Indrayen v John Delaney-Access Hotels (London) Ltd [1993] UKEAT 399_91_1210

EAT
Indrayen v John Delaney-Access Hotels (London) Ltd
[1993] UKEAT 399_91_1210 · 1993-10-12
MR JUSTICE KNOX: This is a full hearing in an appeal by Mr Indrayen from two decisions, one a decision of the Industrial Tribunal sitting at London (South) on the 18th March 1991 when it decided that Mr Indrayen's application against his employers, Access Hotels (London) Limited, should be dismissed, and secondly, a refusal to review that decision.The application was based on a claim of discrimination contrary to the Race Relations Act 1976 against Mr Indrayen. His employment by those employers was of some 2 1 / 2 months duration from the 9th April 1990 to the 25th June 1990.At the preliminary hearing, which occurred on the 26th March 1992, the Notice of Appeal of Mr Indrayen was considered at some length and the Tribunal at that stage of which I was in fact, by coincidence, a member, ordered that the appeal be allowed to proceed to a full hearing of this Tribunal on a limited basis, namely first, whether there was an unlawful refusal to grant an adjournment on the 18th March 1991, secondly, whether there was a wrongful failure to deal with an application on the 16th March 1991 for the Respondents to be debarred from defending the Originating Application for failure to comply with an Order for Discovery dated 11th March 1991. Those are two quite separate points but they are the only ones that survive because although there was a very lengthy Notice of Appeal on the preliminary hearing consideration there was a conclusion reached that there were only these two matters that warranted a hearing by the Tribunal inter partes. I therefore turn to look at these two outstanding matters. First the refusal to grant an adjournment.We have had not only the benefit of the matters that were before the Industrial Tribunal, to which I must come in a moment, but also a clarification from the Medical Practitioner, Dr Ruth Heinsheimer, who was advising Mr Indrayen in mid-March 1991. She has said, in a certificate dated 1st October 1993, the following:
"I saw Mr Indrayen on 13.3.91 in the surgery.
He c/o [which we take to mean complained of] continuation of pains for which I prescribed Paramax.He was due for hospital review 19.3.91. I issued him with an NHS certificate that he was unfit to work for 7 days on that occasion.He would therefore have also been unfit to attend court (Industrial Tribunal) during that time (ie 18th and 19th March 1991)."We proceed on the basis that it is now shown that Mr Indrayen had a medical condition on the 13th March which, in the opinion of Dr Heinsheimer, rendered him unfit to attend court. We would only observe in passing, that we would respectfully doubt whether the conclusion that is stated in the certificate that because he was unfit for work he therefore was unfit to attend an industrial tribunal, necessarily follows. However, it is not necessary to go into that aspect of the matter because we approach the matter, as I have said, on the basis that there was such a medical condition in fact. That, however, is not the question which at the end of the day this Tribunal has to address. The question which this Tribunal has to address is whether there was an error of law in the decision of the Industrial Tribunal and to assess that it is necessary to look and see what the material was that was before the Industrial Tribunal. In the course of the Industrial Tribunal decision, there is a fairly lengthy account of the course that the proceedings took. We need not read the whole of that.There was an application for an adjournment and indeed, several applications, for an adjournment in January 1991 and eventually, but not at first, Mr Indrayen succeeded in obtaining such an adjournment.After that, there was sent a pre-listing letter to both parties on the 9th January 1991 for a hearing date between the 1st and 29th March. The Respondents replied to that but Mr Indrayen did not and in the light of that state of affairs the Tribunal on the 12th February 1991 notified both parties that the hearing would take place on the 18th and 19th March.The next thing that happened, in practical terms, was that on the 14th March, that is to say rather more than a month after that notification, Mr Indrayen wrote in a letter asking for an adjournment in which he said this:
"I am sorry to inform you that unexpectedly for last few weeks I am not well enough and sick at present and feel unable to attend and present my case on above dates [that is to say the 18th and 19th March]. Under the circumstances I had no alternative but to request that the hearing may please be postponed and fixed for some much later dates."
