North Yorkshire Police & Ors v Ashurst & Ors [1995] UKEAT 1280_95_2012

EAT
North Yorkshire Police & Ors v Ashurst & Ors
[1995] UKEAT 1280_95_2012 · 1995-12-20
For Detective Chief Inspector Hallinan MR J MILFORD Q.C.

(3rd Appellant) Geoffrey Forester & Co

1-3 Wylam Street

Jarrow

Tyne & Wear NE32 3HU

For Miss E Ashurst (1st Respondent) MRS P HENDY

(of Counsel)

Eversheds

Cloth Hall Court

Infirmary Street

Leeds LS1 2JB

For Detective Constable P Raynor and MR S ROBERTS

Dectective Chief Inspector Barlow (of Counsel)

(2nd and 3rd Respondents) Whittles

Suite 9c

Joseph's Well

Park Lane

Leeds LS3 1AB

MR JUSTICE MUMMERY (PRESIDENT):

General

Firm control over the listing of cases for hearing is essential for the fair and efficient disposal of litigation in every court and tribunal. It is only to be expected that litigants and their advisers are more concerned with their own cases than those of others. Each litigant wants his own case to be heard when it suits him and the convenience of his advisers. Industrial Tribunals (and this Tribunal) attempt to fix cases for hearing on a date convenient for both sides and well enough in advance to allow the case to be properly prepared. But there are inevitable tensions in the system. On the one hand, it is in the interests of litigants, as a body, that cases are heard expeditiously, that valuable tribunal time should not be wasted by adjournments sought so late that it is too short notice to slot in another case. On the other hand, it is in the interests of individual litigants that the requirements of listing should not detract from their right to a full, fair hearing. A litigant wants his case adjourned if he cannot attend the hearing or if crucial witnesses are unable to attend or if his legal representative is unavailable.Industrial Tribunals have a wide discretion to grant or refuse an adjournment. They are and must remain in control of their own lists. If an adjournment is sought, an application should be made to the Chairman as soon as possible. If it is refused, the application can be renewed to the full tribunal on the date fixed for the hearing. It is rarely justified for a party denied an adjournment to appeal to this Tribunal. The Appeal Tribunal will only disturb the exercise of the discretion if it is demonstrated by argument and, where appropriate, relevant evidence, that the discretion has been exercised contrary to legal principle, or without proper consideration of all the relevant circumstances or in a manner in which no reasonable tribunal would exercise it. See: Bastick v James [1979] ICR 778 at 782. In most cases it will be difficult for the Appellant to demonstrate such an error of law by the Tribunal.These general remarks are prompted not only by this case, an appeal against the Chairman's refusal to postpone a hearing, but also by a growing number of appeals, almost all of them with no real prospect of success, against refusals by Chairmen to postpone the hearing of a case listed to start on a fixed date.

The Appeal

This is an appeal against a decision of the Regional Chairman at Leeds at a hearing on 23rd November 1995. Reasons for the decision were notified by letter of 28th November 1995. The Regional Chairman refused to postpone the hearing before the Industrial Tribunal listed for five days from 29th January 1996 to 2nd February 1996. The application was made on behalf of four respondents - the North Yorkshire Police, Detective Chief Inspector Hallinan, Detective Constable Raynor and Detective Chief Inspector Barlow. It was also supported by the Chief Constable for North Yorkshire who was joined as a party to the application solely for the purposes of pursuing the application to postpone the proceedings pending the outcome of an internal disciplinary proceedings against Detective Chief Inspector Hallinan. The Chief Constable is the "Chief Officer concerned" in those proceedings. The application was successfully opposed by the complainant, Miss Ashurst.The unsuccessful Appellants all appealed. The appeal was heard as a matter of urgency on 20th December 1995. After hearing argument from legal representatives for the parties, we unanimously, though reluctantly, decided to allow the appeal for reasons to be given later.

