MRS E KNIGHT v LONDON CENTRAL BUS CO LTD [2001] UKEAT 0443_00_1810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0443_00_1810Case No Appeal No. EAT/0443/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E KNIGHTAPPELLANTLONDON CENTRAL BUS CO LTDRESPONDENT
Before
Mr Justice Wall Mr B V FitzgeraldDate 18 October 2001
[1]APPEARANCES For the Appellant MR MASAYUKI NEGISHI Representative Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ For the Respondent MR IRVINE MacCABE (Of Counsel) Instructed by Messrs Moorhead James Solicitors 21 Fetter Lane London EC4A 1AW MR JUSTICE WALL In this case Mrs Knight, (the Appellant) brought proceedings against her former employer London Central.Bus Co Ltd, (the Respondent) alleging unfair dismissal, breach of contract, deduction from wages, sexual discrimination, and victimisation. These proceedings were heard by the Employment Tribunal sitting at London South on 20 and 21 September 1999 with reasons promulgated on 27 February 2000.[2]The Employment Tribunal found:(1) that the Appellant was not dismissed for health and safety reasons;(2) that she was not dismissed for having asserted a statutory right;(3) that her complaint of direct discrimination and victimisation contrary to the Sex Discrimination Act 1975 was not well-founded. However, the Tribunal found on the other hand:(4) that the Respondent was not entitled to deduct from her wages the sum of £437.55 which the Tribunal ordered to be paid to the Appellant. The claim against her for breach of contract was dismissed.[3]The Appellant now seeks to appeal against that decision. The matter came a before a division of the Employment Appeal Tribunal on 29 November 2000 by way of preliminary hearing. The Appeal Tribunal, in a constitution presided over by Mr Justice Bell, decided that the appeal should proceed on one basis and that was whether or not the case should have been adjourned. The way it was put was whether or not the Chairman's decision not to allow an adjournment as requested by the Appellant's representative because she was "suffering from post traumatic stress disorder and in no fit state to contribute to (her) case was perverse and obviously wrong."[4]That particular ground, as originally drafted by Mrs Knight was in these terms:
"The conditions I was in the Tribunal regarding post-traumatic stress disorder showed. Therefore, the hearing should have been adjourned"
A fuller and more elegant formulation put before the Employment Appeal Tribunal on 29 November resulted from the efforts of Counsel instructed under through ELAAS. The case has thus been prepared for this appeal on the basis of whether or not an application for an adjourment was sought and inappropriately refused. At all events that was the basis upon which it was to be argued. On that basis Counsel for the Respondent put in a skeleton argument which took the point that it was, in these circumstances, inappropriate to allow the introduction of evidence by way of statement on affidavit. Evidence as to what had actually occured at the Tribunal was only appropriate in circumstances in which the conduct of the Tribunal itself was being put into question.[5]In answer to the suggestion that evidence should not properly be admitted Counsel on behalf of the Appellant did two things. The first was to seek to amend the Notice of Appeal in these terms:
"In the circumstances of the case, the chairman's decision not to adjourn the hearing, regardless of whether an application for adjournment was made or not, amounted to a failure to exercise discretion judicially."
Secondly, he sought to put in a skeleton argument which dealt with the arguments put by Mr MacCabe on the Respondent's behalf in relation to the admission of evidence.[6]In opposing the application to amend this afternoon, (an amendment being plainly necessary for the Appellant's case properly to be put before this Tribunal), Mr MacCabe invited our attention to paragraph 9 of the Employment Appeal Tribunal Practice Direction which is in these terms: "Complaints about the conduct of the hearing by the Industrial Tribunal: 1. A party who intends to complain about the conduct of Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint. 2. In any such case the Registrar may enquire of the party making the complaint whether it is intended to proceed with it. If so, the Registrar will give appropriate directions for the hearing. 3. Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form basis of the complaint and the provision of further particulars of the matters relied on. 4. When the direction has been complied with the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he has, and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on. them. Those comments will be supplied by the EAT the parties. 5. A copy of any affidavit or of directions for further particulars will be supplied to the other side. 6. The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed.[7]It is reasonably clear - to put the matter neutrally - that during the course of the hearing below the Appellant was in a state of some distress and left the court from time. She is also described in some of the documentation as having been angry. We have a letter from the Chair of the Tribunal dated 19 February 2001 regretting that her notes of the hearing have been mislaid or have disappeared, and equally regretting the fact that neither of the members making up the Tribunal on that day had theirs. The members' notes had been, perfectly reasonably, it seems, destroyed. The Chair has a recollection of the hearing which she describes in the course of her letter. In short, the impression she formed was that the case could proceed notwithstanding any distress which the Appellant manifested.[8]I should also say that there is evidence from the solicitor instructed at the Tribunal by the Respondent and from the lay representative who was representing and assisting the Appellant, and on the face of those documents there is a degree of conflict in the evidence. But Mr MacCabe's essential point is that if the amendment to the Notice of Appeal is permitted (as we are minded to allow it) this moves the case from what would otherwise be a conventional argument about the appropriateness or inappropriateness of the exercise or a discretion to grant an adjournment, to what is in effect a criticism of the Chair of the Tribunal for failing to take appropriate control and impose an adjournment when one must have been obviously or plainly necessary. He submits (we think with some force) that if that is to be the assertion it comes plainly within rule 9. On that analysis, if we are under Rule 9, the procedure laid down in the Practice Direction under rule 9 which is mandatory must be followed.[9]We think Mr MacCabe takes that view with some regret because this inevitably involves further delay and expense to those instructing him. But we think he is right about it. We have no idea had the matter proceeded how he would have decided this appeal. It could have gone either way. But to have dismissed it without full information might well have done an injustice to the Appellant, whilst to have allowed it without going through the paragraph 9 procedure might well have done an injustice to the Respondent.[10]In these circumstances we have come to the view that the matter must inevitably be adjourned for the rule 9 procedure to be carried out. We therefore propose to adjourn the appeal to a date to be fixed and direct that the rule 9 procedure be applied. We hope very much that it should be possible for Counsel to agree the appropriate directions which will enable the rule 9 provisions to be implemented and the case then to be restored for a full hearing.