Brown & Ors v Nathoo & Anor [1994] UKEAT 332_94_2206

EAT

Brown & Ors v Nathoo & Anor

[1994] UKEAT 332_94_2206 · 1994-06-22

JUDGE HULL QC:

This is an appeal to us against the adjournment by the Chairman of an Industrial Tribunal of an application which was made to that Tribunal by a Mrs Nathoo, who is one of the permanent officers at Watford Borough Council. That application to the Industrial Tribunal is to be found in our papers at page 11 onwards and in it Mrs Nathoo makes complaints of discrimination on the grounds of sex and race and victimisation. Those of course are matters which must be taken seriously. She not only complains against the Council but against ten named elected members: all of whom deny that they are guilty of any discrimination of the sort which is alleged, or victimisation. They have put in answers, each of them separately denying the matter.

The application to the Industrial Tribunal was in December 1993, the answers were put in in February. There was to be a hearing, a preliminary hearing of course, on the 29th March. Then on the 24 March Solicitors acting for the Applicant said that she wished the proceedings to be adjourned generally. The first Respondent, that is the Council, had consented to hold an internal investigation into the Applicant's complaints. A letter was written on behalf of the other Respondents, that is to say the Councillors, saying that they opposed it. But the Tribunal, without holding any hearing, wrote a short letter at page 7 saying:

"I have referred the application to the Chairman who has agreed that this case should be postponed until the completion of the internal investigation."

Now the question whether to adjourn a case is a matter of discretion. We have been referred to a case, of which a copy was kindly sent to us, reported in a newspaper, in which it was pointed out that Chairmen do attend to these matters without sitting with their Industrial Members. Indeed, although it was treated as a matter of practice, there are authorities showing that the Chairmen, under the old Rules, were entitled to do that and under the new Rules, the Chairman is also expressly entitled to deal with these matters. It says in Rule 13(7) of the Rules:

"A Chairman may postpone the day or time fixed for, or adjourn, any hearing, particularly where an enactment provides conciliation in relation to the case for the purpose of giving an opportunity for the case to be settled by way of conciliation and withdrawn and vary any such postponement or adjournment."

Then Rule 13(8):

"Any Act required or authorised by these Rules to be done by a Tribunal may be done by a Chairman..."

and then there are immaterial exceptions.

Therefore, it is a matter of discretion for the Chairman and this Tribunal, the Employment Appeal Tribunal, can interfere with the exercise of the Chairman's discretion only on certain very limited grounds. If it is shown that the Chairman has taken into account matters which he should not have done in law, or that he has excluded matters from his consideration which he should not have done, or if the discretion was exercised in a way which, looking at it objectively, no reasonable Chairman could have done, so that it is a perverse decision, then this Tribunal could interfere. But it seems to us that nothing has been said to show that this Chairman acted in a way which was outside his discretion. He was told, rightly or wrongly, that an internal enquiry was proposed and it would be very natural, in a case which potentially would have such horrific consequences in costs and waste of time, for the Chairman to want the case to be dealt with in an informal way if it possibly could, to save all the delay, publicity, distress, embarrassment and so on, that might well be caused by a long hearing by the Industrial Tribunal.

It is true that he could have decided to hold a hearing. But these matters are customarily dealt with in the first instance in an informal way by a Chairman, and certainly it is our experience that Chairmen very regularly act on the request of only one party, on good cause shown. If the Chairman has not held a full hearing, then as the Rules which I have referred to expressly spell out, that decision can be altered at any time, and we cannot properly interfere with a decision when as it seems to us the proper course is for these Appellants to renew their application to the Tribunal that the case should proceed. They have good cause for doing so. There are various matters which they are entitled to raise at this stage.

First of all, the Appellants say, as a matter of law, they should not be parties to this application at all. They are elected Councillors and they add, by way so to speak of commentary on that, that so far from carrying the matter any further forward, it results in great embarrassment to them in carrying out their duties as elected members of the authority. They are inhibited from voting: they are advised that they may incur penalties. They suffer no doubt social and political embarrassment from the allegations which hang in the air against them. But they say that, as a matter of law, they should not be parties to this application by Miss Nathoo at all. If that is right, they are entitled on the face of it to say so and to ask the Tribunal, instead of going into all the merits and so on, to say now that they are not proper parties to the application. They are entitled to take that as a preliminary matter and to ask the Tribunal to adjudicate on it as a preliminary matter. If they think it right to do so, they should apply to the Tribunal to do that.

Secondly they say that in any event, even if they are wrong about that, no cause of action is shown against them in the applications. Without details they are quite unable to answer, they do not know what the allegations against them are: because the applications show no grounds for complaint against them. That again is a matter which would be a proper subject of an application to the Industrial Tribunal; a request that the applications against them be struck out as showing no cause of complaint against them.

Thirdly, even if those applications are not made or not dealt with in that way then these Councillors are certainly entitled, as it seems to us, to say to the Tribunal "you made this decision without hearing us and you should now, as the Rules provide, deal with the matter afresh and change the decision which was made. The internal enquiry which was envisaged, which you were told about in March, has not in fact taken place, the matter is no further forward, although you not unreasonably thought that that might be something which should be awaited before the Tribunal proceeds with its task. In the event, the balance of convenience shows that it should not be any longer awaited: people should not be kept away from justice by political or other steps which are not under the control of the Industrial Tribunal and which may take many years to complete".

Now all those are applications which can quite properly be made to the Tribunal. This Employment Appeal Tribunal cannot usefully interfere with the decision which, so to speak, has borne fruit. That is say, whatever criticism or otherwise one can make of the Chairman's original decision (and we are not minded to criticise it) this case has, in fact, been stood out. But that is not written in stone. Like any other interlocutory order it can be altered, added to, changed.

In the circumstances we cannot allow this appeal, but we all hope that the observations which we have made will be of some assistance to the Councillors, with whom we have great sympathy. They say that they are not in any way properly involved with this and they say that they are suffering serious embarrassment. Those are not matters which the Industrial Tribunal, or any other Tribunal, can properly overlook; they are important matters and they ought to be laid before the Tribunal. The appeal is dismissed.