MR G PARKINSON v MR M HEMMINGS STOKE ON TRENT CITY COUNCIL [2001] UKEAT 936_01_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 936_01_1712Case No Appeal No. EAT/936/01 EAT/937/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G PARKINSONAPPELLANTMR M HEMMINGS STOKE ON TRENT CITY COUNCILRESPONDENT
Before
His Honour Judge D Pugsley Mr I Ezekiel Mr R SandersonDate 17 December 2001
[1]APPEARANCES For the Appellants MISS J HEAL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE D PUGSLEY If the only test of winning a case was advocacy, then Miss Heal would have persuaded us, but it is not. In our view no identifiable issue of law is raised in this case.[2]We are unapologetic in saying that unless we are careful, creeping legalism will destroy the very virtues that Tribunals have, and it will mean that ordinary people will be alienated from a system which is designed for their express needs.[3]At page 2 of the bundle is a letter from the Tribunal saying:
"The Chairman has directed me to say that in the absence of any objection within 7 days these cases will be associated. A Notice of Hearing will follow in due course for a 2-day hearing."
Then follows a letter for Mr Hemmings, who was an Applicant in one case and was representing Mr Parkinson in the other, saying this:
"I have to advise you that Mr Parkinson strongly objects to his case being heard in association with case no [citing the other case]. The reason is that the events leading to the dismissals were different. However, it is likely that resolution of Mr Parkinson's claim will lead to the automatic resolution of [the other case]. The applicant in [the case] is happy for his case to remain unlisted until Case 2900384/01 has been heard."
[4]There was also a letter from the City Council saying:
"From the Respondents' point of view there would appear to be a strong argument for associating these cases, not least to avoid duplication and therefore unnecessary costs falling on both the Tribunal and the Respondents. Taking account of the similarities within each of the Applications, much of the evidence to be presented by the Respondents would be the same in each case and the same witnesses would need to be called. There would therefore be an inevitable duplication if the cases were heard separately. Until this point, both Applicants have acted in conjunction with one another, submitting a joint grievance under the City Council's grievance procedure, culminating in an internal appeal hearing at which a joint case was submitted by the Applicants. I also understand that it is Mr Hemmings intention to request that a number of witness orders are issued and would expect that at least some of those witnesses would be called upon to give similar evidence to the Tribunal. In the light of this and of the details of the Applications to the Tribunal and the further and better particulars provided in respect of Mr Parkinson, I cannot see where there are significant differences sufficient to explain why these cases could not be associated."
[5]Before us, Miss Heal said that Mr Hemmings is afraid of having the responsibility of not only representing Mr Parkinson, but also appearing in his own case, and she says that it may take longer. She makes the point that certainly, as was made in letter, the result of the case was that if Mr Parkinson loses, her client probably would not pursue the case.[6]Miss Heal has mounted an audacious argument that Rule 18(2) imposes a requirement to show cause, should mean that there ought to be an oral hearing. A Tribunal shall not make an order under this rule 18(2) if:
"(a) each of the parties concerned has been given an opportunity at a hearing to show cause why such an order should not be made: or (b) has sent notice to all the parties concerned giving them an opportunity to show such cause"
She has referred us to a Decision of some antiquity, a the Employment Appeal Tribunal case, of Beacard Property Management & Construction Co Ltd -v- Day [1984] ICR 837 . In that case had received a warning:
" that failure to comply might result in the notice of appearance being stuck out, or the employers being debarred from defending the action."
[7]The employers were refused leave to defend that case because they did not comply. In the course of his judgment, Waite J, as he then was, the President of the Employment Appeal Tribunal, said that the rule itself:
" ought to have been given an opportunity to show cause why they should not be permitted to defend the action after the default had occurred, and, accordingly, the chairman's order of 8 June would be reversed."
That, if one may say so, is a very different situation here, where the parties were told "Let us know if you object", and an opportunity was given. Miss Heal's researches, and we are quite happy to take her word on this, as in everything else, said if you actually spend a weekend going over the Rules, you will find in some cases, writing is stipulated, in other cases an oral hearing is stipulated, without any very clear or coherent reason as to why it should be, but in this case, it is neutral.[8]First of all, although we can understand the apprehensions of Mr Hemmings, none of us sitting here feels that he has presented a worry which would cause us to feel that there will be an injustice. Tribunals are used to people appearing in person, or representing a friend, and we hope and believe that his fears as to the stress, although understandable, will not prove to be sustained by the conduct of the hearing. But to require in every case an oral hearing would add to the expense to the parties to the public system of law and would destroy and place in jeopardy the whole purpose of the procedure that is short, simple, cheap and speedy.[9]At the end of the day, people who have been in employment and have an action against their erstwhile employers need that resolved quickly. We consider an excessively legalistic approach can destroy that ultimate objective of speed, getting the matter heard, and if Tribunals were to have the sort of extensive, expensive pre-trial procedural thresholds and hurdles that litigation in the Courts had until the Woolf reforms, it all adds to the overriding cost. We do not feel that it is right or proper for us to ignore the public interest is that litigation should be in proportion to the issues and that the costs that have to be incurred on behalf of the public or on behalf of the litigants should be curtailed.[10]If you do not hear both cases together, very serious issues can arise. Two disparate Tribunals can reach different decisions about the credibility of the same witnesses. Maybe a sense of grievance can arise as to one party who is the second in the pecking order, who feels that their case, to a large extent, has already been determined when they have not had the fundamental right of being heard.[11]We come to the view that whilst we are interested and have been grateful for the submissions made with great skill by Miss Heal, that it would be wrong to allow this matter to go before a full Tribunal. In our view it does not identify an issue of law that justifies it going before a full Tribunal. However, having said that, there is absolutely no reason, as Miss Heal has said, why if they wish, because there seems to be an open ended right to do so under Rule 18(3), the Applicants should not set out in greater detail, their objections to this course. We dismiss the appeals.