The Background

The background for these appeals may be summarised as follows:(1) Miss Ashurst joined the Police Force on 13th February 1989 and has served as a Detective Constable with the North Yorkshire Police based in Harrogate since 1991.(2) On 6th June 1995 she presented an originating application to the Industrial Tribunal complaining of acts of continuing sex discrimination, harassment and victimisation. She named the three individual respondents who all worked at the Harrogate Police Station. Detective Chief Inspector Hallinan was appointed to Harrogate in 1991. He has completed nearly 30 years service. Miss Ashurst alleged that she had provided detailed statements to the Police on 10th November 1994, 21st December 1994 and 24th January 1995. She alleged that the North Yorkshire Police condoned discriminatory conduct by the individual policemen, was vicariously liable for their acts and had breached internal Equal Opportunity and Sexual Harassment Policies.(3) On 14th July 1995 the North Yorkshire Police served a Notice of Appearance. Discrimination and condonement of harassment was denied. Reference was made to disciplinary charges laid against Detective Chief Inspector Hallinan. Certain allegations made by Miss Ashurst formed part of the substance of the charges against him. The disciplinary enquiries were not complete. Complaints against other individuals were under investigation, but those investigations were not completed. (A pre-trial review will take place on 5th February 1996. The hearing will start on 28th May 1996 and will be completed in June 1996).(4) In his Notice of Appearance, served on 18th July 1995, Detective Chief Inspector Hallinan stated that he had been suspended from duty by the Chief Constable of North Yorkshire on 23rd December 1994 and remained suspended. He denied the allegations. He contended that the complaints were, in any case, out of time.(5) The two other police officers also served Notices of Appearance in July 1995 denying the allegations of discrimination.(6) There are other Industrial Tribunal proceedings for sex discrimination against the North Yorkshire Police and Detective Chief Inspector Hallinan. They have been brought by Miss A Rose, formerly a member of the North Yorkshire Police Force. Her originating application was presented to the Industrial Tribunal in March 1995, after Miss Rose had left the police force. The conduct complained of was alleged to have occurred in and up to the end of 1994. Miss Rose's complaints also form part of the charges against Detective Chief Inspector Hallinan in the internal disciplinary proceedings against him. He faces a total of eight charges which, if proved, may lead to his dismissal from the force. The North Yorkshire Police applied for those Industrial Tribunal proceedings, due to be heard over four days starting on 29th January 1996, to be adjourned pending completion of the internal disciplinary proceedings. On 19th September 1995 the Industrial Tribunal informed the parties that the Chairman refused the application for adjournment. That decision was appealed to this Tribunal and, on the hearing of 14th November 1995, the appeal was allowed. At that hearing there was separate representation of the North Yorkshire Police and the Chief Constable of North Yorkshire. There was also an affidavit sworn by Mr John Gifford, Assistant Chief Constable of the North Yorkshire Force.

The Judgment in the Rose Case

The judgment of the Appeal Tribunal in the Rose case (The Honourable Mr Justice Buxton presiding) gave the following reasons for allowing the appeal in Miss Rose's case. They are relevant to the present appeal and are briefly these:(1) The disciplinary proceedings against Detective Chief Inspector Hallinan were brought under the statutory code governing conduct and discipline in the Police force, the Police (Discipline) Regulations 1985 . The distinctive features of those regulations are that the criminal standard of proof applies and that they are conducted by the Chief Constable under a different statutory function than that of the Police Authority. The supervision of those proceedings has been delegated by the Chief Constable to the Assistant Chief Constable, Mr Gifford. They will in fact be heard by the Chief Constable of a different police force. The employing Police Authority has no role to play in disciplinary proceedings.(2) If the Industrial Tribunal proceedings against the employer Police Authority (not the Chief Constable) are heard before the disciplinary proceedings are heard, the Police Authority will not know the position in the disciplinary proceedings. Detective Chief Inspector Hallinan will be entitled to protect his position in the disciplinary proceedings. This will put the Police Authority in to an impossible situation, because it will not be entitled to require Detective Chief Inspector Hallinan to give evidence for it in the Industrial Tribunal proceedings ahead of the disciplinary proceedings. There would therefore be difficulty in conducting the Industrial Tribunal proceedings before the disciplinary proceedings. Further, the disciplinary proceedings could be handicapped if Detective Chief Inspector Hallinan could claim that he had been unfairly treated in the Industrial Tribunal proceedings. On the other hand, no specific prejudice would be suffered by Miss Rose as a result of the adjournment.(3) The Appeal Tribunal were assured that the disciplinary proceedings would be over in a comparatively short time. The hearing was expected to take place in April or May 1996.(4) The Industrial Tribunal proceedings and the disciplinary proceedings were closely related. Miss Rose was involved in both sets of proceedings as a witness.(5) There was a risk, not fully appreciated by the Chairman in that case or not brought to his attention, that the proceedings before the Industrial Tribunal could not be conducted fairly at all if they took place before the disciplinary proceedings.In order to protect Miss Rose against prejudice arising from further delay, the Appeal Tribunal gave her liberty to re-apply to the Industrial Tribunal, should it become apparent to her or to those advising her that the delay occasioned by the allowing of the appeal exceeded the period envisaged by the Appeal Tribunal.For all those reasons the Appeal Tribunal regarded the refusal of an adjournment as erroneous in law, because the refusal had not taken account of a relevant factor, namely the difficulty of the Police Authority conducting a defence to the Industrial Tribunal claim ahead of the disciplinary proceedings. The decision refusing an adjournment had also been influenced by an irrelevant factor, namely that the internal hearing would not be bound by the facts found in prior proceedings before the Industrial Tribunal.

