Fox v Father Hudson's Society [1995] UKEAT 418_94_1306

EAT

Fox v Father Hudson's Society

[1995] UKEAT 418_94_1306 · 1995-06-13

JUDGE HULL QC:

This is an appeal to us by Mr Fox. He was employed by a charity called Father Hudson's Society in Birmingham. They are a registered charity and among other charitable activities they maintain a retirement home with 28 beds for the elderly. That was under the charge of Mr Fox, at St. Vincents, 102 Mosley Road in Birmingham and his employment began a long time ago. There are different dates given. He, I think, said 1969. The employers, the charity, say 1973.

We know of no untoward events which occurred until 20 years later, in February 1993 when a question arose (and we are not going to go into this at all) about £100 belonging to one of the residents who were in Mr Fox's charge. £100 went missing. The circumstances were discovered or, at any rate, investigated two months later by the auditors, in the course of an audit.

It was suggested that Mr Fox was to blame for this, and there was a disciplinary hearing on 18 May 1993. On 27 May 1993 his employers found that he had been guilty of misconduct and he was dismissed. His employment ended on 7 July 1993. He exercised his right to an internal appeal and on 3 August 1993 he was heard on the internal appeal and his dismissal stood.

He had, at some stage (I am not quite clear when) consulted his union representative and he presented his IT1, his application to an Industrial Tribunal, complaining that he had been unfairly dismissed; he sought reinstatement.

The charity put in an answer, form IT3, on 23 November and there was a hearing date arranged for 3 February 1994. There were, we were told, negotiations between the parties, which resulted in an offer being made by the employers. We have no idea what it was and whether it should or should not have been accepted, but apparently it was the view of the representative of Mr Fox that it should be accepted and he, apparently on the evening before the hearing told Mr Fox so and apparently declined to take any further part in the proceedings. .

On the day of the hearing, the Industrial Tribunal duly sat under the chairmanship of Mr Williams at Birmingham, and Mr Fox attended. For the charity there were Counsel, Mr Pepperall who has attended before us today; Solicitors; three Directors of the charity; and an Accountant, who no doubt would give evidence about the audit.

Apparently, what happened was that Mr Fox explained that he had expected to attend the Tribunal with his representative and that the representative was not there. It was explained to the Tribunal how recently this situation had come about and how it was that the representative was not there. The Tribunal said that they paid little attention to the circumstances, but they did have regard to various matters. What Mr Fox asked the Tribunal to do was to adjourn the matter, so that he could obtain representation.

The dismissal being admitted, it would of course be for the charity to lead their evidence first, to show what the reason for the dismissal was; and then, of course, they would go on without break to go into the circumstances and show, if they could, that they had acted reasonably in treating that as a ground of dismissal. That was all explained, but Mr Fox said that he wanted the adjournment. He was not prepared to take part in a hearing.

So the Tribunal's first duty was to consider whether there should be an adjournment. It was a matter of discretion for the Tribunal, for the Chairman and his two members. On the one hand, of course, the Applicant was in a serious and disagreeable position, looking at it simply from his point of view. He was bereft of the advocate that he had hoped would represent him. It was quite different from the situation where a litigant in person has prepared his case throughout on the basis that he will have to be his own advocate. Small wonder if Mr Fox felt gravely disadvantaged.

That was a matter for the Tribunal's consideration. They also had to consider that, it being their duty to enquire into complaints made to them, they would be under a duty of elementary justice to safeguard Mr Fox's interests so far as they could, to make sure that he was told that he would have an opportunity to cross-examine witnesses if he wanted to; that he would have an opportunity to give evidence himself; call witnesses himself; to address the Tribunal; to put before the Tribunal documents. All those are elementary points and one is quite sure the Tribunal would have attended to those matters to the best of their ability.

But there is another and very important matter about which, it seems, Mr Fox has little to say. The charity, whose funds in the nature of things are limited and should be spent on matters other than litigation, had gone to great expense and trouble to prepare for the case and to have Solicitors and Counsel there would be neither cheap nor convenient.

It must have involved a great deal of work, both for the professional representatives and, of course, for the accountant who had to give advice and the directors who had to give instructions. All those gentlemen were there waiting to give evidence. It is elementary that justice delayed is justice denied. It is also elementary that if one party is ready to go ahead and wishes to go ahead, that is a very weighty consideration, which should always be considered by any Tribunal.

It is a balancing exercise which the Tribunal has to carry out. They cannot give any compensation to the other party if they adjourn at the request of one side or the other. It would mean that the charity would have to bear itself all its costs of the adjournment and it is not only money, of course, it is management time and effort which should, again, be spent on the charitable objects of the society and preferably not on Tribunal hearings. All those are considerations and there may well be other considerations.

So the Tribunal, having considered the matter, said that they did not think that it was right to adjourn the hearing. As I say, that was in their discretion and Mr Bromley, who appears as representative today for Mr Fox, has referred us to the authorities and one in particular, the case of Bastick , which shows what we clearly understand to be the position -and we certainly follow that case - that when a discretion like this is exercised, we can only interfere if it is wrong in law, that is to say if the Tribunal has left out some matter which they plainly should have included, or has considered some matter which is wholly irrelevant and prejudicial, which they should not have considered, or if the decision itself is so irrational that one says to oneself "This must be wrong. They must have misdirected themselves in law in some way or taken into consideration something which they should not".