and he enclosed a medical certificate which is the form that is commonly used by medical practitioners when certifying that a person is, or is not, fit to either stay away from, or return back to, work. It has printed on it two possibilities(a) you need not refrain from work and(b) you should refrain from work, and then there are spaces in which one can either fill in a period of time for which one should refrain from work or a date by which one can go back to work.The Industrial Tribunal recorded the receipt of that letter of the 14th March, from which I read extracts, and that it enclosed a photostat of a certificate that the Applicant was unfit for work for seven days. It also recorded the fact that another edition of that certificate had reached the Tribunal on the 18th March, which was, it will be remembered, the day when the hearing was due to start. The 18th March in fact was a Monday and it follows that Mr Indrayen's application on the 14th March was made on the preceding Thursday and reached the Industrial Tribunal on the Friday.Going on with the Industrial Tribunal's decision it said this:
"A photostat which appears at page 43A of the Tribunal file is different from another copy that arrived from the applicant at the Tribunal this morning 18 March 1991. The one that arrived this morning, has crossed out of it the words:
`You need not refrain from work' and leaves in: `You should refrain from work' whereas the one sent to the Tribunal on 14 March does not appear to have anything crossed out of it."We questioned Mr Indrayen today, to see if he had any explanation for this aspect of the matter and he informed us that this was as a result of his having gone to his doctor and secured the second edition, as we can perhaps call it, described by the Industrial Tribunal. Of course, the Industrial Tribunal did not have the benefit of that explanation.The Industrial Tribunal records that the medical certificate that was received on the 14th was put to the Regional Chairman, he refused the adjournment, unless the Respondents agreed and the Respondents disagreed. There were further representations made on that Friday, 15th March, by Mr Indrayen, who had been told that an adjournment was refused and Mr Indrayen protested that an adjournment had been refused to a sick man. The matter was referred back to the Regional Chairman and he again refused the adjournment. The decision continues:
"The applicant then made a number of telephone calls to the Tribunal. He made it clear he was not going to attend this morning. [That is the Monday 18th]. He did not attend. We have proceeded in his absence. He has telephoned this morning twice to see what is going on, but has not as I said, attended."
The Industrial Tribunal recorded its conclusion that they were satisfied that it was in the interests of justice that they did proceed and they said that in the light of the Applicant's course of conduct they were satisfied that his failure to attend had not been motivated by ill-health but by other reasons.The discretion that the Industrial Tribunal had to exercise arises under paragraph 8(3) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 which gives a wide discretion to a Tribunal if a party fails to appear at a hearing or to be represented at it. The Rule, so far as relevant reads as follows:
"If a party shall fail to appear or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant dismiss, or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date:"
That, as we see it, is the discretion that the Industrial Tribunal had to exercise. In the context of an appeal to this Tribunal, which only has jurisdiction to deal with questions of law, it has been held, in relation to the closely similar discretion that arises whether or not to adjourn a hearing, under Rule 12(2)(b) of the Industrial Tribunal (Rules of Procedure) Regulations, that before this Tribunal, the Employment Appeal Tribunal, can interfere with the exercise of such a discretion it has to find that the Tribunal or its Chairman has taken some matter which was improper to take into account or has failed to take into account some factor which it was necessary to take into account in order that the discretion might be properly exercised. Or, alternatively, if this Tribunal does not find that, it has to find that the decision that was made by the Industrial Tribunal or its Chairman in the exercise of its discretion was so far beyond what any reasonable tribunal or Chairman could have decided that this Tribunal is entitled to reject it as perverse. I derive that from what the Court of Appeal approved in a decision Carter v. Credit Change Limited [1979] IRLR 361.We were troubled by the lateness of Mr Indrayen's application for this adjournment and we therefore gave him an opportunity of telling us how long the condition had lasted. He said to us, in answer to the question, when his appointment to see the consultant, which it will be recalled was on the 19th March at 9.15 am, had been made, that he had had a slight chest pain but it did not respond to treatment and, indeed, became somewhat worse and that that was why he was referred to the Brompton Hospital. At first, in addressing us he put it at early March. Subsequently he said that it was on the 7th, 10th or something like the 15th March that the appointment was made.It is not, of course, for us to make findings of fact, because Mr Indrayen was not giving us evidence, he was not sworn and we have not taken any formal evidence, but we were concerned to see if there were matters that he wished to place before us to amplify the position, as it was pretty clearly stated in his own letter, namely, that his ill-health and inability to attend had lasted for the last few weeks. I quote those words "last few weeks" from his own letter of 14th March 1991 and nothing that we have heard today from Mr Indrayen leads us to believe that he was not telling the truth when he used those words in that letter on the 14th March.That leaves the question of whether the Industrial Tribunal had material before it upon which a Tribunal, properly instructed, could, without perversity, reach the conclusion that it did reach, namely that it should continue to hear the proceedings in Mr Indrayen's absence. It seems to us that there was material both ways. There was material that would lead an Industrial Tribunal, looking at it dispassionately, to think that Mr Indrayen's health was not by any means perfect and that a medical practitioner thought that he ought not to go to work and there was evidence