MRS C K SHARMA v LONDON BOROUGH OF HACKNEY [2000] UKEAT 799_00_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 799_00_0707Case No Appeal No. EAT/799/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C K SHARMAAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge A WilkieDate 7 July 2000
[1]APPEARANCES For the Appellant MR P DRAYCOTT (Barrister) Fulham Legal Advice Centre 679a Fulham Road London SW6 5PZ For the Respondents MR J TAYLER (of Counsel) London Borough of Hackney Legal Services Department 183-187 Stoke Newington High Street London N16 0LH JUDGE WILKIE QC : This is an appeal by Chander Kanta Sharma against a decision of a Chairman of Employment Tribunals sitting at London (North) dated 30th June 2000, when the Chairman refused her request for a postponement of the substantive hearing of her claim against the London Borough of Hackney, scheduled to take place between 12th and 14th July 2000. The decision is recorded in a letter of that date which is in short form. Mr Tayler, Counsel for the respondent, took as one point in answer to the appeal that we should not entertain it because the decision was not in an extended form. Mr Draycott has pointed out to us provisions in the Rules which make it clear that there is no obligation upon an appellant to obtain extended reasons before launching an interlocutory appeal and that we do have the power to consider an appeal on the basis of summary decision. Of course the fact that it is a summary decision and not an extended decision means that it would be contrary to justice to seek to construe as if it were intended to be a comprehensive and extended statement of reasons.[2]The application due to be heard on 12th July is a claim of victimisation on grounds of race launched on 28th January 2000 by the appellant who has been advised throughout by the Fulham Legal Advice Centre.[3]A notice of hearing was sent to the parties on 4th April listing the case for hearing on 12th to 14th July. On 10th April the appellant's representatives wrote to the tribunal and asked for a directions hearing. On 17th April the tribunal replied asking the Advice Centre to indicate what directions they were seeking and whether it would be possible to agree directions with the respondents' representative.[4]We have been told that the Advice Centre did not respond to that letter inviting it to indicate what directions it was seeking until 12th June when suggested directions were sent under cover of a letter of that date. Those suggested directions were four in number. To an extent one of them was supervened by a wrangle about interrogatories but the other three were in standard form requesting discovery, agreement to a joint bundle and exchange of witness statements.[5]The London Borough of Hackney responded to this suggestion on 28th June indicating that they had no objection to exchanging a list of documents and discovery of documents within the next three days with exchange of witness statements by 5th July. This was in a letter of 28th June in which they were taking objection to an application for adjournment to which we will turn in a moment.[6]As far as discovery was concerned, on 11th May the tribunal made an order for discovery of the appellant's terms and conditions of employment to take place within 14 days. The appellant complained to the tribunal on 26th May that discovery had not taken place as ordered. The tribunal wrote to the respondents on 14th June and thereafter it supplied some, according to the appellant, outstanding documentation on 19th June.[7]The position today is that the respondent claims that it has complied with discovery in respect of that particular category of documents. The appellant doubts that this is so.[8]On 12th June the appellant's advisers wrote to the tribunal by way of an application for an order for interrogatories. That followed upon a process which began with a service of a race relations questionnaire on the respondent on 17th February. There followed assurances that answers were to follow or to be provided later on 18th April, a reminder on 25th April and again on 2nd June, following which, on 12th June, the questions in the questionnaire which had not been answered, were put in the form of interrogatories, and made the subject of an application of the 12th June.[9]The tribunal's response to that application was a letter dated 20th June to the respondent asking for their comments on the letter of 12th June within seven days otherwise an order would be made as requested.[10]On 28th June the respondent wrote to the Advice Centre enclosing a reply to the interrogatories which say said provided as much information as possible but taking issue with the level of detail required in the request as "excessive, inappropriate and amounting to a fishing expedition."[11]In the letter dealing with interrogatories they similarly made the offer in respect of exchange of documents and witness statements on or behalf 5th July, to which reference has already been made, they having responded in the same way to the tribunal on 28th June. Attached to that letter there are the partial replies to interrogatories.