Connor v Empire Stores Ltd [1997] UKEAT 895_97_2810

EAT
Connor v Empire Stores Ltd
[1997] UKEAT 895_97_2810 · 1997-10-28

JUDGE PETER CLARK :

This is an interlocutory appeal by the applicant in this case, Mrs Connor, against a direction given by the Leeds Industrial Tribunal and contained in a letter to the parties dated 29th July 1997, that the case be transferred to the Manchester office. It arises in the following circumstances.The applicant was employed by the respondent, Empire Stores Ltd, at their premises in Wakefield from 20th February 1990 until her dismissal on 4th April 1997. She lives in Wakefield.On 26th June 1997 she presented a complaint of unfair dismissal to the Regional Office of Industrial Tribunals at Leeds, her local office. Her application was acknowledged as received and registered at the Leeds office by a Notice of that date.On 18th July solicitors for the respondent, Messrs Walker Morris of Leeds, entered a Notice of Appearance on behalf of the respondent, contesting the claim, together with a covering letter of that date in which they said:
"We would add that the Respondent's Group Personnel Manager, Mr Bill Campbell does sit regularly in Leeds as a Lay Member and he does have a direct interest in this particular application (he was the dismissing officer).
In the circumstances, we would request that the matter be transferred to a different Tribunal centre and would suggest that Manchester would be an appropriate alternative venue in the circumstances.The Respondents take the view that the interests of justice would not be served if the matter were to be dealt with by the Leeds Regional Office of the Industrial Tribunals for the reasons referred to above.We would therefore be grateful if you would treat this letter as a formal application to have the matter transferred from the Leeds Regional Office of the Industrial Tribunals to the Manchester Regional Office of the Industrial Tribunals."It seems that a Chairman at Leeds considered that letter and, without prior reference to the applicant, who represents herself, directed that the case should be transferred to the Manchester Region.The applicant first learned of that direction when she telephoned the Leeds office on 24th July and spoke to a member of staff about the respondent's Notice of Appearance which she had not then received. By the letter dated 29th July that direction was confirmed to the parties.On the following day the applicant did two things. She wrote to the Leeds Regional Chairman, Mr John Prophet, in the following terms:
"I wish to protest in the strongest terms to the proposition that my Tribunal case is to be tabled in Manchester.
On contacting your office by telephone on 24 July 1997, I was informed that my case had been transferred out to the Manchester. To date I have not been consulted, nor made aware as to the criteria was used, in order to arrive at this conclusion.I am also most disappointed that I am still not in receipt of a copy of the respondent's IT3, nor written confirmation of the intended case transferral.Therefore, I feel that I have no other recourse but to express my feelings with the E.A.T.. I have today lodged an appeal with the E.A.T., in an attempt to resolve this matter.However, your comments would be appreciated with regard to the above points, and I look forward to hearing from you."On the same day she lodged a Notice of Appeal against that direction with this appeal tribunal.On 5th August a letter was written to the applicant on the instructions of the Manchester Regional Chairman in reply to the applicant's letter of 30th July to the Leeds Regional Chairman. It read:
"The Regional Chairman has requested me to say that the decision to transfer the case from the Leeds Region to the Manchester Region was a decision taken by the Leeds Region. However it is clear from the contents of the Case File that the reason for the transfer was because the Leeds Region received information that the respondents' Group Personnel Manager, a Mr Campbell (who is a member of the Industrial Tribunals for the Leeds Region) is involved in this particular case and that it was highly probable that he would also be a witness in the proceedings. In these circumstances the decision was taken at Leeds Regional Office that it would be totally inappropriate for the case to be heard within the Region in which a witness is a member of the Tribunals of that Region, ie the decision to transfer was taken on the principle that justice must not only be done but also must be seen to be done. The Regional Chairman has also requested me to say that whilst the decision to transfer was not his decision it is a decision with which he fully agrees. Moreover despite what you say in the second paragraph of your letter of 30 July 1997 to the Leeds Regional Chairman about being unaware of the criteria which was used to arrive at the decision to transfer it is understood that during the course of a telephone call which you made to the Leeds Regional Office on 24 July 1997 you were informed that the case had been transferred to the Manchester Region and the person to whom you spoke gave you the reasons for that decision having been made."
Thereafter, by letter dated 7th August, the Manchester office replied to a letter dated 5th August which the applicant had sent to the Leeds office, enquiring as to whether other Empire Stores cases had been transferred out of the Leeds Region. A Chairman in Manchester ruled that she was not entitled to that information. Also, on 7th August, the Manchester office gave Notice of Hearing in the matter to take place in Manchester on 5th September 1997. However, that date was subsequently vacated pending the outcome of this appeal.