that there was an appointment to see a consultant on the second day fixed for the two day hearing. On that side there was material that would be taken into account in deciding whether or not to grant an adjournment. But there was a good deal of material on the other side. There was the fact that the medical certificates were not absolutely identical. That has now been explained to us but was not then. More seriously, there was the fact that there had been a very long time, over a month, when the parties were notified of this hearing and there was a very late notification on the Thursday before the Monday of a condition which on the face of the application had been continuing for some few weeks.Thirdly, there was the circumstance that the Applicant was out when he was telephoned on the 15th March, the Friday, to be contacted by the Industrial Tribunal and that was an indication that he was at any rate, mobile, if not fully fit.If one puts all the matters on each side of the scales it becomes clear that it was a matter upon which discretion had to be exercised. It is no part of our functions to exercise the discretions ourselves and it is not our business to say what we would have decided had we been in the Industrial Tribunal's shoes. What we have to say is whether the Industrial Tribunal was so far in error, in relation to its exercise of its discretion, that it can properly be described as a perverse exercise and therefore have to be satisfied by this Tribunal. We are not so satisfied. It seems to us that the conclusion, perhaps a strict one, was nevertheless one for which there was material before the learned Chairman, and that is fatal to that aspect of the appeal.The other point is a shorter one. It deals with the application which was made, very much at the eleventh hour, in a letter dated the 16th March, which it will be recalled is the Saturday before the hearing on the Monday, for an Order that the Notice of Appearance should be struck out in whole, or that the Respondents should be debarred from defending altogether, because of a failure to comply with an Order that had undoubtedly been made on the 11th March 1991 for discovery. We have been through the Order that was made and the correspondence that preceded it and without going into all the details of the ten items that were asked for, initially by Mr Indrayen on the 18th February 1991, it is apparent to us that all ten of those items fall into one or other of two categories. One category is documents, copies of which were actually supplied, by the Respondents under cover of a letter dated 25th February 1991. The other category is documents which the Respondents said they did not have. They were not all described in exactly the same way, some were just described as "none", meaning that there were none. Others were described as "save as disclosed none" and yet others were described as "we have no knowledge of any such, if you have a copy please let me have it". But all three of those add up to the same proposition, namely, that the Respondents did not have the documents in question. The Order that was made was in fact made after those answers were given and after the Order was made an application, which was somewhat misconceived, was made by the Respondents for the Order to be varied in the light of what had already been supplied. That application on the 12th March was rejected the next day on 13th March, by the Industrial Tribunal which said, perfectly correctly:
"If you have no documents of the description specified in the order then it is sufficient for you to say, as you have done, that you have none."
That, indeed, was the situation. There had been a compliance with the request for discovery save with regard to documents which the Respondents said they had no copies of and an answer that there is no copy within the possession or control of the party against whom discovery is sought is, on the authorities, conclusive, unless it is shown to be wrong. There is, of course, no question of its being shown to be wrong in this case because this application was made, as I say, at the eleventh hour on the Saturday before the Monday, and in that context, although Mr Indrayen has submitted to us that the application was not dealt with at all or in correspondence, and that he found this very strange, if one has regard to the practicalities of the situation it seems to us that the Industrial Tribunal was in no position to do anything on that application because there was no basis upon which it could properly have debarred the Respondents from defending the case. We are not concerned of course with academic questions. It is true that this particular point is not addressed in the Industrial Tribunal's decision, but the fact of the matter is that there was only one possible answer to the application, namely that(a) it was too late and(b) it was in fact misconceived because there had been no failure to comply and for those reasons the appeal cannot succeed on that point either.That means that we must dismiss this appeal against the decision to dismiss Mr Indrayen's application which we do.MR JUSTICE KNOX: (resumed) This is an Addendum to the judgement that was delivered before the short adjournment and it deals with the amendment that we have ordered to be made by way of rectification of a clerical mistake in the Order that this Tribunal made on the 26th March 1992. The effect of the correction of that clerical error is to restore as one of the matters to be argued on this appeal the question of the refusal of a review pursuant to a request made on the 19th April 1991, by Mr Indrayen, which was in fact turned down in a letter from the Industrial Tribunal Regional Office on the 9th May 1991. The problem arises in this context. We said in our earlier decision that we have had additional evidence in the shape of a medical certificate from Mr Indrayen's medical adviser, who was indeed medical adviser in March 1991, and that in the light of that certificate we have proceeded on the footing that there was now evidence that Mr Indrayen was not fit on the 18th March 1991. That is the background to the matter.The application for review in the letter of 19th April 1991 relied for the review specifically upon this absence due to sickness point. Mr Indrayen said:
"I have clearly written that I do not wish the case to be heard in my unavoidable absence due to sickness . . . I hereby request you to put this my letter along with full file before an appropriate authority to examine and review the case and decision in details."
