BOWNE INTERNATIONAL LTD v (1) MR D SLATER (2) MR M GILBERT (3) MR P BRACHER (4) MR J HARTNETT [2002] UKEAT 1165_02_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1165_02_2012Case No AppealNo. EAT/1165/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BOWNE INTERNATIONAL LTDAPPELLANT(1) MR D SLATER (2) MR M GILBERT (3) MR P BRACHER (4) MR J HARTNETTRESPONDENTS
Before
Mr Justice Elias Mr P A L ParkerDate 20 December 2002
[1]APPEARANCES For the Appellant Ms Nadia Okraku Representative Messrs Halliwell Landau Solicitors 75 King William Street London EC4N 7BE For the Respondents No appearance or representation by or on behalf of the Respondents THE HONOURABLE MR JUSTICE ELIAS We have before us an appeal against a Decision of a Tribunal Chairman on 6 December of this year to refuse to adjourn a hearing fixed for 9 and 10 January. The background to this is, briefly, as follows. The Appellant is a company which is facing currently four claims in these proceedings for unfair dismissal arising out of certain redundancies that were effected last year. The dismissals took effect on 30 November 2001; accordingly it is already over twelve months since these employees lost their jobs.[2]The Tribunal sought dates from the Applicants when they would be available to attend a hearing and those dates were given by a letter on 13 September 2002. Various dates were given at that time, including 9 and 10 January. Unfortunately, in the course of October and early November of this year, the Appellant Company discovered that it was necessary for them to make yet further redundancies, and these are to take effect before the end of January; that is the current proposal. They therefore realised that there would have to be consultations scheduled for January 2003. There are two witnesses whom the Appellant will wish to give evidence at the Tribunal who are both, we are told, very senior managers and who are deeply involved in the consultation process.[3]On 15 November, the Appellant notified the Tribunal of the changed dates, they realised by then that 9 and 10 January were not appropriate dates, and they indicated that it was not suitable from the employer's point of view that the hearing should take place then; other dates were given instead.[4]On 19 November the Appellant received a letter informing them that the hearing had indeed been fixed for 9 and 10 January. It appears that what happened was that these two letters crossed. In other words, the Tribunal had sent out the letter, fixing the date in the light of the information they had been given on 13 September. That information had been changed, but, unknown to the Tribunal when the date was fixed and the letter was sent.[5]The Appellant then sent a request to the Tribunal asking for the date to be vacated, and sending further dates when they were available. Astonishingly, in our view, there were very few dates when they were going to be available; indeed, the only dates they gave were 20 -24 January 2003, 5, 6 and 8 - 26 May 2003; no availability was identified at all for the period of February, March or April.[6]This request was considered by the Chairman, and he refused it on 29 November; he simply commented that the Notice of Hearing had taken account of the initial available dates, and that they had now been changed. A further request for reconsideration was made and another decision was taken by the Chairman, confirming his original decision, on 4 December 2002. The Chairman commented, in giving his response:
"The listing of this case has been rendered virtually impossible by the Respondents' whole approach. Only 5 dates are now offered before May 2003……"
[7]There was further correspondence and another confirmation on 6 December by the Chairman. This time he commented:
"The fact that there is further lengthy period of unavailable dates is clearly a factor to be taken into account when deciding whether to postpone."
That is technically the Decision which is the subject of challenge in this appeal, but in fact, the Chairman, again, reconfirmed his original Decision on 13 December 2002. It is perhaps worth noting what the Chairman says, he said this:
"In addition to his earlier comments he points out that because of the ever growing case load in this region pre-listing enquiries and other date selection mechanisms are administratively no longer viable. Where parties and representatives send in lists of dates to avoid the listing section obviously take them into account - although it is more time consuming."
And he noted that it would be now impossible, in late December, simply to switch dates in January and February.[8]It is submitted by Ms Okraku, on behalf of the Appellant, that the Tribunal Chairman has erred in law in his approach to this question of postponement. She submits that there has already been a long delay, and any short further period ought not to cause any significant prejudice. It is also suggested that there is a breach of Article 6 of the Human Rights Act , in that the Appellants will not have a fair chance to put their case without being able to call these key witnesses. Overall it is said the interests of justice are not served in this case by refusing a postponement.[9]There is one further matter to which we should make reference. It has become clear that the Applicants in these cases are certainly content to accept a postponement. It appears that that was known to the Tribunal Chairman when he made his ruling on the 6 th .[10]We, however, have before us a further letter which was not before the Chairman of the Tribunal, dated 18 December 2002. This letter is from the Deputy General's Secretary of the Trade Union that is involved in the consultations over these redundancies. It confirms that the union, acting on behalf of these employees, is prepared to have the matter postponed. One of the reasons is that Mr Beck, the union representative, is concerned that if key witnesses are not present, then the Employment Tribunal might still adjourn the hearing on 9 and 10 January, and that will cause even longer delays and, perhaps, unnecessary costs. But it is right to say in this letter that Mr Beck indicates that the employees too, or more specifically he, is having difficulty finalising paper work in these cases and he also indicates that it would be unsatisfactory from both parties' point of view to go ahead with this hearing on 9 and 10 January.[11]We have not found this an easy matter; we, of course, respect the Decision of the Chairman, and we do not like to interfere with it. We have, if we may say so, every sympathy for the approach he adopts to this case. He was plainly influenced, and quite rightly, strongly influenced, by the fact that the Appellant had made so few dates available. The impression he may have got, and it is certainly the impression we have got, is that the Appellant has put the Tribunal hearing low in its priority of matters and is virtually expecting the Tribunal to jump to its tune. Ms Okraku say that that would in fact be a misunderstanding. She say that there are really genuine and strong concerns by the employers in this case, particularly to get this redundancy exercise right this January, partly because of the concerns that had been raised about the exercise last time, and they want to avoid any further legal actions in relation to this round. But as one of our members, who has great experience in these matters pointed out there should still be plenty of flexibility, even in dealing with questions of consultation.[12]In any event, what ultimately has caused us to consider that it would be right to postpone this hearing in this case, is that it now seems that both parties will have difficulty in being properly prepared for this case. It is plain that the redundancy exercise in this company is going to need a lot of attention throughout the course of January, and we recognise that, and no doubt that is taking up a considerable amount of time and effort, not just by the managers, but by the union representatives themselves. Having said that, we remain of the view that these employers frankly have not given the priority to this hearing that they ought to do. We are concerned on behalf of these employees that even if a hearing now takes place in April or May, it will be almost eighteen months after the dismissals. That is unacceptable.[13]It is perhaps inevitable now in this case, given that we have concluded that knowing now the attitude of both parties, the most sensible thing is to postpone this hearing. But we would expect the Appellants to look extremely carefully at the diaries of these two managers to block off only those matters which are of extreme importance to their business because, in our view, this Tribunal hearing now ought to be seen as something of extreme importance to them, and to provide dates as fully as they can to the Tribunal when they will be available. If they can only give a very limited range of dates, then we would quite understand if the Tribunal felt that they simply had to impose certain dates on the Appellants and they would have to take their chance as to whether they could make their witnesses available or not.[14]So, with considerable reluctance and principally because we feel that both parties now appear to be of the view that it would be highly unsatisfactory for this case to go ahead, we uphold this appeal, and as we have indicated, largely on the basis that we have additional information before us that was not before the Tribunal Chairman when he made his ruling.