MR S K GANASE v KENT COMMUNITY HOUSING TRUST [2001] UKEAT 1022_01_1812

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1022_01_1812

Case No Appeal No. EAT/1022/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S K GANASEAPPELLANT

KENT COMMUNITY HOUSING TRUSTRESPONDENT

Before

His Honour Judge D Pugsley Mr J C Shrigley Mr P M Smith

Date 18 December 2001

[1]APPEARANCES For the Appellant MR D PANESAR (of Counsel) Instructed by: Mr S K Ganese 22 Heathwood Gardens Charlton London SE7 8EP For the Respondents No appearance or representation by or on behalf of the Respondents JUDGE D PUGSLEY In this case we owe a very heavy debt to Mr Panesar for the extremely able way that he has put this case.

[2]We are profoundly aware of the fact that at the end of their working life, no lawyer has ever won a bag of coal, garnished a sheaf of wheat, educated a child or cured a sick patient, and however important the determination of rights and responsibilities may be, the legal system cannot be allowed to operate oblivious to the toll it takes on the public purse and on public resources; Employment Tribunal Chairmen are correct in seeking to ensure that Tribunal time is not wasted.

[3]We appreciate Mr Ganase had serious problems but his letter to the Tribunal dated 30/8/2001, criticising the Chairman, does not recognise that there is another side to every question and the expenses incurred when a Tribunal does not go ahead is a considerable drain on the public purse and on the resources of the parties. Moreover, behind every big organisation there are ordinary individuals who are apprehensive, who wish the matter to be concluded. The crushing workload of Tribunals is such that where cases are listed but do not go ahead the queue grows longer. Having said that, we are aware of the burden of litigation it poses and we understand that the Respondents have taken the decision (and we are not critical) to help by a written Skeleton Argument rather than by appearing today

[4]The basis of this case is one that can cause legitimate concern. The Applicant was dismissed as long ago as June 1998. He submitted an IT1 claiming unfair dismissal and disability discrimination in June of that year. The IT3 was submitted by 9 July, admitting there was a dismissal but alleging dismissal by reason of incapability. There was a hearing in June 1999 before the Employment Tribunal as to whether the Appellant's chronic fatigue syndrome and diabetes amounted to a disability for the purposes of disability discrimination.

[5]In February 2000, there was a preliminary hearing and leave was granted for a full hearing in the appeal against the finding of disability. In March there was a full hearing of that appeal and the appeal was dismissed. On 29 June there was a notice of hearing sent to the parties for the hearing on 7 August.

[6]On 24 July the Appellant wrote to the Tribunal and requested an adjournment because his representative had withdrawn his services. On 26 July, that letter came back from the Tribunal, refusing that adjournment, saying the interests of justice required the case to be heard without delay. On 6 August, the Respondents' solicitors telephoned the Tribunal to ask whether the Appellant had withdrawn. On that self same day the Applicant obtained a doctor's letter.

[7]On 7 August at the Ashford Employment Tribunal the Applicant applied for, and was granted an adjournment, on production of a doctor's letter, but he was ordered to pay the costs of £865 before the date of the next hearing. On 22 August, Extended Reasons were given for that, and in paragraph 12, the Tribunal said:

"12. This Tribunal is very concerned that the application to postpone has been made only today by a doctor's letter dated 06 August 2001. Bearing in mind that the Applicant's representative had withdrawn his services at least by the 24 July 2001, there should have been no difficulty in obtaining some medical evidence before today or failing that, we have heard no reasonable explanation as to why the medical evidence could not have been faxed to this Tribunal yesterday 13. In producing the medical evidence late and in making the application to postpone only today, the Applicant has caused the Respondent and its representative to be here with witnesses and has caused them unnecessary expense. We regard this as unreasonable conduct of the proceedings pursuant to Regulation 14(1) of the Employment Tribunals Rules of Procedure 2001. 14. In relation to his means the Applicant has told us that he is not currently working but is in receipt of Incapacity Benefit of £139 per fortnight. 15. Pursuant to Regulation 14(1) of the Employment Tribunals Rules of Procedure 2001, we order the Applicant to pay to the Respondent costs of £865. Such costs to be paid to the Respondent before the date of the next hearing whenever that may be."

[8]Leave was given by a preliminary hearing of this case, presided over by Mr Commissioner Howell QC and Mr K Edmondson JP and Mr I Ezekiel, on a hearing of the Tribunal on 7 November of this year, that the matter proceed to a full inter partes hearing.

[9]We say in no spirit of criticism of either this Tribunal, or the Employment Tribunal, that a dismissal that was as long ago as three years ago has yet to be heard. We can understand the frustration that this type of delay must engender, as well as the considerable degree of apprehension for people who have little experience of appearing before Courts or Tribunals and may have apprehension about this. We have to point out that the Respondents are a charity; they are providing residential care for the elderly, a very much needed service, and they have priorities, not just to their employees, but to those who donate to the charity or have donated to it, as well of course, to those vulnerable people who are in their care. We can therefore, understand their concerns and their reason for not attending here today.

