DR M RUBY v (1) BRITISH MEDICAL ASSOCIATON (2) SIR DONALD IRVINE (3) JOHN BIGGS [2000] UKEAT 459_00_1904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 459_00_1904Case No Appeal No. EAT/459/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR M RUBYAPPELLANT(1) BRITISH MEDICAL ASSOCIATON (2) SIR DONALD IRVINE (3) JOHN BIGGSRESPONDENT
Before
Mr Justice LindsayDate 19 April 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the First Respondent For the Second Respondent For the Third Respondent JOHN QUIGLEY (Solicitor) British Medical Association Legal Department BMA House Tavistock Square London WC1H 9JP THE SECOND RESPONDENT NEITHER PRESENT NOR REPRESENTED MARTIN ARKELL (Solicitor) Office of the Solicitor Department of Health and Social Security New Court 48 Carey Street London WC2A 2LS MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of an interlocutory appeal, the appeal of Dr M Ruby in the matter Ruby v British Medical Association . The matter comes up at very short notice in response to one sheet of paper which has been treated as a Notice of Appeal and is dated 16th April 2000. The background is as follows. Dr Ruby is locked in litigation at tribunals with the British Medical Association ['BMA'] as, so to speak, his trade union and also with a number of other people.[2]On 4th November 1999 Dr Ruby issued an IT1 that was given the number 1502213/99; it claims racial discrimination.[3]On 23rd November 1999 there was a hearing of a different IT1 issued earlier, the number of which ends 784/99.[4]On 30th November 1999 the decision in that earlier IT1 was given and it was against Dr Ruby.[5]On 7th January 2000 the BMA entered its grounds of resistance to the IT1 that Dr Ruby had launched on 4th November 1999. It took the point that the new IT1 in fact was complaining about matters which had already ruled upon; namely, the BMA were relying on the res judicata rule. In the light of that argument they asked that there should be a striking out of the IT1 of 4th November 1999 (no. 1502213/99).[6]At some date, which does not appear in the papers, a hearing was fixed for 20th April 2000, tomorrow, of the BMA's request for a striking out of that new IT1.[7]On 8th April 2000 Dr Ruby requested two things; a transfer of the new IT1 to some other tribunal and a postponement of the hearing of 20th April 2000 until after the EAT had ruled upon a complaint that he either had made or intended to make.[8]On 14th April 2000 the Chairman responded to both those applications quite briefly; he said:
"These have been referred to a Chairman of the Tribunals (Mr C Ash) who has directed that the request to have the case transferred is refused as there is no bias, obvious or otherwise. Furthermore, the postponement request is refused as no coherent grounds have been advanced."
[9]On 16th April there came in to the EAT the so-called Notice of Appeal, the one sheet of paper which has been treated as a Notice of Appeal. It makes an assertion that the matters needs to be transferred because the Tribunal which had heard the earlier complaint had, according to Dr Ruby, been abusive and obviously biased.[10]Dr Ruby does not attend today. The Respondent, the British Medical Association, has put in an answer to the Notice of Appeal.[11]It is quite plain that in relation to such procedural matters as whether an application should be transferred from one region to another or one tribunal to another or whether a fixed hearing should be adjourned, a tribunal has a very broad discretion. It is, of course, to be exercised judicially, but otherwise it is, in practical terms, unfettered.[12]Accordingly, in order to show error of law, which is all that we can be concerned with, there is a stern requirement upon the Appellant that he is to demonstrate that the discretion has been improperly exercised. He has to show that matters were taken into account which should not have been or that matters which should have been taken account have not been or that the decision is perverse in the sense that no reasonable Tribunal, properly addressing the matter and with the law duly in mind, could have concluded as the given Tribunal had. One can see that it is a difficult test.[13]Here we have no attendance from Dr Ruby to make any such case. We have no evidence that the Tribunal will be biased on 20th April 2000, which is tomorrow, or that the Tribunal in the past has been biased against him. We have no reason to believe that a fair hearing will not be capable of being afforded to both sides on 20th April. We have no reason either, because there is no evidence on the point, to regard the matter as requiring to be adjourned.[14]We have not needed to hear Mr Quigley, solicitor for the BMA, or anyone else on the matter, given that Dr Ruby has failed to attend. But, applying ourselves as best we can to the papers that are put in front of us, we are quite unable to discern any error of law in relation to the Chairman's letter, which we have read, and accordingly we do not make any order that tomorrow's hearing should be adjourned or that it should be transferred to some other tribunal or region.[15]The interlocutory appeal is dismissed.