ELM Energy & Recycling (UK) Ltd v Evans [1995] UKEAT 732_95_2607

EAT
ELM Energy & Recycling (UK) Ltd v Evans
[1995] UKEAT 732_95_2607 · 1995-07-26

JUDGE BUTTER QC:

This is an appeal by the employers from a decision reached by the Chairman of an Industrial Tribunal held at Birmingham on 31 May 1995. The Chairman refused the application for an adjournment of the proceedings. The employers are dissatisfied with that decision and appeal to this Tribunal. In his decision with full reasons, the Chairman set out the background in paragraphs 1, 2 and 3 onwards. The position was that a High Court action had been brought by the employers against the Applicant. The main basis of the employer's application to the Tribunal was because of those proceedings. The Chairman referred to the fact that the Applicant, Mrs Evans, was the Managing Director of the Respondents, Elm Energy & Recycling (UK) Ltd., under a Service Agreement dated 3 March 1992. That agreement was, on the face of it, for a term of five years. The employment terminated at the end of 1994 or the beginning of 1995. The Applicant says that she was constructively dismissed. The Respondents say that they lawfully terminated the agreement. On the same day as the agreement appears to have terminated the 3 January 1995, they issued a writ. On 23 February the Applicant presented her originating application to the Tribunal. She alleged that she had been constructively dismissed and alleged further that she had been less than favourably treated on the grounds of sex.In the course of his decision and reasons, the Chairman expressed satisfaction, as is correct, in paragraph 6, that there is a significant overlap between the two proceedings, which largely cover the same ground. That is accepted before this Tribunal. Exclusive, he said, to the Tribunal is the allegation of sex discrimination. In paragraph 7, the Chairman went on to deal with the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR221 . In paragraph 8, he dealt with the Applicant's reasons for wishing to press on with her application before the Tribunal. Towards the end of that paragraph he said:
"... If her application were successful, she would be able more easily to mitigate her loss and find alternative employment. There would then be no need to pursue her counterclaim in all probability."
In relation to the counterclaim, it is to be said at once that it is on the face of it, potentially a large one, but it is subject to the question of alternative employment. We have heard rival arguments on this point and we can see reasons why the Chairman said what he did. We are not persuaded that that one observation in any way obviates the reasoning or conclusion to which he later refers.In paragraph 10 he deals specifically with the case of Automatic Switching Ltd v Brunett [1986] ICR542 , in paragraph 11, the case of Carter v Credit Exchange [1979] ICR908 , in paragraph 12, with First Castle Electronics Ltd v West [1989] ICR72 . In paragraph 13, he then went on to consider a number of specific matters, saying that he was satisfied that the following can be said:
"(a) The issues before the tribunal and the Court are virtually the same. (b) Those issues cannot be said to be complicated: no expert evidence is contemplated..."
We are told that it was conceded by the solicitor for the employers that it was not intended to call expert evidence. He then goes on to set out a number of matters, which in the opinion of this Tribunal do not require particular consideration, except maybe in relation to the point made on discovery.

(f) :

"Discovery and pleadings raise no complicated issues."

The Appellants argue that the question of discovery is of vital importance and that the rules and/or practice of the Industrial Tribunal would be less satisfactory in this particular case, than those in the High Court.It should be remembered, however, that under the current rules, the Industrial Tribunal does have extensive powers in relation to the question of discovery of documents. We are not persuaded that there are any significant or substantial points on that. In paragraph 13(g)the Chairman draws attention expressly to the fact that:
"... Damages claimed in the counterclaim far exceed what a tribunal could award the applicant."
In paragraph 14 he deals with the question of the hearing itself. In paragraph 15 he deals with the question of delay. In paragraph 16 he deals with the position as to the complaint under the Sex Discrimination Act 1975 . He then goes on to deal with the case of Bowater Plc v Charlwood [1991] ICR . In paragraph 18, he says:
"In my opinion, in the light of the factors that I have outlined and taken into consideration, the answer to this question is the industrial tribunal. (In other words, that that was the Tribunal where the proceedings should continue) I therefore refuse the respondent's application for these proceedings to be postponed."
He then gave various consequential directions.We have been referred to a number of the authorities. I can say briefly in relation to Automatic Switching Ltd v Brunett that there the issue being considered was that of estoppel, though there are some observations which are relevant at page 546 D-E. In Bowater Plc v Charlwood there had been procedural irregularity. The E.A.T. therefore exercise its own discretion. Clearly there are observations at page 803 which are significant, and which it is only right to take into account. In First Castle Electronics Ltd v West with reference to the principles to be applied, see in particular page 78 E-F, that case was referred to by the Chairman. We see no reason to think that he had not read the contents of that report. It is of great importance to bear in mind that the E.A.T. deals with questions of law. We will only interfere if there is an error of law or if a Tribunal has reached a decision which no Tribunal properly directing itself could reach. Here the Chairman had a pure discretion. True, a discretion to exercise judicially, but nevertheless a pure discretion. It may be convenient if I refer to one or two passages to be found in the case of Carter v Credit Change Ltd [1979] ICR908 . The decision commences at page 908, the passage I have in mind is at page 916 and a further passage at pages 917 and 919.

