UNITED BANK LTD v MRS R MAHMOOD [1999] UKEAT 704_99_1406

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 704_99_1406

Case No Appeal No. EAT/704/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

UNITED BANK LTDAPPELLANT

MRS R MAHMOODRESPONDENT

Before

Mr Justice Morison

Date 14 June 1999

[1]APPEARANCES For the Appellants MS LOUISE CHUDLEIGH (of Counsel) Instructed By: Mr M Taylor Messrs Garretts (Solicitors) 180 Strand London WC2R 2NN For the Respondent MR DECLAN O'DEMPSEY (of Counsel) Instructed By: Ms C Aylott Messrs Lawford & Co (Solicitors) 102-104 Sheen Road Richmond Surrey TW9 1UF MR JUSTICE MORISON (PRESIDENT): This is an appeal against an interlocutory decision of an Employment Tribunal, namely their refusal to adjourn proceedings to enable the employers to call evidence which is currently unavailable to them. The application for an adjournment was refused in these circumstances. By a complaint dated 1 April 1999, the employee, Mrs Mahmood, presented a complaint against her employers, United Bank Ltd, that she had been unlawfully discriminated against on the grounds of her nationality and it would appear colour. She refers to the fact that she is of Pakistani origin, which is nationality, and she refers to the fact that a white secretary was of white European origin. The essence of her complaint is that she had been working for Mr Raza, the General Manager. When there was a change of General Manager, she went with Mr Raza temporarily to his new position, whereas the white secretary became the General Manager's secretary. Her complaint finishes with these words:

"In removing the Applicant from her position with no explanation and filling her position without advertising either internally or externally, the Respondent [the Employers] has unlawfully discriminated against the Applicant on racial grounds."

The employers put in their Notice of Appearance and included this paragraph:

"Prior to his leaving, Mr Raza advised Mr Wild [the new General Manager] that the Applicant was not a satisfactory General Manager's secretary and that he would need to recruit one. The Applicant remained as Mr Raza's secretary return until his return to Pakistan whereupon the Applicant became secretary to another senior manager at the Bank, Mr Lateef. Mr Wild did not have any say whatsoever in the transfer of the Applicant which was the decision of Mr Raza."

In those circumstances it was clear as it seems to as from the state of the formal documentation, that Mr Raza's evidence was crucial to the issue of why the Applicant was transferred from her position of Secretary to the General Manager when the General Managers changed.

[2]A Notice of Hearing was then sent out to the parties in standard form, and within the 14 day period indicated in paragraph 2 of that Notice, the solicitors acting on behalf of the employers wrote to the Employment Tribunal pointing out that the date allocated was not convenient, as Mr Raza was out of the jurisdiction. What they said was:

"Our client's key witness, Khawaja Raza, is no longer employed by our client and has also relocated to Pakistan. He has informed our client that he cannot visit the UK to attend the hearing on 18 June. He has told our client he will revert next week with a list of dates on which he is available to travel to the UK to attend a hearing."

Before waiting to see whether there was any information which Messrs Garretts on behalf of the employers might have in relation to Mr Raza's availability, the Tribunal responded on 3 June 1999, referring to the request for a postponement, saying in paragraph 2 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."

The letter then goes on; "The Chairman refuses your request for the following reason(s): The Tribunal hearing cannot be fixed on the as yet unspecified availability dates of a witness who has relocated in Pakistan. There is no certainty that the Tribunal will be able to fix the case to suit his availability. Moreover your opponent has objected to the postponement requested."

