MRS J M L BURNS v THE ROYAL COLLEGE OF NURSING [2000] UKEAT 78_00_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 78_00_3101Case No Appeal No. EAT/78/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J M L BURNSAPPELLANTTHE ROYAL COLLEGE OF NURSINGRESPONDENT
Before
Mr Justice Charles Mr L D CowanLord Gladwin of CleeDate 31 January 2000
[1]APPEARANCES For the Appellant MR R BURNS (Husband) For the Respondent MISS L FINDLAY (Legal Officer) Royal College of Nursing Legal Services Department 67-69 Harborne Court Edgbaston Birmingham B15 3BU MR JUSTICE CHARLES : We have before us an appeal from an interlocutory decision of an Employment Tribunal. The parties are a Mrs Burns who is the Applicant in the proceedings and the Appellant before us and the Royal College of Nursing. The appeal is against a decision of a Chairman of an Employment Tribunal refusing to adjourn the hearing of the application, which is set down for hearing from 8th to 11th February 2000. These dates were set at a directions hearing which took place on 9th November 1999. The Employment Tribunal received the Originating Application on 28th August 1999. The complaints are ones of race discrimination and victimisation. The Applicant, Mrs Burns is of Chinese ethnic origin. It is accepted by the Respondent that she was accredited as a RCN Steward at the Moorfields Eye Hospital in 1994. As we understand it she has acted in that capacity since that time.[2]The IT 1 contains particulars of the complaint and we have been told today by Mr Burns, who is representing his wife, that those grounds were prepared with the assistance of the CRE who prepared them having regard to the answers given by Mrs Burns to a detailed questionnaire they provided to her. There is also a full answer from the Royal College of Nursing and a comparison of those two documents show that there are a number of disputes of fact between the two sides.[3]The allegations made are serious ones and we can well understand why they are taken seriously by the employees of the Royal College of Nursing against whom they are made and the Royal College of Nursing itself.[4]A letter dated 24th November 1999 records what was agreed or ordered at the directions hearing held on 9th November 1999. The most relevant paragraphs are:
"3 Both parties agree and the Chairman has directed accordingly that the hearing in the case is to be completed within four days. The hearing has been listed for 10.00 a.m. on 8, 9, 10 and 11 February 2000 at Stratford before a full Tribunal. Save in exceptional circumstances, no postponement of the hearing of the case will be granted. The parties should decide how to divide the available time between them so as to complete the case in the allotted time. 4. The principal issues remaining between the parties and requiring determination by the Tribunal are whether the Respondents have victimised the Applicant in deliberately failing to supply the Applicant with advice and legal representation in internal grievance proceedings, brought by her because of her activities as a trade union official in support of ethnic minority members of The Royal College of Nursing, culminating in a letter which she wrote on 15 December 1997. It is also an issue whether the Respondents failed to provide her with advice and legal representation in Case Number 6001063/99 which she commenced in the Employment Tribunal at Woburn Place against Moorfield Eye Hospital, because she had commenced those proceedings against Moorfield Eye Hospital. Those proceedings have been compromised and no longer exist. It is also an issue whether the Respondents have discriminated against the Applicant under Section 11(3)(a) of the Race Relations Act. There has been some disclosure of documents in this case already. I direct that the Applicant shall particularise those documents which she complains have not been already disclosed or provided pursuant to her request for discovery dated 14 October 1999. She should set out what she still seeks and she should set out the reasons why she says these documents are relevant. 10 It is the usual practice in the Region for the evidence of witnesses to be given by reference to prepared statements. This applies also to the evidence of the parties. Accordingly you should bring to the hearing typed (or legibly written) statements of those witnesses intended to be called, with sufficient copies for the members of the Tribunal and for the witness. I direct that the parties shall exchange statements by 11 January 2000. The parties may then exchange further statements by 25 January 2000 such further statements to be restricted to dealing with matters which arise from the other parties first statements."
The Employment Tribunal sent a Notice of Hearing dated 26th November 1999 to the parties.[5]It follows from the above that from 9th November 1999 the hearing dates were set.[6]It is also common ground between the parties that at the hearing, which took place on 9th November 1999 the Chairman who dealt with that hearing indicated to Mr and Mrs Burns that Mrs Burns should seek legal representation.[7]We were told today that on 2nd December 1999 the CRE indicated to Mr Burns that they would not be able to represent his wife. Thereafter, however, Mr Burns told us that representatives of the CRE took steps to assist him in obtaining legal representation for the purposes of the hearing. So far as we are aware none of these efforts were communicated to the Royal College of Nursing and it was not until January 2000 that they, having telephoned the CRE, discovered that the CRE were no longer representing Mrs Burns.[8]The application for an adjournment is by an undated letter signed by Mrs Burns, but it is apparent from the decision letter that this letter was written in January 2000. The letter is in the following terms:
"I wish to apply for 14 day extension to exchange of witness statements from 11th January 2000 to 25th January 2000. I have secured a Barrister, Mr William Panton, on a conditional fee basis, but not as yet a solicitor, and I am unclear as how to proceed. I have an interview with a firm of solicitors who have expressed an interest in my case on Wednesday 13th January 2000 and I anticipate that they will take my case. I also wish to request a postponement of the hearing as my Barrister is not available on those days."
