MR SHASHI KUMAR v (1) UNIVERSITY OF STRATHCLYDE (2) PROFESSOR JOHN ARBUTHNOT (3) MR WILLIAM SUTHERLAND (4) PROFESSOR COLIN EDEN [2002] UKEAT 0003_02_2606
[1]APPEARANCES For the Appellant Ms A Jones, Solicitor Of- Messrs Mackay Simon Employment Division Maclay Murray & Spens 3 Glenfinlas Street EDINBURGH EH3 6AQ For the Respondents Mr A F Deutsch, Solicitor Of- Messrs MacDonalds Solicitors 1 Claremont Terrace GLASGOW G3 7UK LORD JOHNSTON: This appeal arises in a rather unusual way. It is taken against the decision of a Chairman, sitting alone, refusing a request by the appellant to postpone or reschedule the hearing proposed for this case which was scheduled for 8 days, spread over a five-month period, originally due to start in April 2002 and conclude in August. In view of the fact this appeal has been taken, over half those days have already been lost.[2]So far as we can divine, the real reason for the somewhat unusual scheduling was to comply with requirements of parties and, in particularly the respondents, as far as the availability of witnesses are concerned to minimise clashing with their professional commitments. It was not, as we understand it, directed to a pressure on the Tribunal system. This was accepted by Mr Deutsch, who appeared for the respondents before us.[3]Ms Jones, appearing before us, sought to submit that the normal task of evaluation of evidence imposed upon a Tribunal was compounded or made more difficult in racial cases by reason of their difficulties and complexity. It was therefore essential to minimise any pressure upon the Tribunal's exercise of its evidential decision-making powers by minimising the separation of any hearing, particularly, if it involved separating examination in chief from cross-examination. It was, she submitted, very important that such should be, as far as each witness is concerned, a cohesive unit in order to assist the Tribunal in its assessment of credibility and reliability and general impression. Her essential position was, that the scheduling of this case in the way it was done which was highly unusual, would have amounted to prejudice to the appellant's case inasmuch as it was bound to make his task more difficult. No prejudice she submitted could be visited upon the respondents in the same way upon whom there was no onus of proof.[4]It is wholly inappropriate for this Tribunal to issue any form of instruction as to how the Employment Tribunal should run its own affairs and administer its listings. However, we would seek in this case to make one or two observations.[5]In the first place, we consider that deliberate scheduling of a case whereby there are gaps between every day of a proposed hearing is unsatisfactory and to be avoided unless it is absolutely necessary. This is because it lends itself to the risk of there being a division between examination and cross-examination of a witness which is unsatisfactory and not conducive to good case management. If the gap in time terms is substantial furthermore, it would appear to make it more difficult for the Tribunal to compare examination in chief to cross-examination by way of recollection.[6]Secondly, however, we would not wish to be seen to suggest that any form of intermittent hearing must be avoided in the sense that all hearings must be continuous. We recognise the practical difficulties that would arise both in relation to the availability of witnesses and the Tribunal management if this became an absolute rule. On the other hand, we consider it is extremely important to minimise any such time gaps and certainly we consider that hearings should be scheduled in any case to allow at least two or more days of hearing at any one time even if there has to be a gap. We do not consider that it is conducive to good practice to have a hearing scheduled in a way this one was, however well intentioned the Chairman in question was. Equally, however, we are not impressed with the notion that hearings must be set to accommodate the professional or other external requirements of either witnesses or parties. At the end of the day, an applicant is entitled to a speedy resolution of his case not hampered by external requirements of the opposite party.[7]In these circumstances this appeal is allowed inasmuch that the case will have to be re-scheduled in any event. We therefore remit it back to the Employment Tribunal for that purpose in the earnest hope that what we have stated by way of observation in this case will be put into practice.[8]We should add that we are not proceeding in this case on the basis that cases involved in race discrimination should require special treatment. What we have said applies, in our view, to any case brought before the Tribunal.