Yonex UK Ltd v Pigott [1995] UKEAT 577_95_1306

EAT

Yonex UK Ltd v Pigott

[1995] UKEAT 577_95_1306 · 1995-06-13

JUDGE HULL QC:

This is an appeal to us from a decision of the Industrial Tribunal Chairman. The case is an application by Mr Pigott against Yonex UK Limited, who are the Appellants here. He complains of unfair dismissal. His employment ended on 8 August 1994 and on 14 September he made his complaint to the Industrial Tribunal saying that he had been unfairly dismissed and he wanted reinstatement and compensation.

On 2 September 1994 the employers put in their IT3, their Notice of Appearance, saying that he had been guilty of gross misconduct. The case was that he had said "I will not carry out certain of my duties unless I receive more than the very niggardly pay rise which I have been offered", 2% or something of that sort. He said he should receive more, according to the employers, and that he was not going to do all his duties unless he did.

The manager in charge, a Mr Lamb, is said by the employers to have given him a number of opportunities to agree that he would continue to work in accordance with his contract and eventually Mr Lamb saw Mr Pigott in his office on Monday, 11 July; Mr Toby Davis, a sales manager, was invited to join the meeting. Again, according to this Notice of Appearance, the Applicant expressed no dissatisfaction with this.

"17. .... In the presence of Toby Davis, Mr Lamb: (i) advised the Applicant that if he would not change his mind he would be dismissed;

(ii) asked the Applicant if he had changed his mind. The Applicant confirmed that he had not [the Fifth Refusal].

(iii) read to the Applicant a letter dated 11th July setting out the Respondent's [employer's] understanding of the situation. The Applicant confirmed that such letter reflected the situation accurately. The letter was given by the Respondent to the Applicant and he was asked to leave immediately."

And so he was dismissed and there was a letter dated 11 July which is at page 44 of our bundle and at page 45 of that letter Mr Lamb says:

"I will not require you to work out your notice and you will be paid at the newly announced rate of salary up to and including 8 August i.e. 28 days notice."

Then there was another matter which was dealt with. Despite the contents of that letter a preliminary point was taken by the employers on this complaint, that in fact Mr Pigott had been employed for less than two years. His employment had begun on 13 July 1992 and the employers sought to say that, in spite of what is written in that letter, it ended summarily on 11 July 1994 when this meeting took place. That was apparently persisted in until two days before the date fixed for the hearing of that preliminary point when that contention was simply abandoned and so that date had to be vacated. That was in March of this year.

Then we come to the matters with which we are more closely concerned. On 13 March 1995 the Tribunal sent the form IT4 fixing the date on which the application would be heard as 15 June. It is in the usual form. It enjoins the parties to bring oral evidence if they can, and was sent on that date to each party. It reached those advising Mr Pigott, Jeffrey Gordon, Solicitors, but apparently not the other Solicitor dealing with the matter, a Mr McRoberts with the employer's solicitors, Cumberland Ellis Peirs. The circumstances have been set out, at considerable length, by Mr McRoberts in an affidavit which he has sworn and which we have all read.

Mr McRoberts only found out about the hearing date two months later, on 15 May of this year, when he phoned the Industrial Tribunal to ask for news of the case, thinking that rather a long time had elapsed and that the Tribunal might, at any rate, be thinking of fixing a date. And he was told on the telephone that in fact it was to be heard on 15 June and that notice to that effect had been sent. Mr McRoberts, as I say, says that he did not receive it.

It is suggested, on Mr McRoberts' behalf, that what has been said amounts to an averment by the Chairman that in fact Mr McRoberts is not telling the truth; and that a similar suggestion has been made by the Applicant. Our attention was particularly invited to what is said by the Chairman - a letter which was written on 1 June to the Solicitors which said:

"2. .... there was no reason to believe that you did not receive the notice of hearing issued on 13 March 1995 and the reasons are set out in my letter dated 18 May 1995."

We do not think that untruthfulness was being suggested. There is no reason whatever to doubt Mr McRoberts' word on this. On the other hand, looking at it from both points of view, one should observe that this notice was sent; that the Tribunal has no doubt that it was sent; and therefore that the most likely possibilities are as follows. Either it was lost in the post, which is always a possibility, or it arrived at the Solicitor's firm and was mislaid in some way. It may have been put on the wrong file; it may have accidentally been thrown away; one knows the enormous amount of paper which is to be found in the average solicitors' office nowadays.

So there is no suggestion, and can be no suggestion, against Mr McRoberts' integrity but the fact is that a mishap occurred and that it did not reach Mr McRoberts. Whose fault that may be, we are not concerned to enquire into. Under rule 5 of the Industrial Tribunal Rules, of course, 14 days notice of hearing is required, in the absence of agreement between the parties and the Tribunal.

On this occasion, the Tribunal, having heard that Mr McRoberts had not received the Notice of Hearing, duly sent a copy and there is no doubt therefore that the employers have had a month's notice of the hearing date. But the mishap apparently had this effect. We do not know how long it had been arranged, whether it had been arranged for three months or less than three months or more than three months, but in fact Mr Lamb had arranged for a holiday. He did not tell the Tribunal that it was a holiday, but he said he had made arrangements to be abroad and it has duly emerged that it was a holiday and he was going to be on holiday, apparently, on 15 June.

