesday 19th August of the Industrial Tribunal at Reading. The usual provision is placed that a failure to comply with the Order may result in a fine, that is after prosecution and then there is a note at the bottom which reads:

"This Order is issued pursuant to Rule 4(1) Industrial Tribunals Rules of Procedure 1985. The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed, but can only do so for good cause. No such application can be entertained unless made before the date of the hearing specified above."

That was received on the 27th July. On the 28th Solicitors acting for the Company wrote asking to be allowed to be heard to apply to set aside those Orders. The reply dated 29th July 1992 reads as follows:

"In response to your telephone call of 28 July 1992 and your fax of 28 July 1992, the Chairman instructs that the case remains listed for hearing on Wednesday 19 August 1992. The witness orders were issued at the request of the applicant. They will NOT BE WITHDRAWN."

Looking first at the refusal to adjourn, no reasons have been given at all. There has by implication, due to the length of time, been a refusal to give reasons, that is the only understanding that this Court can have of the behaviour of the Chairman in this case. May we add at once we do not know the identity of the Chairman, whether it is one or more Chairmen who have been dealing with this matter.

Secondly, the letter sent out of the hearing included that Notice indicating that the discretion of the Tribunal would be fettered and it seems to us that no court should start any consideration of what is fair, just and reasonable in all the circumstances in the exercise of its discretion with a fettered discretion.

Thirdly, it seems to us that the evidence was overwhelming that this was a genuine application for an adjournment made within, four days of the Notice of Hearing by responsible Solicitors, instructed by a substantial Company, giving reasons which on the face of them seem to be sound. One would expect holidays in August; one might expect of an engineering company that they would shut down in August, and the view of those sitting with me, and indeed of myself, is that there was here an error of law in the refusal of the reasons and in the fettering of the discretion and thirdly that therefore this Court is able to make any Order that could have been made by the Industrial Tribunal. That power is given to us under paragraph 21 of the 11th Schedule of the 1978 Act.

Applying our discretion to the facts of this case, bearing in mind the prejudice in that this Company will simply not be able to provide a defence to the claim, because it will not be able to produce its evidence as against the delay, which might have been very much less if this matter had been dealt with earlier, we reach the only possible conclusion namely, that fairness demands that this matter be adjourned. That is the proposed, Order, and that is the Order which we shall make. So that to summarise the situation here there is in our judgment an error of law in the approach of the learned Chairman, we are therefore in a position to exercise our own discretion and we unhesitatingly decide on the balance and looking at the history of this matter, that fairness demands that this case be adjourned. It will therefore be adjourned from the 19th August to a day to be fixed after the 8th September as decided by the learned Chairman.

The second matter also causes us anxiety. The document which is served upon the witnesses reads as I have already indicated that an application can be made so long as it is made before the date of the hearing. This application was made before the date of the hearing. The rules of the Industrial Rules, Rule 4(2) states specifically that a party may apply to the tribunal, on notice, before the appointed time at or within which the requirement to be complied with, to vary or set aside the requirement. This learned Chairman has denied this party, this respondent, the opportunity to apply, he refuses even to listen to an application. That cannot, in our judgment, be justice and we simply indicate that his refusal will be set aside and while it is not a mandatory injunction or anything like that, it is his duty, in the view of this Court, to listen to the application and if he feels very strongly about it it may be advisable for a different chairman to listen to the application and deal with this matter. In passing, we also note that the contents of the application, the letter of making the application, has not even been sent to the Solicitors for the respondent Company.

We might just end by saying that we hope that we have not been over-emphatic in our comments but this is a case where we all feel that the situation has gone sadly wrong and the sooner the position is rectified in our judgment the better.