Decision of the Regional Chairman in this case

The Regional Chairman gave the following reasons for refusing a postponement of the hearing of this case in the Industrial Tribunal.(1) He had a discretion under Regulation 13(7) of the 1993 Rules of Procedure. The discretion to grant or refuse an adjournment was to be exercised by taking into account all the relevant factors.(2) It was a year since Miss Ashurst had given her statement about her allegations. Miss Ashurst, unlike Miss Rose, was still a serving officer. The prospect of continuing delay was more upsetting and prejudicial to her than it was for Miss Rose, who left the police force before she started the proceedings. (The Regional Chairman was supplied with a full note of the judgment in Rose ).(3) The issues in the disciplinary proceedings and in the Industrial Tribunal were not the same. The burden of proof was different: it was the criminal burden in the disciplinary proceedings.(4) The Chief Constable's concern with the reputation of the force did not "necessarily outweigh the interests of the complainant."(5) The disciplinary proceedings would not be unduly prejudiced by any previous finding by the Industrial Tribunal.(6) It was appreciated that the Police Authority might be handicapped in presenting evidence to the Industrial Tribunal if the pending disciplinary proceedings prevented them from obtaining information required from Detective Chief Inspector Hallinan. Detective Chief Inspector Hallinan was not, however, the only possible witness for the Police Authority. He was also a Respondent in his own right. The nature of the case was that the Police Authority was in the position of having to accept liability for him.(7) It would be another six months before the disciplinary proceedings were heard. Further internal appeals were possible.(8) Miss Ashurst would be a witness at the disciplinary proceedings and would be subject to cross-examination without the protection afforded to her by a representative at the Industrial Tribunal.(9) The interests of the Chief Constable, who was a non-party, were unusual.
"The interests of such an intervenor may well be linked more to limiting damage which any publicity of proceedings before the Tribunal may have, than concern for ensuring that a proper judicial balance is maintained for someone who makes seriously and inherently distressing allegations which, if proved, might strike at the heart of her employment relationship, and the employers who have the responsibility of ensuring satisfactory compliance with the statutory law regarding sex discrimination."

The Appeal - Miss Ashurst's Submissions

We started the hearing with a strong disposition to dismiss the appeal. The following considerations favoured that course:-(1) As the Chairman himself commented in paragraph 12 of his letter, each case has to be considered individually. The Chairman observed that he was not bound to follow the same course as the Employment Appeal Tribunal in Miss Rose's case, if there was a distinguishing feature: He thought that more prejudice would be suffered by a serving officer, such as Miss Ashurst, as a result of the delay than would be suffered by Miss Rose.(2) The Chairman also recognised correctly that it is not permissible for the Appeal Tribunal to disturb his decision merely because the Appeal Tribunal would have reached a different decision in the exercise of the discretion.(3) In the exercise of his discretion the Chairman took into account the following factors - the prejudice to Miss Ashurst caused by the delay; the fact that she was a serving officer; the decision of the Appeal Tribunal in the Rose case; the difficulties of the Police Authority if the Industrial Tribunal hearing preceded the disciplinary proceedings; the different burden of proof in the two sets of proceedings.There was much to be said for the argument that the Chairman's decision was not perverse or contrary to legal principle or left relevant facts out of account or took irrelevant facts into account.