[12]The application for an adjournment essentially was on the basis that there were outstanding issues in relation to interrogatories and discovery. The suggestion was that one or other of the dates, 12th to 14th July, should be used for holding a directions hearing as the appellant's advisers did not feel that the matter was ready for trial.[13]In its decision letter, the Chairman of the Tribunals notes that she had considered carefully all that the appellant said and had balanced that against the desirability of bringing the case to a hearing without delay. She gave as reasons for refusing the request the fact that the case had been listed since 4th April and that, following the tribunal's letter of 17th April, they had an opportunity to renew the request for an interlocutory hearing. She went on to say that "the parties have had ample time to prepare and it is unreasonable to request a postponement for such a reason" i.e., the request that there be a directions hearing held on the date of the arranged tribunal hearing at this late stage. She recorded that the respondent had objected to the postponement.[14]That last point is correct. The respondent did object to the postponement, but it is right to say that in the letter of objection dated 28th June no mention was made of any particular prejudice that would be caused to the respondent by the case being postponed from its hearing dates of 12th to 14th July.[15]One of the matters that the Chairman had before her in considering the application was a letter from the Advice Centre dated 29th June which referred particularly to their two requests for a directions hearing, namely 10th April and again 12th June, drawing the tribunal's attention to the relevant authorities as the desirability of a directions hearing; drawing the tribunal's attention to the nature and extent of their resources or limitation to their resources; referring to matters which they had not yet received, in particular a copy of the respondent's redundancy procedure or relating to members of staff being held in a central pool following deletion of their posts as a result of a particular procedure; and drawing attention to certain continuing deficiencies in the information provided by way of interrogatories. Some of these, Mr Tayler accepts, are deficiencies which can be made up, some he does not accept are deficiencies in respect of interrogatories to which an answer is required, essentially because it is overly burdensome from his client's point of view.[16]The appellant appeals against the Chairman's decision. The grounds of appeal are couched in terms which recognise the fact that an appellate body such as this tribunal dealing with an exercise by a first instance body of a discretionary decision in interlocutory matters, cannot simply substitute its own decision for that for the first instance body. We have been referred by Mr Tayler to the case of Noorani v Merseyside TEC Ltd [1999] IRLR 184 CA in which, paragraph 32 of the judgment of the Court, is couched, inter alia , in these terms:
"the EAT here was exercising the classic discretion of the trial judge in that case on the issue of witness summonses and like matters. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible."
[17]Recognising these limits the grounds of appeal firstly assert the decision was one which no reasonable tribunal could have reached in that it failed to have regard to, firstly, the failure to comply with discovery. As we have already said, the order for discovery was for a limited category of documents. There is disagreement as to whether it has been complied with, but the position is that the respondent says that it has complied with it at the very latest by 19th June. Secondly, the respondent has not provided answers to the majority of interrogatories requested, notwithstanding an indication that an order would be made, failing the proper response. There is no indication from the tribunal's decision that it failed to recognise the fact that there was an ongoing dispute about the response to the interrogatories. Thirdly, there is a paragraph which really sets out the history as far as the interrogatories were made and takes the matter no further. Fourthly, it is said that the tribunal ignored and failed to have regard to the principle established in Martins v Marks & Spencer [1998] IRLR 346 , that in most discrimination cases it would be good practice for a tribunal to hold a meeting for preliminary directions, in that the appellant's requests for a directions hearing of 10th April and 12th June were not acceded to and that no standard directions have been issued in relation to the proceedings. This is allied to another ground, namely, that in rejecting the application, the tribunal had regard to a matter that was improper to take into account, namely that the appellant had failed to renew her request for an interlocutory hearing after receiving the tribunal's letter of 17th April, when in fact she had made an application for a directions hearing in her letter of 12th June and enclosed a suggested list of directions.[18]It seems to us that there is no error of law or failure to have regard to matters to which she should have had regard, or the converse, evidenced by the particular decision letter. It is clear from the decision letter that the question of the desirability or otherwise of holdings a directions hearing was something which the Chairman of the tribunal had well in mind.