Christou v. Morpheus & Anor [1999] UKEAT 498_99_2704

EAT
Christou v. Morpheus & Anor
[1999] UKEAT 498_99_2704 · 1999-04-27
MR JUSTICE LINDSAY : We have before us an interlocutory appeal of a procedural character mounted on behalf of Mr Christopher Phanos Christou. We are very grateful to Mr Symonds of the FRU for the assistance that he has given us. The respondents do not appear.Mr Christou has a case before the Employment Tribunal that is at the moment relisted for hearing on Wednesday, 5th May, Thursday, 6th May and Friday, 7th May 1999. That relisting was fixed on 2nd March 1999.The representative acting generally on behalf of Mr Christou, a Mr Draycott of Fulham Legal Advice Centre ["FLAC"], having learned of that relisting on 2nd March, moved promptly and on 5th March asked for a further relisting because that representative, Mr Draycott, could not manage Thursday, 6th May. Twenty days later the tribunal refused a further relisting; that occurred by its letter of 25th March. The following Wednesday, 31st March, FLAC gave further and better reasons for a relisting. On 6th April that was refused by the Chairman. On 16th April Mr Christou lodged a Notice of Appeal against the refusal of 6th April. On 17th April the respondents, in correspondence, indicated they would resist a relisting, but they have not attended today. We have no information that suggests that they do not know of today's hearing. If nothing is done in relation to the application made to us today, then the case will come on 5th May, which is next Wednesday.That is an over-simplified background. We need now to look at it in rather more detail.On 30th July 1998 Mr Christou lodged a relatively complicated IT1 form of complaint, listing five different types of claim: sex discrimination, constructive dismissal, breach of contract, unlawful deduction of wages and the failure of the employer to have supplied written terms and conditions of employment. A little later, on 8th September, FLAC entered the scene as Mr Christou's representative. FLAC is a company limited by guarantee; it is a registered charity and the individual who then and thereafter dealt and still deals with the matter at FLAC is Mr Draycott. He is a part-time post graduate student. We are told by Mr Symonds there is no solicitor at the centre; it cannot instruct Counsel. Mr Draycott, as a post graduate student, attends his college on Thursdays. Since FLAC entered the scene the case has undoubtedly become more complex. A sex discrimination questionnaire was served; victimisation has been added as a further complaint - a complaint under s. 4 of the Sex Discrimination Act 1975 ; it has also been claimed, by way of a further claim, that Mr Christou's dismissal was on account of his having asserted a statutory right. Discovery, which is not habitual or even usual in these cases, has been requested. Further and better particulars have been both requested and given on more than one occasion. Even information analogous to interrogatories has been sought. It is hard to resist a suspicion that what could and should have been a relatively straightforward case has become a vehicle for a rather legalistic approach. But that suspicion has to be regarded as unworthy because, as far as we can see, at any rate as yet, there has been no ruling by the tribunal that particulars requested were quite unnecessary and should be refused or that discovery sought was quite unnecessary or anything along those lines. On the contrary, the respondents, broadly speaking, have supplied whatever has been asked of them and the tribunal has not had to criticise the conduct of either side as being unnecessary.On 11th December 1999 there was a directions hearing. Mr Draycott, in writing, requested that the hearing of the case should be fixed for hearing between 20th March and 25th April; alternatively, he specifically requested that a Thursday should be avoided, because that was the day on which he attended lectures as part of his part-time graduate studies. He anticipated the hearing would take three days and that, accordingly, in effect, meant that either there should be a Monday, Tuesday and Wednesday hearing or possibly a Friday, Monday and Tuesday hearing, if, at all events, consecutive hearing dates were to be awarded. That directions hearing did take place on 11th December. The directions hearing ordered the hearing to be on 1st, 2nd and 3rd March - that is a Monday, Tuesday, and Wednesday - and so it seemed as if the Employment Tribunal had taken notice of Mr Draycott's difficulties on Thursdays. I should add (as Mr Symonds told us this morning, although it does not appear in our papers) there had much earlier been a listing of a one day case for hearing in October 1998 but that had long since been overtaken as the case developed. But all was set fair, as it seemed, for a hearing on 1st, 2nd and 3rd March 1999.The tribunal on 5th January 1999 confirmed in writing the dates 1st, 2nd and 3rd March 1999 to the parties and added that if any questions needed to be raised as to the matters that had been ruled upon at the directions hearing then they should be raised as soon as possible. Neither side, as far as we can see, raised any questions as to the hearing dates. Of course, Mr Christou's representative had no reason to challenge the dates which fitted in with his plan.On 19th January 1999 the Employment Tribunal sent out a form "Notice of Hearing" that specified the hearing dates as Monday, 1st March to Wednesday, 3rd March for three days and adding, as is habitual on the printed form:
"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."
So the case was still heading, therefore, for a hearing at which Mr Christou would be represented by the adviser who had all along acted for him. That is plainly a desirable prospect as that adviser was thoroughly au fait with the case and his conduct had not attracted criticism from the tribunal, so far as we can see.On 22nd February 1999 the tribunal wrote to both FLAC and to the respondents' advisers that:
"A Chairman has granted the Respondent's request for a postponement of the hearing listed to take place on 1, 2 & 3 March 1999.

