LONDON BOROUGH OF CROYDON MR G DAVIES MP COUNCILLOR MARY WALKER COUNCILLOR VALERIE SHAWCROSS v MR S KUTTAPPAN [2000] UKEAT 173_00_2103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 173_00_2103Case No Appeal No. EAT/173/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF CROYDON MR G DAVIES MP COUNCILLOR MARY WALKER COUNCILLOR VALERIE SHAWCROSSAPPELLANTMR S KUTTAPPANRESPONDENT
Before
His Honour Judge CollinsLord Davies of CoityDate 21 March 2000
[1]APPEARANCES For the Appellants MR A LYNCH (of Counsel) Messrs Donne Mileham & Haddock Solicitors 100 Queens Road Brighton East Sussex BN1 3YB For the Respondent Present and In Person JUDGE COLLINS: An employment tribunal sitting in Croydon is seised part heard of an application by Mr Kuttappan, the respondent to this appeal, in which he claims that he was a victim of racial discrimination or victimisation under the Race Relations Act 1976, in connection with the advertisement of the position of Chief Executive with the London Borough of Croydon.[2]On 2 December 1998 this appeal tribunal dismissed Croydon's appeal against the refusal of the tribunal to strike out Mr Kuttappan's claim on the grounds that it was frivolous and vexatious. In the concluding observations of his judgment, Morison J., made it plain that it was not Mr Kuttappan's case that he would have been appointed if he had been given the opportunity to apply for the post. What he is complaining about is he was deprived of the opportunity of having his application considered.[3]The case was adjourned part heard until 27 September 1999. We have been told that at that stage Mr Kuttapan had completed his evidence and the first witness for the local authority was in the course of giving his evidence. On 5 August 1999 Mr Kuttappan wrote a letter to the tribunal in which he said that he had correspondence with Councillors Shawcross, Walker and Davies who were the Chairs of the relevant committee that agreed to extend the contract and give a fresh term to the person who was in fact Chief Executive. He asked for witness orders against them.[4]For reasons of which we are not apprised, the tribunal did not respond to Mr Kuttappan's letter until 27 September, three days before the date of the hearing, when they issued witness summonses against all three of those witnesses. The hearing then had to be adjourned because the Chairman was ill. It is re-fixed for hearing from 3 April for 3 days.[5]The local authority became extremely agitated by the prospect that these persons who were all, as I understand it, former leaders of the Council and one of whom is now member of Parliament for Croydon, were required to give evidence. An unfortunate correspondence ensued between the local authority and the tribunal. One subject was that as drafted the witness orders contained an obscurity. They all start off in these words: 'On the application of the applicant a Chairman of the Tribunals of his own motion, orders you to attend' and a good deal of the local authority's endeavours were directed towards ascertaining whether the witness orders had been issued of the tribunal's own motion or whether they had been issued on the application of Mr Kuttappan. They never received an answer to that question even though they asked for it many times. That is a matter of regret and it seems to us that it was the obligation of the tribunal as these orders had been issued ex parte to give a clear answer to the reasonable question which the local authority asked.[7]As it turns out, we have now seen Mr Kuttappan's correspondence, which the local authority only saw yesterday. It shows that the orders were in fact issued on his application and we make the assumption that they were drawn up in error in the tribunal office. That is a matter which can be explored at a later hearing before the tribunal if necessary, in case we are wrong in making that assumption.[8]On 12 October the local authority's solicitors wrote to the tribunal saying that they were instructed on behalf of the witnesses and wanted an opportunity of being heard. Although that was not couched in technical language, I take it as an application under Rule 4(5) of the Employment Tribunals (Constitution etc) Regulations 1993, which provides that where a witness order has been made the witness in question may make an application to the employment tribunal to vary or set aside the order. The letter of 12 October asks for an interlocutory hearing. On 18 November the tribunal wrote saying that the hearing would take place on 6 January. On 9 December the tribunal wrote to the parties pointing out that the local authority had asked for the hearing to be before a full tribunal and saying: " I have referred the Respondent's request for a full Tribunal to a Chairman of the Tribunal who has decided to postpone the hearing date of 6 January 2000. Please accept this letter as formal notice that the hearing listed to take place on 6 January 2000 is vacated.The Chairman has directed that written submissions should be sent to this office before 24 December 1999 regarding the matter of witness orders".[9]The local authority decided not to make those written submissions on behalf of the witnesses but to repeat their request for information as to whether the original witness orders were made by the tribunal of their own motion. They never got a reply to that request and they never made their written submission within the time provided. In those circumstances the tribunal wrote on the 21 December saying:
"In the absence of any submissions in the time provided, this matter has again been put to a Chairman who has directed that any further submissions to the witness orders on the 27 September 1999 should be made on the first day of the hearing."
That is 3 April.[10]On 21 December, the local authority's solicitors wrote asking for an earlier hearing. On 5 January the tribunal wrote saying:
"The Order stands and the witnesses must be available as ordered. …….the Member of the original tribunal cannot make himself available on that date."
