PANERI LTD v MR P CHARALAMBOUS [1999] UKEAT 474_99_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 474_99_1310Case No Appeal No. EAT/474/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PANERI LTDAPPELLANTMR P CHARALAMBOUSRESPONDENT
Before
Mr Justice Holland Mr P DawsonDate 13 October 1999
[1]APPEARANCES For the Appellants MR SHAKALIS (Solicitor) MR JUSTICE HOLLAND : By an IT1 dated 9th November 1998 Mr Charalambous made a complaint alleging unfair or wrongful dismissal. The respondents to the complaint were his employers, Paneri Limited of 340 High Road, Wood Green, London N22.[2]The matter came for hearing before an Employment Tribunal held at London (North) on 5th February 1999. At the hearing the applicant was represented by Mr Landolt, a member of the Bar. The respondents were represented by Mr Georgiou, an accountant. The decision of the tribunal was, first, that the applicant had been unfairly dismissed by reason of his conduct; and second, that he was entitled to be paid the sum of £1,230 as compensation for that unfair dismissal.[3]Against that decision an appeal has been launched. The essential thrust of the appeal, appears from a Notice of Appeal in these terms:
"The Tribunal failed to consider or consider adequately the merits of the case, the Respondent's evidence and in particular: 1. The Respondent's request to adjourn the hearing of the 5th February and thus enable the respondent's witnesses to attend; and in any event 2. Did not place any reliance on the statements of those witnesses."
[4]In order to understand the thrust of this appeal it is necessary to review briefly the correspondence that preceded the hearing, which correspondence has been put before us this morning. For the present purposes the correspondence starts with a letter from the Employment Tribunal to both parties dated 16th December 1998, which letter contains the directions of the Chairman. It is to be noted that one such direction was:
"Each party should within 14 days disclose to the other all documents on which it is intended to rely at the hearing. … It is the usual practice in the Region for the evidence of witnesses to be given by reference to their written statements and then to be cross-examined by the other party."
[5]On 5th January 1999 accountants, G George Associates, acting for the respondent, wrote to the applicant indicating that the respondents were in a position to comply with those directions and inviting the applicant to make contact so that matters could be taken forward.[6]On 8th January 1999 the Employment Tribunal gave notice that the matter was to be heard on 5th February 1999 and intimated that any application for a postponement had to be received within 14 days of the notice.[7]On 19th January the respondents, by way of the accountants, wrote to the Employment Tribunal intimating that they had had no communication at all from the applicant and concluding:
"We therefore write to report to the Employment Tribunals that as Mr Charalambous did not comply with the directions, we consider that the hearing on Friday 5 February 1999 is not going to take place and that the case be dismissed, unless we hear to the contrary."
That had a response from the tribunal dated 23rd January 1999 intimating that the Chairman had said that the case would go ahead and concluding:
"If the Respondent wishes to make any representations he may do so at the start of the hearing."
[8]That, in its turn, was responded to by the respondent, through the accountants, by way of a letter dated 1st February 1999. By way of that letter they requested an adjournment in these terms:
"We wish to request an adjournment because the applicant, Mr P Charalambous, did not comply with the letter of directions dated 16 December 1998. Mr Charalambous and his representatives were very late informing us, through the Employment Tribunals, that they intended to proceed with this case. It was only when we received your letter that we realised that the applicant was to go ahead with the hearing. They have not made available for inspection the documents upon which they intend to reply on at the hearing, nor did they inform us of their witnesses, or their statements. Therefore, we consider that we do not have enough time to prepare our case, also our witnesses may not be able to attend the hearing on 5 February 1999. We would be grateful if you could agree to an adjournment of the case on the above grounds."
Accompanying that letter were two witness statements, that is, statements from two persons upon whom, seemingly, the respondents relied with respect to their defence.[9]Turning then from this correspondence to paragraph 1 of the extended reasons, it is to be observed first, that there is absolutely no reference at all there or anywhere else in the extended reasons, to any issue as to adjournment. What is noted is:
"We had before us two witness statements produced by the Respondent. These were not referred to by the Respondent in submission and since the individuals were not present to give evidence the Tribunal placed no reliance upon them as they could not be cross-examined."
[10]This morning it is submitted to us that there is here a point of law that merits an inter partes hearing, namely, as to whether the conduct of the hearing below met the requirements of natural justice, in as much as, the matter proceeded without an adjournment and further, it proceeded without any weight or consideration being given to the statements of these two witnesses.[11]We are driven to say that the point as raised, in our judgment, does merit inter partes hearing. It is a matter of some concern, that notwithstanding this correspondence and notwithstanding the fact that the respondents were not legally represented, there was no early enquiry into the question of adjournment and no early enquiry, on the face of it, as to the status of these statements and no apparent intimation as to how they should be used, if at all, in the conduct of the respondent's case. It may well be that there are answers to this, but for the moment all we are concerned with is whether questions are raised which demand an inter partes hearing.[12]Our function this morning is no more than that. Given that we have identified that point, then we are left to adjourn this matter so that there can be a further hearing with parties represented. We appreciate that through courtesy to this tribunal, Mr Landolt has attended this morning, but it would not be right for the matter to proceed now, however tempting that might be, given that he has had no opportunity to think about the matter or to formulate submission about it.[13]Yet further and just as importantly, we think it right that in the period that must now elapse before the inter partes hearing to invite assistance from the Chairman of the Employment Tribunal as to her recollection as to any issues arising as to adjournment and as to the use of those two statements, so that if she has any observations, they may be before this tribunal.[14]Thus it is that this matter goes forward. The directions that we give is that this is Category C. It should be listed for two hours. There will be enquiry of the Chairman and finally, skeleton arguments should be exchanged between the parties and submitted to this tribunal at least seven days before the full appeal hearing.