The Appeal

Neither party has attended to present oral submissions and thus we have decided this appeal on the papers; in particular the skeleton argument presented by the applicant and the respondent's answer.The first point taken by the applicant is that no transfer ought to have been ordered on the ground that Mr Campbell, the dismissing officer in her case, was a member of the panel of lay members in the Leeds Region. She submits that the lay members in that Region may be relied upon to be impartial and independent in adjudicating on this case.Whilst we do not doubt that impartiality we also understand the concern of the Leeds Regional Chairman that justice must not only be done but also be seen to be done. The Industrial Tribunal system depends upon local people with industrial experience who will sit as lay members. It is plainly undesirable that a case involving one such member as a witness should be heard by a Chairman and lay members from the same Region.However, that is not the end of the matter. The applicant's second point concerns a basic principle of Natural Justice. The decision to transfer this case to Manchester was not administrative but judicial. It was taken without giving the applicant an opportunity to make any representations.The applicant draws attention to Rule 19(1) of the 1993 Industrial Tribunal Rules of Procedure., which provides for the transfer of cases between England and Scotland. That rule, expressly provided for for the first time in 1980, requires that no such transfer shall be directed unless notice has been sent to all parties concerned giving them an opportunity to show cause why a direction should not be made.This case does not involve transfer to Scotland, hence Rule 19(1) does not directly apply. However, we think that the same principle applies here to what is a direction under Rule 16(1); it is a direction on a matter arising in connection with the proceedings.If authority were needed for the proposition that before giving a transfer direction between regions all parties should be given the opportunity to make representations it is to be found in the judgment of Browne-Wilkinson J in Peter Simper & Co Ltd v Cooke (No.1) [1984] ICR 6 . That case concerned an interlocutory order by a Chairman alone that a case be reheard by a different tribunal following a complaint of bias. The Employment Appeal Tribunal held that he ought not to have decided the matter without consulting his lay members sitting on the original Industrial Tribunal, and that he was wrong to treat the matter as a review. Further, he had been wrong to decide the point, on the employer's representations, without giving the applicant an opportunity to make representations. At p.11A of the report Browne-Wilkinson J said this:
"Moreover, as we have said, the application, in its detailed form, was never communicated to the employee's advisers, nor was she given any opportunity to comment on it. The consequence of directing a rehearing was to throw away the costs of two days' hearing and thereby to prejudice the employee directly and immediately. In our judgment, it cannot be in accordance with the rules of natural justice that an order, having such an immediate impact on a party, should be made without that party having an opportunity to be heard on it."
Our powers to interfere with interlocutory orders of Industrial Tribunals are limited to correcting errors of law. Medallion Holidays Ltd v Birch [1985] ICR 578 . In our judgment the Leeds Chairman fell into error in directing that this case be transferred to Manchester without first seeking representations from the applicant.Having identified an error of law what are we to do? We can affirm the order; remit the case for reconsideration by a Chairman or exercise our powers now contained in s.35(1) of the Industrial Tribunals Act 1996 , that is the powers of the Industrial Tribunal. We shall take the latter course.The applicant's objection to the case being transferred to Manchester is set out in her skeleton argument thus:
"Due to the nature and complexity of the case it is envisaged there will be quite a number of witnesses who will be required to attend the hearing from both parties. This could necessitate a hearing lasting 2/3 days, which in view of the distance and time involved in travelling to the Manchester Office of Industrial Tribunals, this would be totally impractical, particularly in the view of my witnesses who would not be attending "on company time, pay or transportation". It should be borne in mind that most of my witnesses are part-time working mothers with young children, for whom provision has to be carefully organised. I feel the distance and time factor alone could well prove to jeopardise my case, therefore giving an unfair advantage to the Respondent's professional team."
She seeks an order, if her appeal succeeds, either that the case be returned to the Leeds Region or that it be heard at Leeds before a tribunal drawn from the Manchester Region panel.We see considerable force in the applicant's objection. It is through no fault of her own that the case ought to be heard by a panel drawn form outside the Leeds Region. It would be unjust if she were compelled to issue witness summonses to compel the attendance of part-time working mothers at a hearing held in Manchester. One volunteer is worth ten pressed men or women. We also assume that Leeds is the most convenient venue for the respondent's witnesses and solicitors. In these circumstances, balancing the interests of the parties and the convenience of the administrative arrangements of the tribunals we shall direct that this case remains in the Manchester Region, and that any purely interlocutory hearings for directions (not involving the taking of evidence) shall be held in Manchester. The substantive hearing of the case, and any hearing of a preliminary issue which involves the taking of evidence, shall take place at the Leeds Office before a Chairman or full tribunal, as may be appropriate, drawn from the Manchester Region.Accordingly, the appeal is allowed to the extent which we have indicated.