The decision of the Industrial Tribunal of which a review was sought was sent to the parties on the 11th April 1991. The Rule regarding reviews is Rule 10 of the Industrial Tribunals (Rules of Procedure). It sets out in sub-rule (1) the grounds upon which a Tribunal may review and they include two relevant paragraphs:
"(c)the decision was made in the absence of a party or person entitled to be heard; or (e)the interests of justice require such a review."
Rule 10(2) imposes the 14 day time limit which I have mentioned, and need not be read in detail.Rule 10(3) reads:
"(3) An application for the purposes of paragraph (1) of this Rule may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.
(4) If such an application is not refused under paragraph (3) of this Rule it shall be heard by the tribunal which decided the case or -(a)where it is not practicable for it to be heard by that tribunal, or (b)where the decision was made by a chairman acting alone under Rule 12(4),by a tribunal appointed either by the President or a Regional Chairman, and if the application is granted the tribunal shall proceed to a review of the decision and, having reviewed it, may confirm, vary or revoke that decision, and if the tribunal revokes the decision is shall order a re-hearing before either the same or a differently constituted tribunal."The actual refusal was couched in these terms:
"The Chairman to whom your letter was referred directs me to inform you that the Tribunal is Functus Officio and cannot enter into further correspondence."
That Latin tag of course means, "had fully performed its tasks" but it has been elucidated for us by comments for the benefit of this Tribunal made by the Chairman who caused that letter to be written, and that was of course the Chairman who was a member of the Tribunal that heard the application sought to be reviewed. The comments of the learned Chairman include this in paragraph 4:
"The decision in this case was sent to the applicant by first class post on 11 April 1991. As to paragraph 8 of his affidavit, it is correct he sent to the Tribunals a letter dated 19 April and received in the Tribunal on 23 April 1991. It would appear that at the time because the decision had been given on 18 March 1991 I treated the application for a review as out of time. If I had not done so I would have refused it on the ground that it no prospect of success and was not in the interests of justice."
Paragraph 8 of Mr Indrayen's affidavit does not add very much to what I have already said. It mentions the fact that he did receive the decision of the 11th April and being surprised and shocked he wrote the letter that I have read extracts from on the 19th April asking for a review.There is a slight misidentification of the paragraphs under which the application was made but nothing much turns on that. He claims that, Mrs Hollis, the Chairman in question failed to deal with the matter in the correct manner. It is clear to us that the decision of the Chairman was, indeed, as Mr Indrayen urges upon us, incorrect, in the sense that it was made on an erroneous basis, namely, that it was made out of time. It was not made out of time. The other significant factor is that the medical evidence, it will be recalled from the terms of the judgment we gave before the short adjournment, was effectively rejected by the Industrial Tribunal which said at the end of its discussion of the application for an adjournment:
"In the light of the applicant's course of conduct we are satisfied that his failure to attend has not been motivated by ill health but by other reasons."
The genuineness or otherwise of the certificate and claim of ill health by Mr Indrayen was at the heart of the question whether there should be an adjournment or a review. We are only concerned with the question of the review at this stage. But it does appear to us that Mr Indrayen is right in saying that on a review it would have been open to the reviewing body to consider the medical evidence that was proffered to it. We do not go any further than to say that the medical evidence, might have been such as to influence the decision regarding the review. It is not necessary for us to go further than that and we have only had a short, and not entirely satisfactory, certificate from the medical practitioner concerned. We said before the adjournment why we thought it not entirely satisfactory, because it does not seem to us to follow necessarily, that a certificate of unfitness for work means that there is also unfitness to attend a court or tribunal. However, subject to that point it does seem to us that there would have been a possibility of a review producing a different answer on the medical front. That seems to us to be sufficient to prevent us from taking the view that although the reason the review was refused for was an erroneous reason, that is that it was out of time, nevertheless, because the Chairman says that she would have refused the review in any event because it had no prospect of success, that that is conclusive of the matter and that the matter should not be looked at at all.It will be borne in mind that we are not ordering a re-hearing of the case. I have already read the terms of Rule 10(4) which deals with what should happen where there is a review and that in our judgment is what should now happen. The provisions of Rule 10(4) should be operated and the matter should be considered by way of review of the original decision. It would be wholly undesirable for us to say any more about the matter than that, because it is not our function to go any further than to deal with the application that is before us and we therefore do not go any further and say what views we might have with regard to the conduct of that review or, a fortiori, with regard to the result of that review. But there should, in our view, be such a review and we order accordingly.