MS J LOUNSBACH v ROBERT HARDING PICTURE LIBRARY LTD [1999] UKEAT 1141_99_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1141_99_2510Case No Appeal No. EAT/1141/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS J LOUNSBACHAPPELLANTROBERT HARDING PICTURE LIBRARY LTDRESPONDENT
Before
Mr Justice LindsayLord Gladwin of CleeDate 25 October 1999
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us an interlocutory appeal and unusually, because we feel that the case has been very badly handled at London (North), we have thought it right to give a judgment at some length setting out the apparent chronology in this matter. We will be requiring a copy of the transcript to be sent both to the Regional Chairman at London (North) and to the President of the Employment Tribunals for England and Wales. The story that we are about to tell discloses a practice which seems to us not at all conducive to the administration of justice. Ms Jane Lounsbach commenced employment at Robert Harding Picture Library on 5 May 1998 and continued there until 31 March 1999. She was a Picture Researcher. On 4 June 1999 her IT 1 was received by the Employment Tribunal alleging sexual discrimination, victimisation and unfair dismissal. On 24 and 25 June 1999 the Respondents, that Company and an individual, Mr Martin Pittaway, a Manager at the Company, lodged their respective IT3s.[2]On 18 August 1999 there was a Notice of Hearing sent for a hearing fixed for 26 and 27 October 1999. We have not got the Notice of Hearing in our papers but it is referred to. Thus in their letter of 8 September 1999 Peninsula Business Services, who had been instructed on behalf of the Respondents, begin their letter by referring to the Notice of Hearing dated 18 August 1999:
"… confirming the above planned two day hearing for this case. As is usual practice, as soon as receiving the Notice of Hearing, I copied it to the Respondent to confirm the availability of all our proposed witnesses."
[3]That seems to indicate that the Notice of Hearing was dated 18 August 1999 and there is nothing there to suggest it was not received in the ordinary course of post very shortly thereafter, perhaps 19 or 20 August 1999. The date of the hearing, of which notice was thereby given, although described in the letter of 8 September from Peninsula as scheduled for Wednesday 27 October, was, it seems, truly for the first day, the 26th and the second day the 27th. That has been confirmed to me from the London office only this morning. That Notice of Hearing was presumably in the usual form which has a strong paragraph indicating that adjournment for accommodating availability of witnesses will not normally be accepted after 14 days from the Notice of Hearing. That usual endorsement is in strong terms making it quite clear that once 14 days from the Notice of Hearing has expired a very strong case needs to be made for moving the fixture merely on the ground that witnesses cannot otherwise be heard. Despite that, some 21 days had elapsed until, on 8 September, as I mentioned earlier, Peninsula, on behalf of the Respondents, wrote to ask for an adjournment. They asked for the adjournment as a matter of urgency. It was said in that letter that:
"Robert Harding, the Respondent's Managing Director and main witness will be away in New York on a pre-planned holiday and business trip in the period 23rd October to early November 1999."
It was said that:
"Without Mr Harding, there is no one else from the Respondent's side who can adequately give evidence on the Respondent's behalf."
It will be noticed that the indication there was that the trip abroad was to begin on 23 October, in other words, before the date planned for the hearing and over the dates fixed for the hearing.[4]Fifteen days then elapsed before the Chairman on 23 September by letter indicated that that request for an adjournment had been turned down. I should have mentioned that there is no endorsement on Peninsula's letter of 8 September that indicates a copy of it was to be sent to the other side, Ms Lounsbach.[5]On 23 September the Employment Tribunal at London (North) write that:
"A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

(s) "

Then, rather strangely, instead of giving what the "following reasons" were the letter rather changes drift and it says:
"The Chairman will reconsider the request if it is accompanied by proof that the witness' travel was booked before the case was listed and you state what the witness can give evidence about and how his evidence is relevant to the issues. Have you considered whether another witness can give the necessary evidence?"
That was sent to Peninsula on 23 September and, to judge from the endorsement at the foot of the letter, a copy was sent to Ms Lounsbach.[6]It would seem, so Ms Lounsbach tells us, that she had objected to the adjournment. What she says in her grounds of appeal is:
"I objected to this request for a postponement for emotional reasons."
