British Telecommunications Plc v Doran [1993] UKEAT 223_93_2503

EAT
British Telecommunications Plc v Doran
[1993] UKEAT 223_93_2503 · 1993-03-25

JUDGE J PEPPITT QC:

This is an application by the Respondents, British Telecommunications plc, by way of appeal from the Tribunal Chairman sitting in London (South) refusing the Respondents' application to adjourn the hearing of the Applicant's application listed to be heard on one day, 29th March 1993. The 29th March was appointed as the day of hearing as long ago as last October. Originally the application made by the Applicant was a complaint of sexual discrimination but in March of this year leave was granted to enable the application to be varied so as to entitle the Applicant to complain also under the Equal Pay Act.At the same time, on the 10th March 1993, an Order for Discovery was made on the Applicant's ex-parte application, the effect of which was to direct the Respondents to afford wide ranging discovery relating to the Applicant's job description; the scales of benefits which would ordinarily be payable; a summary of training forecasts and so on. The Respondents had the opportunity to apply to the Tribunal to vary or set aside the Order for good cause. They did so, by a letter dated 23rd March to the Regional Office of the Tribunals, just within the period within which the discovery was to be afforded.When the matter came before the Chairman on the 22nd March 1993 at the London (South) Industrial Tribunal, she rejected the application on the following grounds:
"I refuse the request for a postponement for the following reasons. In my view the amendment of the Originating Application clarifies but does not alter the basis of the claim. Furthermore, the Applicant objects; the hearing has been arranged for one day since October without objection; witness orders have been issued, it is already nearly a year since the termination of the Applicant's employment, and it will be very difficult to re-arrange a hearing date in the near future. As to the last two matters, it is important that this case should be heard whilst witnesses can still recollect what happened. I have a discretion and in all the circumstances of this case I consider that the request should be refused. I have ordered accordingly."
The Chairman was entirely right when she indicated in her Order that the decision which she made was a matter of discretion. In those circumstances our powers to interfere are circumscribed; we can do so only if she took into account matters which she should not have taken into account or failed to take into account matters which she should have taken into account. Or if viewed in its totality we come to the conclusion that the Order was plainly wrong.Mr Carr, on behalf of the Appellant, says that we are entitled to interfere applying that test. First of all he says, that although the matter is by no means clear his clients in no way accept that the amendment of the proceedings on the 9th March of this year, did no more than, as the Chairman put it, clarify the basis of the Applicant's claim. He would contend that if it did not significantly extend it, it certainly altered its emphasis. But whatever may be the true position about that, the fact is that on the following day, on the Applicant's ex-parte application, a wide ranging Order for Discovery was made which is still the subject of an application by the Respondents to set aside in part. If the amendment granted on the 9th March did not significantly alter either the emphasis or the scope of the application, we find it difficult to see why the Applicant waited until the 9th March to make her application for discovery in circumstances where her claim was listed for hearing on the 29th March as long ago as last October. It seems to us to be inequitable to permit an Applicant to wait between October and March to decide finally how she wishes to present her case and then to require the Respondents to afford full discovery; to assess the effect of that discovery on the witnesses they propose to call and to prepare finally for trial, all within a space of no more than three weeks. That was a factor which it seems to us the Chairman did not take into account. Nor it seems did she take into account the fact that the extent of the discovery ordered would or might significantly extend the length of hearing. At the moment only one day has been reserved for the case. Mr Carr tells us, and we can readily understand, that in the light of the discovery ordered, the likelihood is that the case will last between two and three days. It would be unsatisfactory from everybodys point of view to have one day's hearing and then adjourn to a future date. Far better for the convenience of the parties and of the Tribunal to have the hearing at one stretch. Furthermore, says Mr Carr, the likelihood is that if the case were heard for one day on the 29th March and then adjourned for a further two days, at some unspecified future date, the decision would not be reached significantly, if at all, earlier than would be the case if the whole matter was adjourned.For those reasons, therefore, we have come to the conclusion that the Chairman's exercise of her discretion was plainly wrong. But we are also told that in the light of the discovery ordered relating to the fairness of the Appellant's job evaluation programme the Respondents would wish to call Mr Hussey, who was in overall control of that programme, to explain how it applied to the Respondent on the one hand, and to a Mr Bone, who she puts forward as a comparator, on the other. Mr Hussey we are told will be in Luxembourg on the 29th March. It may well be that if we refuse this application Mr Hussey's trip to Luxembourg could be postponed, or someone else could give the evidence which he would otherwise have given. But having regard to the fact that the Respondents have had only three weeks to make arrangements for Mr Hussey's attendance, we feel that that is another factor which we are entitled to take into consideration and it was a factor which was not before the learned Chairman. Accordingly, even if, contrary to our view, the exercise of the Chairman's discretion can be justified we would regard it as appropriate to grant the adjournment sought in the light of this factor which was not before her. It follows that the hearing on the 29th March in our unanimous view should be vacated, and this appeal accordingly succeeds.