[9]The decision letter which is the subject of the appeal is dated 10th January 2000 and is in these terms:
"1. I refer to your recent request for a postponement of the hearing of this case. 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 reasons(s): The date of hearing was agreed before it was fixed. In that situation a postponement is not normally granted save in exceptional and unforeseen circumstances. The circumstances in this case are neither. It is not normally the practice of these Tribunals to postpone hearings because a particular representative is unavailable to attend. Moreover your opponent has objected to the postponement requested stating dates were agreed at the Interlocutory Hearing and that counsel has been booked. The Chairman has also directed that potential representation does not affect the need to comply with directions given."
The last paragraph of that letter, as we understand it, refers to the direction as to the service of witness statements.[10]The jurisdiction of this tribunal is limited to errors of law. In that respect, we referred by Mr Burns to a decision of this tribunal in Yearwood v Royal Mail & others (EAT/843/97 – Unreported) which is a case in which this Tribunal allowed an appeal against a refusal of an adjournment. A brief look at the facts of that case demonstrates that it is very different to this one and involved a party being, in effect, caught in two courts.[11]We therefore ask ourselves what error of law has this Chairman made if any. It is submitted to us on behalf of the Royal College of Nursing, who also refer to Bastick v James Lane Ltd [1979] ICR 778 that the letter from the Chairman shows that he made no error of law.[12]We agree. The letter shows that the Chairman balanced the needs of justice and fairness in having a hearing of this matter on the dates fixed having regard to the allegations made in and the history and timetable of this case against the desirability seen through the eyes of the Applicant of her having legal representation.[13]A point was made to us by Mr Burns that a different Chairman dealt with the adjournment and therefore was not aware of the expressions of opinion by the Chairman who dealt with the Directions Hearing as to the desirability of Mrs Burns being legally represented. We accept that it was a different Chairman and he would not have been privy to those expressions of opinion, partly of course because they are not raised in the letter seeking an adjournment, but nonetheless, it seems to us clear from the decision letter of the Chairman that he had in mind the desirability, looked at through Mrs Burns' eyes of her being legally represented.[14]Also, in our judgment, in the circumstances the Chairman would inevitably also have had in mind the fact that tribunal hearings regularly occur without one of the parties being represented and it is indeed part of the system that parties often are not represented. In this case Mrs Burns through her experience and training, albeit that she is of Chinese ethnic origin and someone who has some difficulty with English, is better placed than a number of applicants before tribunals who represent themselves.[15]Turning briefly to the written grounds of appeal. These are contained in a letter received by the EAT on 19th January 2000, essentially in paragraphs 2 to 5 thereof. I have covered the points in paragraph 2 which relate to the desirability as seen through Mrs Burns' eyes of her being legally represented.[16]Paragraph 3 raises the issue of costs. At to that, the power of an Employment Tribunal in awarding costs is very limited and in round terms costs could only be awarded if Mrs Burns was found to have acted unreasonably or vexatiously and therefore in our judgment that is not a factor which has any weight.[17]Paragraph 4 deals with Mrs Burns' ethnic origin and difficulty with English, particularly when under pressure and in picking up nuances. We are confident that that is a point that an Employment Tribunal hearing this case would remember and deal with. We are also confident that Mr Burns is more that capable of reminding them of the point should it be necessary.[18]The final point deals with witness statements. We confess that we have had considerable difficulty in understanding and following the point made by Mr Burns as to the difficulty of preparing a witness statement. We of course understand that he and his wife do not have legal experience and therefore may not have been aware exactly what a witness statement entails. However, it is plain that they are both intelligent people who have already answered a long questionnaire from the CRE and, in our judgment, the Chairman of the Tribunal was plainly correct to point out that lack of representation did not excuse non-compliance with the directions as to witness statements.[19]During the course of today's hearing we made enquiries of the parties as to Mr Panton's availability. That availability had not been notified to the Employment Tribunal or to the Royal College of Nursing before today. We adjourned to give Mr Burns the opportunity of obtaining Mr Panton's availability and, over a prolonged lunchtime adjournment, he was able to obtain dates when Mr Panton would be available. Some dates were available in February, some in March, some in April, some in May and then the whole of June was available. Counsel for the Royal College of Nursing would have been available on the dates in April but the position was that the Tribunal did not have available dates until the end of May. In those circumstances the Royal College of Nursing were not prepared to agree an adjournment which would be one for about five months. Having regard to the timing of the allegations made by Mrs Burns and their seriousness we for our part can understand why the Royal College of Nursing took that view. As we have said, the allegations are serious and they should be dealt with as soon as possible. Given the fact that the hearing was fixed in November 1999 and having regard to this extra information as to dates (which was not available to the Employment Tribunal because it was not provided to the Employment Tribunal) in our judgment a consideration of the respective balance of hardship to the parties in all the circumstances of this case leads to the conclusion that the balance comes down firmly in favour of the hearing proceeding in February when the issues of fact can be resolved.[20]For all those reasons, this appeal is dismissed.