[7]It is strange that, despite the endorsement on the Notice of Hearing, the letter of 23 September does not make the point that no explanation had been given by Peninsula of the considerable delay between the Notice of Hearing of 18 August and the request for an adjournment on 8 September. One would not like to think that the Employment Tribunal is in the habit of sending out stern notices but ones the terms of which are totally ignored, and yet the import of the strict terms of the endorsement of Notices of Hearing seems not to have been attended to when the application was dealt with on 23 September.[8]At all events, the Chairman refused the request but indicated, as we have mentioned, that the matter could be reconsidered. Twenty-six days then elapsed before, on 19 October, Peninsula make a fresh written request, sending some material to back up their case for an adjournment. They sent the flight-booking invoice by which Mr Harding had acquired the tickets to go on his trip to America. They say in their letter:
"The flight was originally booked on 27th August 1999, which was prior to the date I received and copied the Notice of Hearing (for the presently scheduled hearing) to Mr Harding."
[9]That is difficult to read alongside their earlier assertion that they had received the Notice of Hearing dated 18 August 1999 and that, as was their usual practice, as soon as they had received it they had copied it to the Respondent. Also, the ticket details seem to indicate that the ticket was booked on 27 August which was, of course, well after the date at which the Notice of Hearing of 18 August should have come to the Respondent's attention. Moreover, the date, 28 October, as the outward bound leg of Mr Harding's travel arrangements, does not seem necessarily to conflict with a hearing on the 26th and 27th, which had been the dates fixed as early as 18 August 1999. There is no indication of Peninsula's letter that it was copied to Ms Lounsbach.[10]On 20 October, by telephone and unknown to Ms Lounsbach, the Regional Chairman apparently orally granted an adjournment at the behest of Peninsula in response to that letter of the 19th and, without consulting Ms Lounsbach, re-fixed the hearing for 12 and 13 January 2000. Of course, at this point Mr Harding still had not left for America. He is not due to leave until 28 October.[11]On 21 October Ms Lounsbach phoned the Employment Tribunal in relation to the hearing of 26 October and found out, by chance, that the hearing had been cancelled. She remonstrated, hardly surprisingly, that she had not in any way been consulted. She says this:
"Today, 21st October, I telephoned the Tribunal office at Woburn Place to see if they knew whether Mr Harding was definitely going to be present at the hearing on Tuesday 26 and Wednesday 27th October because I had not been able to contact his representative, who has been out of the office every time I have telephoned. I found out by chance from a Miss Elliott, an Administrator there, that my Tribunal hearing has suddenly been cancelled to enable Mr Harding to take his trip and the letters to inform parties are being sent out today. She informed me that the Regional Chairman dealt with a 2nd review of this original request for postponement yesterday, 20th October, and that the hearing is now postponed until 12th and 13th January 2000. I expressed in the strongest terms to Ms Elliott that I simply could not wait until next year for a postponement and she said she would go directly to speak to the Chairman to see if they would take my objections into account before the letters containing the decision were released. Ms Elliott called me back half an hour later to tell me that the decision yesterday had been taken by the Regional Chairman (who is away from today until the end of next week) and that none of Chairmen felt they could override a decision by the Regional Chairman. Had the Regional Chairman been available today to take my objections into account (which only 4 days before the hearing are considerably more pressing), or indeed any Chairman other than the Regional Chairman [had] made the decision yesterday then my objections would have been taken into account and the decision to postpone possibly altered. I cannot understand how I can have less rights to have an objection simply because the Regional Chairman is not back at work until the end of next week."
[12]It was on 21 October that the telephone message of the 20th granting the adjournment came to Ms Lounsbach's notice. She, on 21 October, lodged a Notice of Appeal to the Employment Appeal Tribunal, part of which is what I was previously reading from. She adds reasons, both general and particular, for opposing the adjournment and for fixing 12 and 13 January for the hearing[13]On 22 October a letter was sent out from the Employment Tribunal at London (North) directly to Peninsula and Ms Lounsbach. It says:
"A Chairman has granted the Respondent's solicitors request for a postponement of the hearing listed to take place on 26 and 27 October. This case has now been re-listed for 10.00 am or as soon as possible thereafter on Wednesday 12 and Thursday 13 January 2000, at the above address. Make sure that you arrive by 9.30 am to be in good time for the hearing. Please accept this letter as formal notification of the new date. A copy of the guidance notes and map are enclosed."
