Broudie & Anor v Khan [1997] UKEAT 1_97_1501

EAT

Broudie & Anor v Khan

[1997] UKEAT 1_97_1501 · 1997-01-15

MR JUSTICE KIRKWOOD: This is an appeal against the refusal of an Industrial Tribunal at Liverpool to adjourn a case listed for four days to start on 21 January. The case pending before the Industrial Tribunal is a claim concerning Ms Khan under the Sex Discrimination Act 1975 . She alleges sex discrimination by harassment.

Ms Khan is a Solicitor and was employed as an Assistant Solicitor by the firm of R.M. Broudie & Co on 9 May 1995. Her employment was terminated by letter on 27 June 1996. That, chronologically, followed a letter from Ms Khan's Solicitors to Mr Broudie, the Senior Partner, dated 21 June 1996, in which allegations of sexual harassment were made. Ms Khan's application on form IT1 was received at the Central Office of the Industrial Tribunals on 1 July 1996.

It appears on the papers before us that on 18 November 1996, Mr Broudie may have applied to have the hearing fixed for 21 January 1997 vacated on the ground that he would be on holiday.

On 17 December 1996 Ms Khan was arrested by police who were investigating an inaccuracy or inaccuracies in her curriculum vitae presented when she applied for and obtained her post with Broudie & Co. That investigation continues.

On 18 December a further application to adjourn was made by Broudie & Co on the ground that the credibility of Ms Khan would be a central issue in the hearing of her application and that the outcome of the police investigation would have a significant bearing on that. There was also an application for a witness summons in respect of the investigating police officer. Those applications were refused and it is against that refusal that the amended Notice of Appeal is directed. It is accepted that the decision lay within the discretion of the Chairman of the Industrial Tribunal, but it is said that no reasonable Tribunal could have reached that decision in all the circumstances of the case.

The intimation of the Chairman's decision is in these terms:

"A Chairman of the Industrial Tribunals to whom your letter was referred has instructed me as follows. The principal basis for the application for Postponement appears to be that the Applicant's credibility in relation to her allegations of the sex discrimination can be improved by reference to other unconnected matters. That is not a persuasive argument. In any event (and insofar as it might be relevant) the Respondents appear to be claiming that they can establish dishonesty in some areas. The Chairman does not see how the allegations of discrimination should be seen against the background of her having misled the Respondents as to her qualifications, but in any event, the Respondents appear to be saying they can already establish their facts.

For those reasons, there appears to be no reason why the Police Officers should be expected to give evidence, or any other reason to postpone the request is therefore refused."

In the skeleton argument it is recognised that the Chairman has an unfettered power to decide upon an adjournment. That power must not be used arbitrarily or capriciously and must indeed certainly not be used to defeat the general object of the legislation. It is recognised that a decision by a Tribunal to postpone the hearing can only be interfered with on appeal, if it is shown that the Tribunal erred in law or that the decision is perverse.

The argument in support of this appeal is first of all that credibility is very much in issue. It is said that the curriculum vitae misrepresented the Applicant's academic degree and her general certificate of education passes and that appears to be established without further evidence. There is no clear and conclusive evidence of other irregularity, although the police enquiry may turn some up. It is argued that a finding against Mr Broudie followed by a subsequent discovery of further irregularity in the CV may lead to an appeal. It is said that the issue of Ms Khan's qualifications and history goes to Mr Broudie's reasons for dismissing her, so that it is vital for him to be able to explore the extent of any misrepresentation.

Questions of credibility and how it is to be determined and questions of relevance are matters for the Industrial Tribunal and it is not for this Appeal Tribunal to trespass upon those areas in any way. The decision of the Chairman lies within his discretion. The manner in which the Tribunal lists and regulates its business and conducts its hearing is a matter for the Tribunal. Insofar as it appears that the Chairman may have formed a purely preliminary view, as to relevance of certain material, that is a matter for the Tribunal to look at in detail when the case is fully before them and the Tribunal has ample power so to regulate the conduct of the hearing, whether by requiring the attendance of witness by summons or by any necessary adjournments, so as to ensure that justice is done.

We also have in mind that the Chairman has a responsibility to ensure the efficacious despatch of business and the refusal to allow an adjournment reflects a determination to get on with the case and to proceed with its hearing.

Whilst noting the arguments put forward, we see no basis for interfering with the exercise of discretion by the Industrial Tribunal and this appeal will be dismissed.