So we have to look at it in that way, and see whether we can fault the exercise of discretion in that sense. It does not mean, of course, that we would have reached the same decision ourselves. We are quite incompetent to say that, because we have not seen and heard what was said on the day of the hearing. But we do have to say, "Is there, in our view, any error of law here, any unfairness, looked at in that way?".

The appeal to us is only against that refusal to adjourn. The Tribunal, having heard all that was said to them, said they would not adjourn. They asked Mr Fox to present his case. And he declined to do so. He said he could not or would not in the absence of his representative; in other words, he elected, on the basis that his application had been dismissed, to do nothing in pursuit of his application.

So they decided not to proceed with it in the circumstances, but simply to dismiss it. They say at paragraph 1:

"The unanimous decision of the Tribunal is that application be dismissed in view of the applicant's refusal to present his case."

When the matter was appealed to this Employment Appeal Tribunal, Mr Fox was given leave to proceed and the comments of the Chairman were asked for. The Chairman, giving his account of course on behalf of his members, as well as himself, replied as follows:

"1 The respondents state and it was not disputed by the applicant that the applicant had received an offer and the representative refused to attend because the applicant refused the offer. This did not weigh heavily with the Tribunal."

Then they say too:

"2 The respondents are a charity and had brought a large number of professional witnesses and an adjournment would have caused very considerable inconvenience to them and much expense.

3. The issue to be tried was simple and the applicant could well have presented this himself - this was explained to him and he was told the Tribunal would have assisted in exposing the issues.

4. The applicant was told clearly that a failure to proceed would result in dismissal of his application. This was repeated to him when he said he would not proceed.

5. The applicant was in the opinion of the Tribunal well able to proceed without his representative.

6. In connection with 2 above the Tribunal decided the extra expense could not be adequately dealt with by costs orders."

So that is what they said. On the face of it, those were all matters which it was proper for them to take into account, except possibly the first matter which was laid before them by the parties, by consent, and which they rightly said they would attach little importance to because, of course, they did not know the size of the offer and merits of the case at all; so they were right to pay little attention to that. But the other matters they were very much entitled to consider and so they reached their decision.

We cannot find any error of principle, any fault of law in the exercise of this discretion and the mere fact that we might, or might not, have decided it in the same sense ourselves, is not the point. The mere fact that we feel, as we most certainly do, sympathy with Mr Fox in his predicament, does not make any difference. We have no doubt that the Tribunal itself felt sympathy with him in the predicament he found himself, but they had to weigh that against other considerations and, in particular, the interests of the opposite party and the fact that, as they saw it, they could conduct the hearing fairly, even if Mr Fox was without assistance and found difficulty in putting matters forward himself.

Then, Mr Fox having said he was not prepared to proceed, we come to a matter which is not the subject of appeal. The Tribunal did not say to the Respondents, "Well the burden is on you and we will hear you, but if Mr Fox insists on playing no part, it will necessarily be shortly". They might have heard a witness, one witness perhaps for ten minutes and said "Well it is clear from what we have heard that, on the face of it, the employers had reasonable grounds and acted reasonably and that will be the end of it". They simply said "We are not going to hear the application, we dismiss it because Mr Fox will not proceed". They could perhaps simply have looked at the documents and said "Well Mr Fox has nothing to say about this and we will decide it simply looking at the documents". They did not do any of those things. They said, "We are not going to proceed because Mr Fox does not wish to

proceed".

They are, by the rules, required to make such enquiries as they consider necessary, but it appears to us that although this was not a matter which fell within Rule 9, that is to say a non-attendance by either the applicant or his representatives, nonetheless they had a discretion not to proceed. It would be a very formal and, in a sense, a quite unnecessary procedure if they did hear the Respondents' case and Mr Fox wished to play no part in it. They decided not to go in for that, perhaps pointless, way of doing it. As we say, there is no appeal against that. They simply said "Since you are not going on, we are not going on and we are not going to hear this". Again, it seems to us that that was a matter of discretion for them.

It may well be (if we may respectfully say so) that the division of this Employment Appeal Tribunal, presided over, I think, by Mrs Justice Smith, who allowed the matter to proceed, were right when they said that most Tribunals would, in the circumstances, have heard the Respondents' case; but however right that may be, there is plenty of material here, as shown by the Chairman's letter to us, to justify the Tribunal in deciding not to take that course and to say "Well unless Mr Fox wants to go on, we don't wish to hear any more. We are going to dismiss the application". In our view, they were entitled to do that.

So having heard all that has been said, and being grateful to Mr Bromley for putting the matter to us, nonetheless it seems to us that this is not an appeal which we can allow.

There is no point of law here. The discretion which is criticised is one which belonged to the Industrial Tribunal and not to us, and we can find no error of law in the way it was exercised. The duty of doing justice to the parties was one which lay upon the Industrial Tribunal.

Our duty is to decide whether the Tribunal made any error of law in going about their task. We cannot find that they did, and so in the circumstances we must dismiss the appeal.