There was further correspondence asking for an earlier hearing to which their was no response. The position may be summarised as follows: the Chairman made witness orders ex parte; the witnesses asked for those orders to be set aside; they have asked for that application to be heard before a full employment tribunal, not before the Chairman alone; The tribunal has indicated that that application will be heard at the first day of the adjourned hearing on 3 April.[14]The local authority and the witnesses come to this tribunal on appeal. The Notice of Appeal describes itself as an appeal against first, the decision to issue the witness orders and second, the tribunal's refusal or failure to list the applications and third, the tribunal's refusal to give reasons for its decision to issue the witness orders and for its failure to list the applications for hearing.[15]I need to refer to the relevant Rules, which was set out in the schedule 1 to the 1993 Rules. Rule 4(2) provides that a tribunal may on the application of a party or of its own motion require the attendance of any person as a witness. I have already referred to subrule 5, which entitles a witness to apply to set the order aside. Rule 13(5) provides that where an application is made for a witness order the tribunal may before determining that application require the applicant to give notice to every other party specifying an address and time with which any written objections should be made.[16]Although it has not been mentioned during the course of the hearing I ought to refer to the decision of the National Industrial Relations Court in Dagger –v- Metal Box Company Ltd [1974] ICR 559, where Sir John Donaldson held that there are two matters about which an tribunal has to be satisfied before issuing a witness order. First, that the witness can prima facie give relevant evidence, and second, that it is necessary to issue the witness order. In the circumstances of this case it is plain that those conditions would have been met because the Chairman had already been hearing the case for some days and knew perfectly well whether the witnesses were capable of giving relevant evidence. Further, because they were witnesses who were Croydon councillors the Chairman would have been likely to assume that they would not have attended to give evidence for Mr Kuttappan without witness orders.[17]The tribunal was under no obligation to exercise its powers to order that the application for witness orders should be on notice. Nor does it seem to us that the decision to issue a witness order is one which in ordinary circumstances, when determined ex parte, requires the tribunal to give reasons for it. What is more relevant is that when an application is made to set aside the order the tribunal should deal with it expeditiously and judicially and give reasons for its decision. It would be an intolerable burden on tribunals if every time they had an application for a witness order, written reasons for their decision to make an order had to be given. Mr Lynch has not drawn our attention to any authority which suggests that a witness order should be accompanied by written reasons for the decision to grant it. The position might be different where an order is refused.[18]I ought to make some practical observations about the situation. First, it is likely to be of limited advantage to Mr Kuttappan to be able to call these witnesses. If he does so he is unlikely to be allowed to cross-examine them and their utility to him will be limited. It may well be that that is not a factor which is of very much concern to him and that he just wants to get the witnesses before the tribunal so that he can attempt to make a public display of them. Second, in his letter of 5 August Mr Kuttappan explains why the witnesses are capable of giving material evidence. Mr Lynch, who appears today for Croydon, does not have the conduct of the case before the tribunal and has told us frankly that he has no instructions as to whether the witnesses have committed themselves in writing either by way of a statement or in an affidavit to asserting that they have no material evidence to give. We found this very surprising because the original hearing of their applications was fixed for 6 January and was only aborted because the lay members could not be present. Months have now elapsed during the course of which one would have imagined that the witnesses would have prepared themselves for arguing for the setting aside of these witness orders because they are not capable of giving any material evidence. We are not drawing the inference from that that they are capable of giving material evidence, but by the same token we cannot possibly conclude that they are not in a position to do so, or for that matter that there is any practical difficulty which prevents them from attending the tribunal. This appeal which has occupied some time before us this morning has had something of the air of shadow boxing. The real contest as to whether the witnesses have material evidence to give will have to be fought elsewhere.[19]As to what the witnesses are asking us to do today, the first is to set aside the witness orders. It seems to us that the witness orders were made within the jurisdiction of the tribunal; it has not been suggested that the Chairman did not have power to make the orders herself. The Chairman knew what the case was about, having heard it for some days. It seems to us that the proposition that the tribunal made an error of law in issuing the witness orders in the first place is completely baseless.[20]The real complaint of the local authority is not a legal one at all, it is practical. It is that for reasons which have not been explained in the correspondence, the tribunal have been unable to constitute itself before 3 April to hear the applications. The witnesses have all got to turn up on 3 April even though it may turn out that after the argument they are allowed to go without giving evidence. We can quite see that from their point of view that is inconvenient and puts them in an unfortunate position. In an ideal world the tribunal should have been able to constitute itself at a date sufficiently far in advance of the adjourned hearing for the witnesses to know what their position was. If they were going to give evidence they could prepare themselves by looking at the contemporary correspondence and any minutes and so on, so that they would be capable of giving useful evidence. If they were not going to be required to give evidence, they could put their minds at rest.[21]We have no material before us today on which we could conclude that the tribunal was in a position to reconstitute itself before 3 April. Nor have we received or invited any argument on the question of whether this appeal was more properly the subject of an application for judicial review. We make the observation that it was obviously desirable that every effort should have been made to have this question determined before 3 April and the fact that it has not been possible is a matter of regret. However, if the alternative were to hear the application on 3 April but to adjourn the resumed hearing of the case until a later date, it seems to us that that would have been a greater evil.[22]In the event we take the view that there is no substance in this appeal. The local authority and the witnesses are frustrated and angry by the lack of the response which they have had from the tribunal. They may be justified, or they may not; we have not given the tribunal an opportunity to state its own position and it would not be right for us to criticise them when there may be a perfectly legitimate explanation for this matter not being heard before 3 April.[23]The complaints which are being made are not matters of law. They are complaints about the practice of the tribunal in organising its own listing which are not matters for us to interfere with. Although we have made our observations plain as to what we would have considered to be the most desirable course in the interest, not of the local authority, who we do not consider to have any effective locus standi in this matter, but of the witnesses who may find themselves extremely inconvenienced by having to attend the hearing when it proves unnecessary. We do not consider that there are any matters in respect of which this appeal tribunal is entitled to intervene. Accordingly we dismiss this appeal.