Towry Law Plc v Crossfield [1993] UKEAT 833_93_0511

EAT

Towry Law Plc v Crossfield

[1993] UKEAT 833_93_0511 · 1993-11-05

MR JUSTICE KNOX : This is an appeal against an interlocutory decision in the Industrial Tribunal to hear in the near future, that is to say today week, the quantification stage of an application by Mrs Crossfield the Respondent before us today, for remedies for unfair dismissal. She brought an application for unfair dismissal and on the basis of unlawful discrimination. The former succeeded and the latter failed at a hearing on four days earlier this year by a decision that was sent to the parties on 3 September 1993.

There was an appeal received by this Tribunal on 15 October 1993 (which is just within the time allowed) and the remedy hearing has been fixed for 12 November. An application was made to vacate that hearing by the employer Towry Law Plc which I will call `the Company' in which on 15 October there was a reference to an earlier letter that had been written on 20 September which had given notice that an appeal was being considered and if an appeal was lodged there would be a request for the remedy hearing to be vacated so there is no question of delay on the part of the Company in making the application that is effectively before us today.

That application for the remedy hearing to be vacated was refused in terms which can only be described as short. The letter which came from a lady writing on behalf of an Assistant Secretary of the Tribunals on 19 October said:

"The fact that a party has made an appeal to the Employment Appeal Tribunal is not, in the Chairman's view, an adequate ground for postponing a remedy hearing."

That, with all due respect, did not give very full regard to the case for there being a postponement and the Company returned to the charge and asked on 22 October for full reasons for the Chairman's decision and intimated that an appeal had been made to this Tribunal in respect of the decision which is the one we are hearing today.

There has been a response to the request for full reasons in the shape of another letter from the same lady writing for the Assistant Secretary of the Tribunals and the operative part of that letter dated 2 November 1993 reads as follows:

"As to full reasons for the refusal to postpone the remedy hearing, contained in my letter of 19 October 1993, the Chairman endeavoured to balance the convenience of an early remedy hearing, against the consequence arising from the lapse of time before an appeal would be heard by the Employment Appeal Tribunal. He considers that the balance is in favour of proceeding with the remedy hearing."

We have to say that we find that letter difficult to understand both from a grammatical and sense point of view. It seems to us that there is a fairly limited balance involved in this particular case but before we approach our decision we do wish to draw attention to the difficulties that do arise from the present practice of letters being written on oral instructions from a Chairman of Tribunals. The Chairman no doubt exercises discretion vested in him on legal principles and reports the process to the person who writes the letter (or there may be intermediate links) but the end result in this - and this is not the only case in my own limited experience - is very often I fear not to do justice to what the Chairman's mental processes have been and this is a fairly good example of the reasons for the decision really being unsatisfactory as not representing what, we feel, the Chairman must have in fact done in the way of reasoning on the way to arriving at the conclusion in the exercise of his discretion that he did reach.

However that may be we have to deal with the appeal before us. The law on the subject is we think not in dispute. There has to be shown to us that there has been an error of law for us to exercise our jurisdiction and the two ways in which that can usually be shown are either for it to be established that the decision is a perverse decision that no Tribunal properly instructed could properly reach, or that there has been taken into account some factor that should not have been taken into account or some factor left out of account that should have been taken into account.

We, of course, are handicapped in assessing this process by the way in which the reasoning for the Chairman's decision is reported to the parties and to us but it does seem that on the basis of what is said on 2 November there has been omitted the main point that is relied upon and has throughout been relied upon on behalf of the Company, which is the fairly obvious one that if there is a hearing on quantum and the appeal at the end of the day is allowed, the time and money that time represents spent on the quantum hearing will have been wasted.

Mrs Crossfield pointed out to us that legal costs do not figure as largely in Industrial Tribunal proceedings as they do in ordinary legal proceedings and that save in exceptional circumstances that are specifically dealt with by the rules, orders for costs are not made in an Industrial Tribunal. She also submitted that the Company could in fact appear in person if so minded and so it could through one of its officers. Nevertheless we are not satisfied that it is right for a Tribunal to disregard costs on either side in assessing the pros and cons of granting adjournments. It seems to us that that would be an unrealistic approach because the facts of life are that litigation, whether before an Industrial Tribunal or in this Tribunal does cost money and one has to have regard to that fact.

There is therefore a significant factor which does not get reflected, whether because the Chairman did not take it into account or because the report of his reasons did not report it, we do not know, but it does not appear in the letter of 2 November and that means that we have to exercise our discretion under paragraph 21 of Schedule 11 of the Employment Protection (Consolidation) Act 1978. Doing that, it seems to us that there is really one significant factor on either side of the scale. I have already described the significant factor on the Company's side, that is to say in favour of postponing the remedies hearing, the risk that there will be a waste of costs if the appeal succeeds. We do not think there is anything like the weight that there very often would be in having the advantage of a remedies hearing close on the liability hearing where there is reason to expect the Tribunal would want to rely on its recollection of what happened on liability in deciding questions of quantum and remedy. We say this because in this particular case although both compensation and re-instatement were sought by Mrs Crossfield, it is apparent to us that the chances of re-instatement as a matter of practical politics must be so small as to be negligible for practical purposes at this stage, and that the live issue is the question of compensation. But on that it is of course fairly clear that the compensation cannot be paid until the appeal has been disposed of and we record that an undertaking was offered on the Company's behalf to make good to Mrs Crossfield any loss of interest that there might be involved through there not being a decision in her favour in a quantified sum until the end of the day and the Company is a substantial company so the undertaking is a significant undertaking and we do not see that there is any significant weight to be placed on that aspect of the matter from Mrs Crossfield's point of view. So far as capital is concerned of course it would be postponed until the hearing of the appeal was disposed of.

That leaves the question of delay at the other end of the scale and this is the point that we feel does go in the scales on Mrs Crossfield's side because if the appeal fails there will, if there has been no liabilities hearing, then have to be a reference to the Industrial Tribunal for the quantification process to go forward. When one adds that aspect and balances it against the item in the scales on the other side, and one takes into account the general practice that a remedy hearing should follow reasonably swiftly upon a liabilities hearing, regardless of whether there is actually going to have to be a recollection of the evidence, it seems to us that on balance the scales tip in favour of Mrs Crossfield and that means that we do not allow this appeal.

Before parting with this case we wish to record that the real substance of the trouble to which the parties have been put is the very distressing delay that exists in this Tribunal in dealing with appeals from Industrial Tribunals. The present position is that they take 2 years or more and the problems that we have had to grapple with this morning are immensely exacerbated by the existence of that delay. It is not for us of course to suggest remedies for that state of affairs but because that state of affairs obtrudes significantly on litigant's rights we feel it right to record yet another example of the damage that it does.