Conclusion

We have reached the conclusion, however, that this is one of those exceptional cases in which the Appeal Tribunal is entitled to disturb the exercise of a Chairman's discretion on the grounds that there was an error of law. The error was failing to take proper account of an important relevant fact, namely the reasons for and effect of the decision of the Appeal Tribunal in the Rose case. On a proper analysis, it is indistinguishable from the present case.In our judgment, the hearing in the Industrial Tribunal ought to be postponed until after the hearing of the internal disciplinary proceedings for the following reasons and on the following terms.(1) Consistency of treatment and approach, which is relevant to both the concept of justice and to the proper exercise of a discretion, indicates that the Appeal Tribunal should do the same in this case as was done in the Rose case, which has not been appealed to a higher court, unless a relevant distinction can be found between the two cases.(2) The fact that Miss Ashurst is a serving officer and that Miss Rose is no longer a serving officer is not a relevant ground of distinction between the decision of the Appeal Tribunal in the Rose case and this case.The crucial facts are that Detective Chief Inspector Hallinan has been suspended pending the hearing of the charges against him. The complaints against him by both Miss Rose and Miss Ashurst are similar. They have been investigated over a period and are subject to similar charges in the same internal proceedings. There is no evidence from Miss Ashurst, any more than there was from Miss Rose, of any specific prejudice likely be suffered by reason of a postponement.(3) On the other hand, there is evidence of a real risk, relied on by the Appeal Tribunal in the Rose case, that if there is no postponement, there may be prejudice to the Industrial Tribunal proceedings and to the disciplinary proceedings. The prejudice could take a number of forms. There could be unfairness to Detective Chief Inspector Hallinan if the Industrial Tribunal proceedings are heard first. He would have to decide whether or not to participate in them. If he decided to participate in them he might prejudice his rights in the disciplinary proceedings. He might be forced to make premature disclosure in the Industrial Tribunal proceedings of his defence in the disciplinary proceedings, to his disadvantage, but to the possible advantage of Miss Ashurst. The fair hearing of the Industrial Tribunal proceedings may also be prejudiced if, as a result of Detective Chief Inspector Hallinan relying on his rights in the disciplinary proceedings, disclosure is restricted. This will be potentially unfair to both Detective Chief Inspector Hallinan and to the Police Authority who will be placed in a difficult, if not impossible, position in having to resist the claim based on vicarious liability without having the evidence of Detective Chief Inspector Hallinan, a key witness.(4) If the prior hearing of the Industrial Tribunal proceedings puts pressure on Detective Chief Inspector Hallinan to relinquish his rights in the disciplinary proceedings, there may be prejudice to the public interest in the effective conduct of the disciplinary proceedings. The Chief Constable has initiated those proceedings in pursuit of the public interest in effective police discipline. There is a risk that Detective Chief Inspector Hallinan may succeed in challenging those proceedings, and may even prevent them from continuing, if he can demonstrate that the prior hearing of the Industrial Tribunal proceedings has deprived him of the protection and benefit of the procedures governed by the Police Act 1964 , the Police and Criminal Evidence Act 1984 and the Police (Discipline) Regulations 1985 .In brief, we are of the view that it was not sufficiently brought home to the Regional Chairman or was not fully appreciated by him that there is a real public interest, identified by the Chief Constable in his evidence and arguments, in his seeking to promote the interests of justice in the disciplinary proceedings. It was not simply a case of him seeking to protect the reputation of the police force. The fundamental point is that there is a public interest in the fair resolution of the issues both in the Industrial Tribunal proceedings and in the disciplinary proceedings. A course should be adopted which ensures fairness in both. If the disciplinary proceedings are held first, and we are now assured that they will be disposed of by the end of June 1996 with no internal appeals, it should be possible to obtain fairness in both sets of proceedings. If the Industrial Tribunal proceedings are heard first, there is a risk that they will not be fairly heard, from the point of view of the Police Authority and Detective Chief Inspector Hallinan, and that the disciplinary proceedings would not be fairly disposed of, from the point of view of the Chief Constable, under the disciplinary code. Those risks outweigh the risk of prejudicial additional delay to Miss Ashurst's claim or to her well being.For those reasons we conclude that there was an error of law in the decision of the Regional Chairman in refusing to follow the reasoning of the Appeal Tribunal in the Rose case. That reasoning is sound in its identification of the risks of prejudice if the Industrial Tribunal proceedings are not postponed. The hearing will be postponed to the first available date after 1st July 1996, subject to the same liberty to apply as was granted by this Tribunal to Miss Rose.