X v Y & OTHERS [2000] UKEAT 296_00_1703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 296_00_1703Case No Appeal No. EAT/296/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
XAPPELLANTY & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Mr J R Crosby Mr R SandersonDate 17 March 2000
[1]APPEARANCES For the Appellant MR S GORTON (of Counsel) Messrs Weightmans Solicitors 41 Spring Gardens Manchester M2 2BG For the First Respondent For the Second Respondents MS R CRASNOW (of Counsel) Messrs Irwin Mitchell Solicitors 48-50 St John's Street London EC1M 4DS THE SECOND RESPONDENTS NEITHER BEING PRESENT NOR REPRSENTED JUDGE PETER CLARK : We shall make a Restricted Reporting Order in this case. The applicant before the Manchester Employment Tribunal, X, commenced employment with Y in May 1995. She was later promoted to a managerial position.[2]She began these proceedings, complaining of unlawful sex discrimination by Y and a number of named individual male employees, by an Originating Application presented on 22nd May 1999. In detailed particulars of her complaint she paints a picture which, if true, reveals an horrific catalogue of systematic sexual harassment by fellow employees during her employment, compounded by weak and ineffectual local management.[3]The claim is resisted, the individual respondents denying her allegations of harassment, the employer seeking to rely, among other things, on the statutory defence afforded by s.41(3) of the Sex Discrimination Act 1975 .[4]It is a sizeable case which has been managed by one Chairman, Mr Leahy. He has already held three directions hearings on 1st November 1999, and 2nd February and 3rd March 2000.[5]On the first occasion, the Chairman was told by the solicitor appearing for Y that a detailed investigation of the applicant's complaint was being carried out and a report was expected within a week, whereafter the employer would take a decision as to whether disciplinary proceedings would be instituted against any employee arising out of these allegations. That report, by Y's Equal Opportunities Manager, was in due course produced and is dated 18th November 1999. We have had sight of it.[6]The Chairman took the view that at that stage that it would not be appropriate to delay the progress of this case pending any internal proceedings against the named respondents or any other employees. His reasons for so concluding, set out in a written minute were these:
"(a) I do not believe that it serves the interests of justice for this case to be delayed. The applicant has been off work as a result, she alleges, of the treatment she received, since March 1999 and there is no prospect, even with my timetable, that the case will be heard before April 2000. (b) There are no expected criminal or other civil proceedings arising from this case. This judicial process is more important than that subsidiary disciplinary hearings against the respondents. (c) I believe that the appropriate and proper course is for these proceedings to continue and for [ Y ] to take its decisions with regard to any disciplinary processes in the context of this case proceeding."
[7]Having dealt with other interlocutory matters he directed that the substantive hearing would take place during the whole of April 2000, based on a time estimate from the parties of about 20 days.[8]No reference is made to the hearing date in his minute following the second directions hearing held on 2nd February. A final directions hearing was ordered for 3rd March.[9]On 1st March Y's solicitor wrote to the tribunal asking for a postponement of the hearing fixed to begin on 3rd April. The basis of the application was that the disciplinary investigation was still in train; 15 people were working on it full time; the process should be completed by June 2000. A short postponement of these proceedings would allow further information to be gathered; prevent the internal investigation coming to a halt and also help to allay the fears of witnesses who had provided information anonymously to the employer. There has been some evidence of intimidation of the applicant and others involved in this matter.[10]Mr Leahy considered that application, which was vigorously opposed by the applicant's representative, at the directions hearing held on 3rd March. He rejected it. His reasons for doing so are set out in a minute of that meeting and in extended reasons bearing today's date.[11]Against that refusal to postpone the substantive hearing Y now appeals. Mr Gorton, in prosecuting the appeal before us, acknowledges that he faces a high hurdle. We have been reminded of the test laid down by Arnold J in Bastick v James [1979] ICR 778 , 782B-C and approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908 , at 918.[12]Nevertheless, he submits that this is an exceptional case in which it can properly be said that the Chairman's decision not to order a postponement is perverse. He sets out four grounds in support of that submission at paragraph 13 of the Notice of Appeal.[13]We have considered those grounds, the oral submissions of Mr Gorton and Ms Crasnow on behalf of the applicant and the Chairman's reasons. The remaining respondents have played no active part in this appeal.[14]In our judgment the appellant has not begun to make out a case of perversity. The Chairman has balanced the interests of all parties and reached an unimpeachable conclusion that the interests of justice require that this case is heard as soon as practicable, all parties being ready to proceed subject only to the question of the internal investigation raised by the employer. In these circumstances we shall dismiss this appeal. JUDGE PETER CLARK : Following delivery of our judgment in this case, Ms Crasnow applies on behalf of the applicant for the costs in this appeal limited to £500. She submits that in accordance with Rule 34(1) of the EAT Rules the appellant's conduct in bringing this appeal was unreasonable and that accordingly an order should be made. We have no hesitation in upholding that application. This was a hopeless appeal and the appellant should pay the sum of £500 costs to the applicant. There is no costs order in respect of the remaining respondents below.