[14]This morning, Monday 25 October, we have received a letter from Peninsula stating that the gentleman normally dealing with the case on the Respondent's behalf, Mr Wilford, was not able to attend and that also another writer was unable to attend but that we were to consider the letter which was put before us by Peninsula as a Respondent's notice and a submission. We also have Ms Lounsbach before us this morning, in person.[15]The enquiries which we have made of London (North) have established that, unhappily, the dates, the 26th and the 27th, that is to say tomorrow and the next day, have already been not only vacated so far as concerns this case but have been given to other parties. The difficulty therefore that we are in is that we cannot oblige London (North) to restore those dates for Ms Lounsbach's case without causing injustice to other parties who have been given those imminent dates and who are, no doubt, preparing accordingly.[16]Moreover, the advisers to the Respondents in this case, having been told by the London (North) Tribunal that the dates, tomorrow and the next day, were vacated have, no doubt, ceased to contemplate a hearing on those two days. Once we thus delay until the 28th at the earliest, then, of course, Mr Harding will have flown out of the country, due to return on 2 November.[17]We had in mind fixing a hearing beginning, let us say, on or after 8 November as being as early a date as would be practicable in order to cope both with Mr Harding's return and with his advisers having time enough to consult him after his return as to preparation for the case. But unfortunately, Ms Lounsbach tells us that one of her witnesses is in difficulties and, upon hearing her application, it becomes quite clear that the only dates that are likely to be just to both sides are dates between 18 November and 30 November. If the date is before 8 November then, as we can see, the Respondent is likely to be in difficulties; if the date is after 30 November the Applicant will be in difficulties. We have not been told by Peninsula of any difficulties between 18 and 30 November but we have been given details of Ms Lounsbach's difficulties, which in particular consist of a witness, Miss Dodd, leaving the country in early December for several months and more generally, consist of a natural wish to have the case, involving inter alia, allegations of sexual harassment, concluded as early as possible lest her health should be put under stress longer than truly necessary.[18]Accordingly we direct that there is to be a two-day hearing of this case fixed at London (North) on or after 18 November and not later than 30 November 1999. Within that window, so to speak, the two days that are selected by London (North) are to be two days that are arrived at upon further consultation with both sides. In practical terms that is the best we can do but we are concerned about the way in which this case has been treated and concerned also to learn that it is said that, as a matter of policy, a "review" can take place of an adjournment application without both sides being reconsulted. The fact that Ms Lounsbach was not told at all of the second application, by Peninsula's letter of 19 October, seems to us remarkable but is consistent with this so-called policy of not consulting when there is a "review". Strictly speaking, we have no reason to think this was a review within rule 11, which is headed "Review of Tribunal's decision". That lays down formal requirements for a proper review which do not seem to have been respected here. It is not, strictly, a review that was thus in question but, leaving that aside, anybody that has any experience of dealing with applications for adjournments will know that the grounds on which applications are made and the grounds on which they are resisted change from week to week and from day to day and, indeed, not only are objections and applications made in general terms but one has also particular grounds so that a party may have a particular ground for not being able to cope with one week, because of the absence of one witness and another week because of some other and quite different reason. Nor can one deal with applications for an adjournment in the abstract because the date to which the adjournment is proposed is itself a factor in knowing why the application should be granted or refused. Thus to have a practice that, on an adjourned application for an adjournment, one side need not be consulted, seems to us a policy that invites injustice and, as it seems to us in this particular case, got it.[19]We shall send a copy, as we mentioned earlier, of this judgment to both the President of the Employment Tribunals and to the Regional Chairman at London (North). Our hands have been tied by the practicalities of the case. We would have wished to have restored the original dates of 26 and 27 October but that we cannot do for the reasons we have given. But we would not wish to leave the case without marking our serious concern at the way in which the matter has been handled.