CAMDON GROUP LTD v MISS ADRIENNE LAMB [2001] UKEAT 0396_00_2604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0396_00_2604Case No Appeal No. EAT/0396/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CAMDON GROUP LTDAPPELLANTMISS ADRIENNE LAMBRESPONDENT
Before
Her Honour Judge A Wakefield Mr J R CrosbySir Gavin LairdDate 26 April 2001
[1]APPEARANCES For the Appellant MR DON HUGHES (Director of Appellant Company) Camdon Group Ltd PO Box 222 Stratford upon Avon Warwickshire CV37 9RN For the Respondent MISS ELIZABETH THOMSON (Lay Representative) 36 Adare Street Port Talbot South Wales SA1Z 6QF HER HONOUR JUDGE A WAKEFIELD This is an appeal by Camden Group Ltd against a decision of an Employment Tribunal held at Cardiff on 21 January 2000, by which it was decided that the dismissal of Miss Adrienne Lamb was unfair and that she had been discriminated against on grounds of her sex.[2]The appeal has been, in accordance with the decision at an ex parte Preliminary Hearing at this Tribunal, limited to the issue whether the Employment Tribunal Chairman should:
"……at the outset, when appraised of the fact that the witnesses were not available, and the in the knowledge of the circumstances surrounding the cancellation of the previous hearing have expressly asked Mr Hughes whether he wanted a postponement and by failing to do so prejudiced his right to a fair hearing."
[3]The factual background is that the Employment Tribunal hearing was initially fixed for 18 October 1999. The Appellant runs a care home where Miss Lamb was employed. Mr Don Hughes, a director of the Appellant intended to be present to represent them at that hearing on 18 October. He intended to call as witnesses on its behalf, three members of staff and a resident. On the morning of 18 October the hearing was cancelled at the behest of the Employment Tribunal, the prospective Chairman having suffered a bereavement. The hearing was re-fixed for 10 December 1999 but the Appellant was apparently not notified of this date and only discovered it by chance when it was too late to make arrangements to appear. The hearing was therefore, in November 1999, re-fixed for 21 January 2000.[4]At the Employment Tribunal hearing, Mr Hughes attended alone on behalf of the Appellant and presented written signed statements of the evidence of his witnesses. In the event the Employment Tribunal did not accept that evidence nor the oral evidence of Mr Hughes himself, preferring the evidence of the present Respondent. Mr Hughes claims that, had he been told that the written statements would be likely to carry considerably less weight than oral evidence from the makers of those statements and had he known that he could, on the day of the hearing have applied for an adjournment in order to have those witnesses present, he would have made that application. He therefore asserts that the Appellant was denied a fair hearing by the Employment Tribunal and that the matter should be sent back by this Tribunal for a full re-hearing below.[5]We have today investigated with Mr Hughes the reasons for the absence of his witnesses on 21 January 2000, he having known of the hearing date for at least seven weeks in advance, if not more. We were told that on the day of the hearing there were unexpected staffing problems at the care home and that it was impossible for the two witnesses he intended calling in January, a nurse, Mrs Chivers, and a care assistant, Miss Vincent, to leave.[6]We are quite unable to accept that given the period of notice of the hearing it would not have been possible to make sufficient and certain arrangements in advance for the attendance at the Employment Tribunal of the two witnesses, if that is what Mr Hughes had in fact determined to do. We are also unable to accept that Mr Hughes could not have appreciated that written statements would necessarily carry less weight than oral evidence by their makers, or that he failed to realise that it was open to him on the day of the hearing to apply for an adjournment if he had truly been faced with an unexpected and unplanned lacuna in his arrangements for the case.[7]We are satisfied that there was no duty on the Chairman of the Employment Tribunal in all the circumstances to enquire expressly of Mr Hughes whether he wished to adjourn the case on that day. We are driven to the conclusion that Mr Hughes made a choice as to how the case was to be conducted and, that choice having proved to be ill advised, now wishes to have a second and better managed attempt to justify what the Appellants did as regards their employee. The appeal is dismissed.