(f) the Court of Appeal says:

"We have been referred to four cases in which the appeal tribunal has considered the exercise of this discretion by chairmen of industrial tribunals, and it is not without interest that in every case, whether the industrial tribunal chairman had refused a stay or granted a stay, the appeal tribunal upheld the industrial tribunal chairman. This is the first case, as far as Mr Cresswell is able to inform us, in which the appeal tribunal has reversed the decision of the industrial tribunal chairman. That is less surprising when one remembers that an appeal lies from an industrial tribunal to the appeal tribunal on a point of law only, as it does from an appeal tribunal to this court on a point of law only.
The first of the authorities to which we were referred is the first of the two cases cited to and by the chairman of the industrial tribunal, Jacobs v Norsalta Ltd . In that case Phillips J. presiding over the appeal tribunal referred to Rule 11(2)(b) and said at p.191:`We accept, of course, that the power under rule 11(2)(b) must not be used arbitrarily or capriciously, and must certainly not be used in order to defeat the general object of the legislation. But, subject to that, it seems to us that the industrial tribunal has a complete discretion, so long as it exercises it judicially, to postpone or to adjourn any case provided there is good, reasonable ground for so doing'."Then at page 917, Mr

Justice Phillips made the statement cited to the court in Carter v Credit Change Ltd. :

We are also impressed by the point that, ordinarily speaking, a claimant before an industrial tribunal is entitled to have his claim quickly disposed of, in what is intended to be a simple, readily available form of proceedings; it is not desirable, except in unusual cases, to have to delay or postpone the hearing in order to await the outcome of other proceedings."The Court then went on to deal with the merits. There is one passage at page 919D to which I should make reference.

Lord Justice Stephenson giving, in effect, the judgment of the Court of Appeal said:

"I accept Mr Cresswell's submission that the appeal tribunal erred in law in the principle which they sought to lay down. I would lay down no principle except the principle (if it can be called a principle) that the industrial tribunal chairmen should attempt to do justice as best he or she can in each individual case. I think it unnecessary and undesirable to go on to examine the reasons for the decision of the chairman in this case or the correctness of those reasons; but I think I have read enough of them to show how difficult it is to mount any argument that his decision was not a reasonable and sensible decision, and how impossible, in my judgment, it would be to argue that he had failed to take into account any relevant factors or taken into account any irrelevant factors in reaching the conclusion to which he came."...Finally, I make reference to an unreported case Mavity v Brooks E.A.T.590/90 , a decision of this Tribunal on 21 December 1990. The judgment was delivered on 7 February 1991. At page 3, the learned

judge Mr Justice Tucker said:

"The Industrial Tribunal considered all these matters. They set out with clarity the reasons for their decision. In the end it was a question of exercising their discretion one way or the other. They having exercised this discretion against the appellants, the appellants now appeal against the decision. Counsel has analysed it with painstaking thoroughness. He submits that the tribunal went wrong in the following respects. [Then some seven respects are set out]. We have considered these submissions. We reject them. In our opinion the Tribunal was perfectly entitled to come to the decision which it did in the exercise of its discretion. The discretion was properly exercised. It was not incumbent upon them to set out and deal with seriatim each and every one of the submissions made to them, nor to refer to every consideration which affected their decision.
In our view those decisions do not assist the appellants. There is no principle of general application to be derived from them. We are certainly not persuaded that there is any concluded approach - the fact that there may be a tendency to go in one direction does not mean that Industrial Tribunals or the EAT are bound to do so. It must always be a matter of balance of convenience and fairness, and a matter for the exercise of the discretion of the first instance tribunal."...We in this Tribunal would echo those words. We have considered the arguments put forward and are clearly of the view we are unpersuaded that the Chairman of the Tribunal exercised his discretion wrongly or in circumstances which would be right for this Tribunal to interfere. We are unanimous in the view that the appeal fails and must be dismissed.