Harness v Bupa Care Services [1998] UKEAT 1491_98_1712

EAT
Harness v Bupa Care Services
[1998] UKEAT 1491_98_1712 · 1998-12-17
THE HONOURABLE MR JUSTICE LINDSAY: We have before us an interlocutory appeal by Mrs Dorothy Harness in this matter. She is the Applicant below and the Respondent below is BUPA Care Services. No one appears before us but it is plain that the Respondent, BUPA, knows about this application because a moment or two ago we were handed letters indicating that they will not be opposing the appeal.Mrs Harness lodged an undated IT1 application - undated, at any rate, in my copy - and specified that her complaint was one of constructive dismissal. The complaint that she made was spread over some 24 paragraphs. It included that she had been "harassed". Speaking for myself I am not sure whether this was said to be racial discrimination or sexual discrimination. At all events, by the standards of many an IT1, it was nonetheless relatively specific and relatively detailed.On 26 October, BUPA responded with its IT3 and in the course of that response BUPA referred to its having conducted a full and thorough investigation involving the interview of some 21 staff members, which investigation, said BUPA, had led to a conclusion that Mrs Harness had not been "harassed". On 2 November, the Industrial Tribunal made an order for agreed bundles to be exchanged by the two parties not less than 14 days before the hearing and the footnote said:
"Note, Chairman has made these directions because he believes that (a) they will help the parties prepare properly for the hearing, (b) the hearing can be conducted more easily for everyone concerned, and (c) the parties have the resources to enable them to comply. "
That was the 2 November.The case was fixed on 17 November, to be heard on 22 December and therefore the agreed bundles should have been exchanged at the latest, by 8 December. If, indeed, the reference to days meant working days, they should have been exchanged before that.On 17 November (although we have not got this letter we rely upon so far as it appears from a recital in a later letter) the Applicant's, Mrs Harness's, solicitors asked for the results of the investigation. What they said later in their letter of 8 December was this:
"We made application to the Respondent on 17 November 1998 to supply certain documents referred to in their Notice of Appearance, not least the results of an investigation into her complaints, the currency of which included the interviewing of 21 witnesses. To date we have had no response to our request or any response at all from the Respondents. This documentation is particularly important as the Applicant contends that she resigned because of a failure to investigate her complaints of harassment against her. It will be necessary for the Applicant to give evidence on this matter in her proof of evidence."
On 19 November, Mrs Harness's solicitors wrote to BUPA asking for documents. On 8 December, they wrote to the Employment Tribunal, including the paragraph I have cited a moment ago. On 10 December, the Chairman refused a request for an order for the supply of documents made by Mrs Harness's solicitors. The Applicant's solicitors have also asked that the hearing of 22 December should instead of being a substantive hearing be merely a directions hearing because of the failure of BUPA to supply documents. They said that they had had no answer from BUPA, notwithstanding the request that they had made. Nonetheless on 10 December, the Employment Tribunal answered:(1) the request for a postponement is refused because it is not in the interest of justice to postpone,(2) the request for orders is also refused.On 11 December, there was a Notice of Appeal from Mrs Harness to this EAT. It is supported by written submissions. On 16 December there were added further written submissions which in our view make a powerful case against the refusal that was indicated on 10 December. We have no reason doubt that the Appellant's solicitors did indeed ask BUPA for documents and no reason to doubt that BUPA has failed to comply with the Industrial Tribunal's own order of 2 November. We have every reason to suppose that a sight of the report of BUPA's own internal investigation is likely to be highly relevant at the hearing. We have no explanation from BUPA as to why it has not been produced and not produced earlier.It is implicit in the order of 2 November, the footnote to which we cited, that compliance with the timetable there expressed for exchange of documents was necessary for a proper preparation of the hearing. The letter of the Chairman on 10 December, in the circumstances, is quite inexplicable in his simple reference to the matter not being in the interest of justice. It is a familiar doctrine in this Tribunal, under the well known case of Meek v City of Birmingham, that a party should know why he has lost or why the other side has won. Simply to say that a matter is not in the interest of justice, and not to bolster that with any further or other reasoning, seems to us woefully inadequate and represents, in the present circumstances, a real error of law.We have heard from BUPA that they do not oppose the appeal. Indeed, they say that the case is unlikely to be ready for a hearing on 22 December. It cannot possibly be in either side's interests, nor indeed in the Employment Tribunal's interests, that the parties should roll up, having prepared as best they could for a substantive hearing on 22 December, only to find that BUPA then supply the results of the internal investigation, as there would almost bound to then be a successful application for an adjournment by Mrs Harness's side in order to consider and if thought fit respond to the new material. All sides would then go away and time and expense would have been wasted.We set aside the Chairman's ruling on the ground of error of law, by reason of his failure to comply with the doctrine of Meek v City of Birmingham. Having set it aside, we direct that the hearing of 22 December shall be for directions only, given that BUPA, too, has indicated they cannot be or are unlikely to be ready for 22 December. That seems a more sensible course to take. Moreover, we direct that the hearing of 22 December should be before a different Chairman to the one who refused the request on 10 December. Which Chairman that is is not identified but the restored hearing should be before a different Chairman. To that extent, the appeal succeeds.