[10]We accept Mr Panesar's basic submission which is that if you look at the Reasons that the Tribunal gave, there is no setting out in sufficient detail to identify why it is that they believed that the application was unreasonable. At paragraph 12 the Tribunal say:"12. This Tribunal is very concerned that the application to postpone has been made only today by a doctor's letter dated 06 August 2001. Bearing in mind that the Applicant's representative had withdrawn his services at least by the 24 July 2001, there should have been no difficulty in obtaining some medical evidence before today or failing that, we have heard no reasonable explanation as to why the medical evidence could not have been faxed to this Tribunal yesterday

13. In producing the medical evidence late and in making the application to postpone only today, the Applicant has caused the Respondent and its representative to be here with witnesses and has caused them unnecessary expense. We regard this as unreasonable conduct of the proceedings pursuant to Regulation 14(1) of the Employment Tribunals Rules of Procedure 2001.

[11]Mr Panesar has helpfully set out the terms of that Order, "Where in the opinion of the Tribunal, the party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, or bringing or conducting of the proceedings by a party has been misconceived the Tribunal shall consider making, and if so decides may make: (a) an order containing an award against that party, in respect of the costs incurred by another party ….." Mr Panesar's basic contention is that the Tribunal had accepted, on the basis of the medical report that was before him that the Appellant was neither physically or mentally capable of conducting the hearing. He was unrepresented. The decision as to costs for someone, who was in receipt of state benefits, was a considerable figure, namely £865. It is argued that as the Tribunal had decided he was incapable of conducting the case it should not have gone on to make an investigation, at that stage, of an unrepresented applicant who was suffering from that degree of mental and physical incapability. It is, says Mr Panesar, an error of law to go on to make an investigation if you have already accepted he is not fit, by reason of the medical report you have, to conduct his own case.

[12]We have already pointed out that the Tribunal seem to have assumed that it was unreasonable, rather than themselves having examined whether it was. We accept Mr Panesar's contention that whilst unreasonable behaviour is not easily susceptible to a precise definition, there must be a threshold below which can be said that a party's behaviour is such that no reasonable Tribunal, properly directing itself could term the behaviour "unreasonable". We note that the very terms of the Order places a high threshold to the award of costs and think the word "unreasonable" has to be construed in the context of the other words of that Rule which we have set out.

[13]We are not a fact finding body. If what we are told by Mr Panesar is found to be proved true on an investigation as to the reasons why Mr Ganase failed to submit a medical report prior to the hearing, we consider it would be unlikely that any Tribunal would regard his conduct as coming within the ambit of Rule 14. If that which we have been told by Mr Panesar is that the circumstances of the Appellant's visit to the surgery, and the difficulties he encountered is accepted in evidence, a Tribunal would hesitate long before deciding he was unreasonable. The Applicant's evidence would, no doubt, be tested in cross examination.

[14]Whilst Mr Panesar, in a wholly realistic way which has characterised his submissions, accepts Benyon -v- Scadden

[1999] IRLR 700

renders it difficult for any challenge to be mounted on the basis of the amount of the award of costs, or the nature of the enquiries as to the means of the Appellant, he does point with force to the relative harshness of the award against an applicant whose income was £139 Incapacity Benefit and it is worthy of note, he says that the Order provided that payment was to be made before the next hearing, whenever that may be.

[15]We are concerned that the Order we make should not be a substitution of our discretion for that of the Employment Tribunal. As we have already said; we are not a fact finding body. We think justice could be met in this way by setting aside the Order made by the Tribunal.

[16]However, we give leave to the Tribunal and urge them to consider the issue of the costs which were wasted by this aborted hearing, either at the end of the hearing or if the Respondents so wishes, if the case does not proceed to a full hearing, on their application. We consider that fairness dictates that the Respondents should have a right to be heard on the issue of costs thrown away. We consider with equal parity of fairness, that the Appellant should have the opportunity, when he is in a fit state, to put before the Tribunal the way in which he acted for them to consider whether it was within the Rule 14 to make such a stringent and draconian Order as to costs.

[17]It is important to bear in mind that there may be two sides to this question both of which should be ventilated. The Respondents are a charity, concerned with providing a much needed service.

[18]The Applicant is a person who has had much misfortune in his life, in terms of health. But that, equally, if we may say so, although it invokes one's sympathy, cannot excuse him from the consequences of actions, that would leave unnecessary expense being incurred by someone else.

[19]In this case there are two potential losers. We believe that what we have done is fair in quashing the Order for costs, but giving leave for that issue to be considered, either at the end of the hearing, or if for some reason the hearing does not proceed, at a separate hearing, so that everything can be considered fairly and squarely in the light of the circumstances of fact which a Tribunal find them to be. If that which we have been told is, on a proper examination found to be correct, there are very understandable reasons why the Applicant was not in a position to give greater notice in the sense that he encountered difficulties in obtaining a medical report.

[20]We therefore allow the appeal to the extent of quashing the Order and an Order requesting costs be reconsidered at a later stage, at the end of the hearing, or as we have said, if there is no hearing, on an application by the Respondents, if they are so minded to make it. Mr Panesar has, perfectly properly, invited us to consider whether the matter should go back to the same or different Tribunal. We do not want to disturb the hearing in January, and if fixed before the same Tribunal, we would not regard it as imperative to alter that. On the other hand, we would prefer that it went before a different Tribunal. Mr Panesar has not argued against our view and his client, as we understand it and from whom he is taking his instructions, has very properly said that he would accept the position. We have asked Mr Panesar to convey our views to the Tribunal, because given the pressures of work at this Tribunal, it is unlikely that the judgment would be back before the Employment Tribunal, in sufficient time for them to know our view. In brief it would be preferable if the matter went before another tribunal but only if that does not jeopardise the hearing date in January.