A fresh notice of hearing will be sent in due course."

On what ground the respondents had sought a postponement is not disclosed in that letter. Whether the request had been made outside the 14 day period from 19th January 1999 is also not disclosed in the letter. There was no warning that there was any intention to abandon the earlier plan of a three day hearing which avoided a Thursday. Whether Mr Christou's adviser had had any opportunity to oppose an adjournment or, at any rate, to seek that it should be on terms that Thursdays should be kept free, is not clear. Mr Symonds tells us, although it does not appear from our papers, that the respondents had encountered some difficulty with a witness who had eye trouble. At all events, that postponement took place at the respondents' request and to meet, as it would seem, their convenience.On 2nd March 1999 a fresh Notice of Hearing was sent out by the Employment Tribunal now specifying "Wednesday, 5 May to Friday, 7 May 1999". Again there was the warning about "wholly exceptional circumstances" and so on in relation to postponement. The new dates now proposed were outside the bracket - 20th March to 25th April - which Mr Christou's representative had originally asked for and now, of course, included a Thursday.With virtually no delay FLAC wrote to the Employment Tribunal and said this:
"Further to receiving the Tribunal's recent notice of hearing, we would be grateful if this case could be relisted as our representative is unable to attend on Thursday 6 May 1999.
Apart from working part time for the Legal Advice Centre, our representative is also a post graduate student with the University of London. As almost all of his weekly lectures take place every Thursday, we would be grateful if the case could be rescheduled for a Monday, Tuesday and Wednesday listing. We would ask the Tribunal to treat this communication as akin to a court appearance, and hope that this application can be treated sympathetically.At present, our representative has no other dates on which he will be unavailable, other than 5-7 and 12-13 July 1999."Twenty days then elapsed until the Employment Tribunal answered on 25th March 1999. They said this at paragraph 2:
"2. 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.
3. The Chairman refuses your request for the following reason:It is not normally the practice of these Tribunals to postpone hearings because a particular representative is unable to attend. The Chairman expects the representative to ensure that alternative representation is arranged."On 31st March 1999 Mr Draycott wrote on the FLAC paper to the Employment Tribunal and he gave important new information. He said:
"We recognise that it is the Tribunal's practice not to 'postpone hearing because a particular representative is unable to attend' and that it usually expects 'alternative representation' to be re-arranged. However, we feel that whilst such expectations are valid regarding counsel and solicitors, we do not feel that such a solution is applicable to those working in advice centres. As tribunal representative, I am the only member of staff available at the Fulham Legal Advice Centre, who would be able to represent the Applicant in this matter. The other members of staff are social security advisers and have no knowledge of employment law. Thus if the Tribunal insists on retaining the current listing for this case, it will either mean that our client will be forced to represent himself, or this case will need to be referred to another organisation.
We feel that both of these options are inappropriate. Firstly, we would remind the Tribunal that this is a complicated case involving allegations of unfair dismissal on the grounds of asserting a statutory right, unlawful deductions of wages, wrongful dismissal, victimisation and direct sex discrimination. As a result, we do not feel that it is appropriate to expect the Applicant to attempt to represent himself. Secondly, whilst it is possible that this case could be referred to the Free Representation Unit or the Bar Pro Bono Unit, we would seriously question whether it would be likely to find a representative given that it is currently listed for three days, which would act as a major discouragement for most advocates."It has not been suggested that any of the points that were made in that letter of 31st March 1999 was untrue. That occasioned the answer of 6th April which is the matter that is appealed from, and that says:
"2. 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.
3.