[3]That letter was sent on 3 June 1999, but before it was received, a further letter was sent from the employers giving further information as to the availability of Mr Raza. That letter said that: the evidence of Mr Raza was vital to their client's defence; he was the only person involved in making decisions regarding the Applicant's employment and no other person could give that evidence. They point out that the Applicant continues to work for the employers and therefore is not on the job market suffering from losses attributable to the employers' alleged misconduct. They provided further information to the effect that Mr Raza has indicated that he will be available in the second week of July, subject to obtaining permission from the Government of Pakistan to leave the country. With this in mind, the delay would not be excessive and the Tribunal was asked to review the original decision which it had made. The Tribunal responded, and it responded in these terms:

"1. I refer to your recent request for a postponement of the hearing in this case. [That is precisely the same words that appeared in the letter of 3 June.] 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. [That is precisely the language used in the first letter.] 3. The Chairman refuses your request for the following reasons: As stated in our letter dated 3 June."

The Tribunal do not indicate that the second week of July would have been unsatisfactory to the Tribunal in any way, that being, the potential date of Mr Raza's availability subject to permission from the Government of Pakistan. Nor do they deal at all with any of the points made in the letter of 4 June 1999 expressly, other than to use the expression which I have read, that the Tribunal has considered carefully all you say.

[4]The granting or refusal of an application for an adjournment is an important judicial step which must be taken by reference to judicial considerations. That includes, as it seems to us, the requirements of the Court to manage its own business efficiently and effectively.

[5]It is said on behalf of the employer Appellants, that this decision was perverse, that the employers should be given a fair opportunity to defend themselves against what is a very serious allegation and that this is a case where some leeway needs to be given to them to see if they can procure the evidence of Mr Raza. But at the moment they have not had a fair opportunity to do that and accordingly we should allow the appeal. On behalf of the employee, Mr O'Dempsey points out quite correctly that we should be slow to interfere with an Employment Tribunal decision of this sort. They have a wide discretion to determine whether adjournments should or should not be granted and we should be slow to interfere with them, and can only do so if we are satisfied they have reached a perverse conclusion.

[6]He points out that Mr Raza's availability is still in doubt. There is no guarantee that a date will be found which will be convenient to him, let alone that he will be willing at any stage to come to this country to give this important evidence. In those circumstances, he says, it can hardly be thought to be a perverse decision if the Employment Tribunal has suggested that the case should go ahead this coming Friday as it is currently scheduled for, there being no alternative date in the near future which would be convenient to everybody and would include Mr Raza's oral evidence.

[7]We are satisfied that the decision of the Employment Tribunal is perverse. It seems to us that the Employment Tribunal should, in principle, be prepared to give the parties a fair opportunity to bring and defend proceedings by the calling of vital evidence. In this case, we are quite satisfied that Mr Raza's evidence can be described properly as vital, the word used by solicitors on behalf of the Bank. They should be given a reasonable opportunity to make that evidence available to the Employment Tribunal. That does not mean that the Employment Tribunal must simply wait around to find out whether the Government of Pakistan is prepared to give permission and whether Mr Raza himself is going to be a willing witness. But it does seem to us that at the stage which they were being asked for an adjournment, it was quite unreasonable for the Employment Tribunal to have declined to grant the adjournment being requested.

[8]This is not a case where there is any evidence that the employers have been dallying unreasonably. As we read the correspondence, it is clear that Messrs Garretts had been attempting to find an early date which would enable the Bank to defend itself against this allegation. At this time therefore, it was quite wrong in our view for the Employment Tribunal to make the interlocutory decisions it did. We cannot emphasise enough that it is essential that decisions of this sort are taken by reference to the individual circumstances of each individual case. That, they appear to have failed to do, as it seems to us.

[9]Whilst we see the force of what Mr O'Dempsey was submitting to us and without in any way going beyond what is necessary for this decision, we are not prepared to accept that this decision fell within the ambit of reasonable responses to an application for an adjournment which was made. The case will have to take place as best as it can be organised in the reasonably near future. If the Bank are unable to produce the witness Mr Raza, when given a fair opportunity to try, then of course the case must proceed in his absence. Whether they produce his evidence in affidavit form, or otherwise, is entirely a matter for them, but at the present time they should be given a further chance to get Mr Raza's evidence to the Tribunal since it is crucial as the case stands pleaded at the present time. The appeal will therefore be allowed and the order made that this hearing do not take place on 18 June 1999.