(1) MR J LYNN (2) MR G RATHBONE v BOOKTRADERS LIMITED [1999] UKEAT 1318_99_0112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1318_99_0112Case No Appeal No. EAT/1318/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR J LYNN (2) MR G RATHBONEAPPELLANTBOOKTRADERS LIMITEDRESPONDENT
Before
His Honour Judge D Pugsley Dr D GrievesDate 1 December 1999
[1]APPEARANCES For the Appellants MR J CROSFILL (of Counsel) Instructed by: Ms N Ardill North Islington Law Centre 161 Hornsey Road London N7 6DU For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED JUDGE DAVID PUGSLEY : This is a case which comes before us as an emergency appeal from an Interlocutory Order. We have, however, been assisted by an extremely able skeleton argument prepared by Mr Crosfill, which enables us, we hope, to have assimilated the issues very rapidly. We have also read the fax of Sebastians Solicitors in which they resist the appeal. The factual background is that the respondents are in business as wholesale booksellers. As part of that business they have a warehouse in which both appellants were employed. Mr Rathbone was the warehouse manager and Mr Lynn a warehouseman. In October 1997 a Ms Griffiths started working for the respondents, preparing invoices and customer credit notes. Both Mr Rathbone and Mr Lynn experienced problems with Ms Griffiths, the extent to which the blame lies with her or anyone else is not a matter for us. Mr Rathbone complained about Ms Griffiths and was shortly dismissed thereafter. Ms Griffiths then started working in the warehouse. Shortly thereafter Mr Lynn resigned and in his case it was the behaviour of Ms Griffiths he claimed which made it impossible for him to remain employed by the respondents.[2]The appellants' representatives wrote to the Employment Tribunal on more than one occasion that the matters be heard together. In submitting their Notices of Appearance the respondents' covering letter drew attention to the overlap of factual issues in the two cases. A decision/order of a Chairman of the Employment Tribunal was contained in a letter dated 12th November 1999 that had the advantage of brevity:
"Further to your letter of 5 November 1999, I have been instructed to inform you that the cases will not be consolidated and will be listed separately."
It is from that decision that these appellants appeal. The respondents in their answer say:
"Our client's position is that while they do not believe that the two cases should be consolidated, they do not believe that it is worthwhile incurring the cost to attend at the hearing to resist the Appeal. Therefore, they are content to leave the Appeal to the Tribunal."
[3]It is right to say fundamental difficulties that confront a tribunal where one has two cases which raise certain common factual issues. If you list them both before the same tribunal to follow consecutively and if the first tribunal hearing results in adverse findings against a witness X, it is difficult, one suspects, for Mr X to have much confidence in how they will view him on the second appearance. If, on the other hand, you list the cases before two different tribunals, there is then a problem that on the same factual matrix different results may occur. If you list the cases consecutively but do not announce the reasons to the end, then certain issues of fact may arise in one hearing which may carry over to the second hearing and those representing the second person may not necessarily be in a position to deal with what happened at the tribunal where he or she was not there and does not know what was said. That may not be a great problem in this case, because we suspect the advocates will be the same people in either event. If, on the other hand, you list and consolidate the matters into one hearing, there maybe an extent to which parties are prejudiced.[4]The pressures on the whole judicial system are enormous. We are not saying this in any spirit of criticism, because we do not know what the pressures on the Chairman were, but we do consider that the complaint that the parties do not know why the decision has been taken is an important one. If this case was to be heard several months hence, we would have sent it back to the tribunal Chairman and asked him/her to give his/her reasons. The difficulties are considerable in cases like this. We do not think it is right to make any decision which would pre-empt how the Chairman should view it. We are unanimously of the view that we should allow the appeal to the extent of ordering that on the first day, which is 7th December, that both cases be listed with all witnesses and that the tribunal Chairman then listens to submissions as to the future disposal of the case. We are not saying for a moment that the Chairman was wrong, nor are we saying he or she was right, we simply do not know because we do not know their reasons. We think that it is how the issues in this case should be resolved and that is the only way in which we think it can be dealt with.