[19]There had been a request for a directions hearing at the outset. The response of the tribunal had been to say "tell us what directions you would like and can it be agreed." No doubt for their own good reasons, the Advice Centre failed to address this particular request for almost two months, and only got round to asking for a directions hearing on 12th June.[20]Furthermore, in advance of the application for a postponement being held, the nature of the directions sought was known. They were of a very general nature and the respondent had already responded substantively to the effect that they were happy to comply with three of the four. One of them was still outstanding as far as interrogatories were concerned, but that was well known to the tribunal.[21]The fifth alleged failure on the part of the tribunal to have regard to relevant matters was to have regard to the principle established in Martins v Marks & Spencer , applicable to the complaint of victimisation.[22]It is perfectly plain that the tribunal had well in mind the nature of the application that was being made and, as we have already indicated, the question of appropriate procedure was one which was addressed by it.[23]It is said that the Chairman failed to have regard to the respective resources of the parties and the fact that Fulham Legal Advice Centre is a registered charity with a small number of staff and facilities.[24]It is by no means clear on what this allegation is based, because as we have indicated, the one thing that the Chairman of the tribunal was not short of was detailed written submissions from the Advice Centre, included within which was an explicit statement of the nature and limited nature of their resources in support of their application for an adjournment.[25]Finally, the Notice of Appeal asserts that in rejecting the appellant's application it failed to apply the principle established in Carter v Credit Change Ltd [1980] IRLR 361 , that the general desirability that tribunal proceedings should be disposed of simply and speedily should not be elevated into a general principle whereby special or unusual circumstances must be shown to justify a case being stood over. Allied to this is the fact that the respondent had not in its objection asserted any particular prejudice that would be caused to it by having the hearing postponed.[26]It is clear to us from paragraph 2 of the decision letter that the Chairman did have regard to the general desirability in the tribunal system seeking to hear claims expeditiously and to having fixed hearings adhered to, as that was specifically a matter which was balanced against everything that the Advice Centre had to say in support of the application for postponement. In so doing, it is our view that the Chairman of Tribunals did not err in law in taking that matter into account. Plainly it is a relevant matter, albeit it is not a matter which is specific to the individual parties, but is in the interest of all parties bringing such claims to have a properly ordered system of hearings. It is also plain to us from looking at the decision letter that this was not being elevated into a general principle. Rather it was a factor to be weighed in the balance against the factors put forward by either party. There is no suggestion in the decision letter that the respondent was putting forward any ground of prejudice and therefore the balancing act was exactly that which is referred to in paragraph 2 of the decision. We cannot see that this constitutes either an error of law or a basis for arguing that the decision was one to which no reasonable Chairman could have come.[27]Under each of these headings of the grounds of appeal, in effect, the appellant is now saying there are problems with having this case ready for 12th July. To some extent, some of these problems may be due to the respondent's slow response and incomplete response to her requests.[28]All of those were matters which were put before the Chairman. No doubt if the same matters had gone before different chairmen, or indeed the members of this tribunal, there may have been some who would have come to the opposite conclusion and struck the balance in favour of a postponement. That, however, is not a task which we are entitled to embark upon. Our powers of intervention are strictly limited. It seems to us, looking at this decision letter, that there is nothing in it which reveals that this Chairman has either erred in law, misdirected herself in law, taken into account irrelevant matters or failed to take into account relevant matters or come to a decision which no reasonable chairman could have come to properly directing herself. Therefore our conclusion is that we are unable to accede to this appeal to overturn what was the exercise of her discretion on the material that was before her and therefore this appeal must fail. Application for costs[29]Following an application by Mr Draycott, on behalf of the respondent, for costs, we do think that this was an appeal which did have some prospect of success, albeit it did not succeed and therefore we do not make any order for costs so far as this is concerned.