(s) :

It is still refused. The rep is available Tuesday and Wednesday and will have to attend Thursday if the case runs into a Thursday."In our view, that is a flawed exercise of the discretion which the Employment Tribunal had had conferred upon it. Firstly, it takes into account a matter which should not have been taken into account and secondly it fails to deal with matters which should have been taken account. Thus it cannot be a reason for refusing a request that "it is still refused". If by that it is meant that there had been an earlier request that had been refused, that fails to take into account that the letter of 31st March was a fresh request, based on new material grounds explained in the letter which the tribunal had not had previously laid before it, making the point, in effect, that if Mr Draycott was disabled from attending because of the hearing of being on the Thursday then Mr Christou would be left, in all likelihood, with no representation at all, and that that would be undesirable. To rely on there having been another request refused earlier was inadequate unless added to it was some answer to the new ground that was advanced in the letter of 31st March, and there was no hint in the letter of 6th April that that new ground had, indeed, been taken into account. Moreover, to say that Mr Christou's "rep" was available on the Tuesday was wholly irrelevant to a three day case listed to begin on the Wednesday. Next, to say that the representative would "have to attend Thursday" paid no regard to the difficulty which had all along been specified to the Employment Tribunal that this particular representative could not manage any Thursdays. It seems not to have paid any attention to the fact that this was not a full-time professional representative or a person from a body to whom arrangement of an alternative representative might be thought to be easy but was a part-time post graduate student in a very small organisation. Indeed, the circumstances were that if that voluntary assistance was not given to Mr Christou, as we said, the likelihood would be that he would have no assistance at all and it has to be borne in mind that this was a relatively complicated case in which assistance would be very much desirable.Bearing those factors in mind, we see this, as we have mentioned, as a flawed discretion exercise, and accordingly, we set it aside. The error of law is, as we have mentioned, that it took into account matters that it should not have taken into account and failed to deal with matters which it should have taken into account.If we set it aside then with what do we replace it? It would seem that the tribunal took the view that the case might be over in two days. It will be remembered that the concluding words of the letter of 6th April were " if the case runs into a Thursday". We leave the hearing to begin on 5th May, the Wednesday. We leave the Friday, 7th May, also as a day for its hearing. As to Thursday, 6th May, we say this: the 6th May is to be vacated as a hearing date for this matter unless by 5 p.m. on Thursday, 29th April 1999 Mr Christou or his representative shall have indicated in writing, either by letter or by fax, to both the respondents' advisers and the Employment Tribunal that Mr Christou can be represented on 6th May 1999 after all. If that indication is given, then Thursday 6th May can remain as a hearing date. If that indication is not given by that time, 5 p.m. on Thursday, 29th April 1999, then Thursday, 6th May 1999 will be vacated. We do see that there is a distinction to be drawn by Employment Tribunals in their proper approach to a truly professional representative on the one hand and representation by means of such a body as FLAC on the other. We do see here that it is valuable both to the tribunal and to the administration of justice generally that Mr Christou should be represented at whatever hearing takes place. If the Thursday is not used it might be that the case will be capable of being concluded in the two days, concluding on Friday, 7th May 1999. If it does, that, of course, is no later than had been anticipated in the original listing arrangements. Equally, if adequate representation for Mr Christou can be arranged (either by Mr Draycott, despite his difficulties, or, for example, by the FRU) well then, again there will be no delay. There is, of course, a risk that more than two days will be needed but if both sides put their minds to it with a view to avoiding an unconsecutive hearing then it might be that two days will suffice after all. There is, of course, a risk that the Employment Tribunal will not be able usefully to deploy themselves on Thursday, 6th May if it not used as a hearing date for this case but no solution here is completely free of inconvenience and we regard the solution we have described as the least inconvenient and the least unjust. The case will thus begin on Wednesday, 5th May; the hearing on Friday, 7th May is to be kept as the second day of the hearing, Thursday, 6th May is vacated as a hearing date for the case unless the Employment Tribunal and the respondents have been told by 5 p.m. on 29th April that Mr Christou can be adequately represented on that Thursday after all, in which case that Thursday will become the second day of the hearing with the Friday available, if needed, as the third. We allow the appeal and make the directions that we have indicated.