MRS Y J KHAN (NEE LANIYAN) v LONDON BOROUGH OF HACKNEY [2002] UKEAT 1123_00_1908

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1123_00_1908Case No Appeal No. EAT/1123/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS Y J KHAN (NEE LANIYAN)APPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge J R ReidDate 19 August 2002
[1]APPEARANCES For the Appellant MR T CROXFORD (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME JUDGE REID QC This is the second Preliminary Hearing of an appeal by Mrs Khan, as she now is, against a decision of an Employment Tribunal held at Stratford on 16 and 17 March 2000. The decision, with Extended Reasons, was sent to the parties on 5 March 2002. Previously, Summary Reasons had been given to the parties on 13 April 2000.[2]The reason for the late service of the Extended Reasons is that Mrs Khan applied for Extended Reasons out of time. That application was refused. The matter was then appealed and after the Preliminary Hearing of the appeal against the refusal to give Extended Reasons the Tribunal, of its own motion, gave its Extended Reasons.[3]The decision that the Tribunal took in March 2000 was twofold. First they refused Mrs Khan's application for an adjournment and then they went on and held that she was not unfairly dismissed.[4]Mr Croxford, to whom we are extremely grateful, appeared before us under the ELAAS Scheme and as usual produced persuasive and thorough argument. He says that he needs only to look at the refusal to adjourn, that the Tribunal erred in law, or alternatively was perverse in refusing the adjournment, and that that error then vitiated what might be described as the 'substantive decision'.[5]The background to the case was that Mrs Yvonne Laniyan, as she was then called, was employed as an Estate Manager by the Respondent, London Borough of Hackney. She started work there in 1984. She was dismissed on 11 September 1998.[6]The grounds for her dismissal were that she had improperly made a substantial number of telephone calls at the expense of her employers to a variety of destinations, including satellite calls to a tanker in the Indian Ocean and premium line calls.[7]The Tribunal is not, of course, concerned with whether that was objectively a true bill but whether the dismissal procedure, based on the local authorities' belief, or purported belief, that she had misbehaved in this way, was a proper decision.[8]The background to the application to adjourn was that the case had originally been listed for hearing on 15 February 1999. It was then adjourned on Ms Laniyan's request (at that stage she was pregnant). There was a further adjournment, again at her request and in October 1999 the matter was adjourned for a third time at her request, a doctor's certificate having been provided showing that she was suffering from post-natal depression.[9]On 2 March 2000, with the case listed for hearing on 16 and 17 March, solicitors then acting for her, Osibanjo Ete & Co., made an application for an adjournment. The relevant passage of their letter dated 2 March, but in fact apparently sent by fax on the afternoon of 3 March, was this:
"A brief perusal of the available documents has led us to conclude that we would require Further Information and Written Answers from the Respondents. We therefore respectfully request an adjournment of about ten weeks to facilitate full disclosure and preparation. We have explained to the Applicant that we will represent her provided we are able to persuade the Tribunal to adjourn the hearing to give us time to prepare. We look forward to hearing from you."
[10]That application was turned down on paper. In our view it was inevitable it was going to be turned down. Here was an extremely late application being made. There was no indication given what further information was required or what written answers would be sought.[11]One might have expected, had this been a serious application for an adjournment, for Osibanjo Ete & Co. to have applied for a review of that decision and to have indicated why it was they really did need 10 weeks and precisely what it was they would require by way of further information. They did not do so. They dropped out of the picture.[12]Instead, Mrs Khan made an application on 14 March for an adjournment, backed up by medical certificates saying she was unfit to work and at the commencement of the hearing she made a further application for an adjournment, his time backed up by a medical certificate which said that she was unfit for work and also unfit to represent herself.[13]The Tribunal turned down that application and that is the decision against which an appeal is now made. The position, Mr Croxford says, at that stage was that the proceeding could have continued if she had been represented, even though she was still suffering from post-natal depression, or the proceedings could have been adjourned but what could not properly be done, in his submission, was that the hearing should continue with her unrepresented in the light of the medical certificate.[14]He accepts that the Tribunal had a discretion as to whether or not to grant the adjournment but says that in refusing the adjournment, the Tribunal was either perverse or erred in law because what they had done, in his submission, was elevate wrongly into a general principle of law one matter, namely the need for early and speedy determination of proceedings.[15]He took us carefully through paragraphs 2-5 of the Extended Reasons in which the Tribunal traced the history of the various legal representations that Mrs Khan had had; Direct Legal, then Carpenter & Associates (with whom she was, by that time, involved in County Court proceedings), Duncan Lewis & Company, Omerods Solicitors and finally Osibanjo Ete & Company.[16]He pointed out that the medical certificate was unchallenged and he also pointed out that the Tribunal, in paragraph 4 of their decision, which appears to be at the crux of their reasons, appears to have been relying primarily on the fact that these were aged proceedings. He says that they demonstrated that they were looking only at that and that this was a case where they placed too much emphasis on that one factor.[17]The Tribunal had of course gone on to say that the central issue was why she was not represented and had said: 5 "Even on the basis that the Applicant has had a run of bad luck in attempting to arrange her representation, there are limits to the allowances which the Tribunal can reasonably make. Those limits, in our judgment, have been exceeded in this case."[18]He says that that ignores what is now expressed as an overriding objective, but was just as much the position beforehand, namely that the Tribunal should ensure that any cases which they deal with are dealt with justly and dealing with a case justly includes, so far as practicable, ensuring that the parties are on an equal footing.[19]It was noticeable that he did not go on to the remaining parts of what is now paragraph 10 (2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 , which read: 10 (2)… (b) "saving expense; (c) dealing with the case in ways which are proportionate to the complexity of the issues; and (d) ensuring it is dealt with expeditiously and fairly."[20]In our judgment the Tribunal were perfectly entitled in what was, after all, a pretty straight forward unfair dismissal case, to take the view that enough was enough, that the matters before them should be dealt with at that stage and that the fact that she was by at that stage unrepresented and had produced some medical evidence to suggest she could not represent herself, was not enough of a reason to have yet another adjournment of the case.[21]Mr Croxford went on to criticise the latter part of paragraph 5 of the decision: 5 "The Applicant chose to stay and participate in the proceedings, representing herself. She resumed her composure and, if we may say so, under appropriate guidance from the Tribunal, put her case to the Respondent's witnesses and challenged them articulately during cross-examination. She gave her own evidence in chief lucidly and, under cross-examination, dealt with the challenges to her in a clear and robust manner." He says that that is ex post facto justification. It is not. It is merely noting that in the event the Tribunal's doubts about the adequacy of the medical evidence proved to be well-founded.[22]Here is a case where it is clear from the careful decision that the Tribunal took great care to ensure that Mrs Khan was not disadvantaged by being unrepresented and it is extremely noticeable that nothing has been said to us at any stage to suggest what might have been produced by an adjournment which would have altered her case for the better.[23]In our judgment, the Tribunal had a task to do in balancing the position of each side against the other and they determined how the balance fell. It fell against Mrs Khan. In doing so the Tribunal reached a conclusion which it was entitled to reach. It did not err in law in reaching that conclusion, nor was it perverse in reaching that conclusion.[24]It follows that this appeal has no prospect and it should be dismissed at this preliminary stage. Mr Croxford, we are very grateful to you for your argument.