So those matters were laid before the Chairman, but the Chairman said that he was going to refuse an adjournment. The letter is at page 20 of our bundle. On 18 May 1995 the Industrial Tribunals wrote to Cumberland Ellis Peirs, for the employers:

"Your letter of 15 May 1995 has been referred to a Chairman of the Tribunals who has refused to grant your request for a postponement of the hearing, listed to take place on 15 June 1995.

The Notice of Hearing was sent to both parties on 13 March 1995. Dismissal was on 11 July 1994. It is not in the interests of justice for this case to be delayed any further.

The hearing therefore stands as arranged."

That was the decision of the Chairman. It is a matter of discretion for the Tribunal to say whether, if some mishap has occurred, or some other cause for an adjournment is shown, they should grant an adjournment. It is a matter of discretion.

We will not lightly interfere with the exercise of discretion by an Industrial Tribunal. It is their discretion to exercise and not ours. We will only interfere if we can say with confidence either that the Tribunal has neglected matters which they should have taken into consideration, or has considered matters which should not have been taken into consideration - irrelevant matters - or if the decision is, as it has been described here, Wednesbury unreasonable, that is lawyer's shorthand for a perverse decision; so obviously unreasonable that one has to say there must be an error of law somewhere.

So we have to look at the decision and say whether it is so. The submissions made here by Miss Andrews have been explored before us and she says, among other things, that there is an allegation of untruthfulness here against Mr McRoberts and that is the basis on which the decision was reached. We do not think that that is a just comment. "We had no reason to suppose", says the Chairman "that it was not received by your firm". It is a possibility (as I say) that the letter was lost in the post. It is even a possibility that the Tribunal itself was mistaken. Perhaps more likely, having been delivered, it was in some way mislaid. Those are all possibilities and we do not think it right to say that this Chairman reached his decision on the basis of a misapprehension or an unpleasant suggestion that Mr McRoberts was not telling the truth about this.

We look at the material which the Chairman was entitled to rest his discretion on. He does not, of course, spell out all his reasons, but we look at the situation. The fact is that the Industrial Tribunals are very seriously overworked at the moment. There is a great delay in getting cases heard. It was never intended by Parliament that Industrial Tribunals should have such a backlog of cases. And there are other points too which stand out here quite obviously. The nature of the mishap was not such as to deprive the employers of their 14 days notice. They had had, on any view, a month's notice of this hearing.

The application was not on the basis that it was impossible, or humanly impossible, for Mr Lamb to be there, but simply that he was going on holiday and it was therefore inconvenient for him. No doubt, when it comes to inconvenience, one is entitled to balance the inconvenience to Mr Lamb of having to defer his holiday, or fly back from Portugal, against the question of justice to the parties.

The Chairman was fully entitled to bear in mind the maxim "justice delayed is justice denied" and to advert, as he expressly did, to the delay. Moreover, it is not true to say, as was asserted before us today, that there was only one witness to be called for the employers and that witness would be absent. On the contrary, there were two witnesses and Mr Toby Davis, who was present at the final meeting, can give very important evidence about it. Moreover, Mr Lamb (as we learned, when we asked about it) has in fact made a proof of evidence, a statement, and that has duly been served in accordance with the rules and will be referred to.

We are very reluctant to interfere with the exercise of discretion by the Tribunal and that is all the more so because this is an interlocutory matter and all interlocutory matters are related to the fair trial of the application. That fair trial is the responsibility not of this Tribunal but of the Industrial Tribunal and, therefore, the responsibility must rest with the Chairman of the Industrial Tribunal and that makes us specially reluctant to interfere.

If, when the statement of Mr Lamb and the evidence of Mr Toby Davis is laid before the Tribunal together, of course, with the evidence of Mr Pigott and any witnesses whom he chooses to call, it appears to the Industrial Tribunal that they are not able satisfactorily to conclude without hearing the evidence of Mr Lamb himself, then, as I indicated, it appears to us that the Industrial Tribunal should entertain an application for a further adjournment if they think it right to do so.

It is not an answer to that, as Miss Andrews suggested to us, a conclusive answer, that this matter has already been considered by the Chairman. The Chairman who has decided this matter is unlikely to be the Chairman at the hearing before the Industrial Tribunal and the question of what to do on any occasion, whether to adjourn or not, is a matter entirely for that Industrial Tribunal.

This hearing has already been delayed by the employers taking what appears to us to be a thoroughly bad point, which was only abandoned two days before the hearing of that point. I have already referred to the grave congestion before the Tribunals. No evidence was laid before the Chairman of Industrial Tribunals as to whether Mr Lamb could interrupt his holiday or alter his holiday.

These employers had 28 days notice of the hearing. The suggestion that that is short notice or in some way inadequate for justice to be done appears to us to be entirely unfounded. There are many courts and many tribunals where notice of 28 days would be thought to be extraordinarily generous. There are many cases listed the evening before.

What has happened, on any view, and this is the justice of the employer's case, is that there has been a mishap. Mr McRoberts, the Solicitor, did not learn of this date until two months after it was fixed and, of course, one can see the inconvenience that arises from that.

We cannot see that there is any basis whatever on which this Chairman's decision can be faulted as being outside his discretion. It would, on the contrary, have appeared to us to be a very strong thing if he had granted the application in the circumstances. We are not concerned to say that. All we are concerned to say is that it appears to be well within his discretion and that there are no grounds whatever shown to us in law for interfering with it, or for saying that it is irrational.

If it were a matter for our decision, there would appear to be many grounds which could be relied upon for saying that it is the right decision, but it is not our decision, it is the decision of the Chairman and therefore the appeal must fail.