MRS A GRANT v PICKERING INTERFACES LTD [2002] UKEAT 1375_01_0307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1375_01_0307Case No Appeal No. EAT/1375/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A GRANTAPPELLANTPICKERING INTERFACES LTDRESPONDENT
Before
Mr Justice Maurice KayDate 3 July 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE MAURICE KAY : There is listed before the Tribunal today Mrs Grant's appeal from a decision of the Employment Tribunal sitting at Bury St Edmunds on 11 September 2001. The matter is listed for preliminary hearing.[2]The Tribunal will proceed to deal with that preliminary hearing shortly when I am rejoined by two colleagues. Before that it is for me to rule in Chambers on another appeal brought by Mrs Grant, this time an appeal from the Order of the Registrar of the Employment Appeal Tribunal dated 24 June 2002.[3]Very briefly, it was Mrs Grant's wish to call as a witness before the Employment Tribunal a lady called Mrs Marion Pryer. To that end Mrs Grant obtained a Witness Order to secure Mrs Pryer's attendance.[4]On 12 July 2001, solicitors acting for the employer, wrote to the Tribunal indicating that they were applying to set aside the Witness Order on the ground that Mrs Pryer could not give any admissible evidence. That letter says, on its face, that something was enclosed with it. The postscript "Enc" is referred to, although it is not clear to me precisely what was enclosed.[5]The next thing that one knows for certain is that on 21 July there was sent to the Employment Tribunal a document under the name of Mrs Pryer and appearing to come from her home address. The essence of it is that she had no significant evidence to give and that she had logistical and health difficulties. The letter was undated and unsigned. It simply is a typed letter, ending with the words "Yours truly Mrs Marion Pryer" still in typed script, but containing the date stamp of the Employment Tribunal on 21 July. It seems that some time soon after that the Witness Order was set aside.[6]On 26 July Mrs Eustace, a friend of Mrs Grant, who was representing Mrs Grant in the Employment Tribunal, telephoned the Employment Tribunal, saying that Mrs Grant was concerned that the letter appearing to come from Mrs Pryer was in fact fraudulent.[7]On 27 July a letter was written by the Employment Tribunal to Mrs Eustace, part of which says:
"With regard to your request that a copy of Mrs Pryer's undated letter which was received at this office on 21 July 2001 be copied to her for her to confirm its authenticity and/or that she be asked to provide a copy of the letter she did send from her home computer, these matters are best dealt with as preliminary points at the hearing."
The Tribunal was there relaying the decision of a Chairman of an Employment Tribunal, albeit not the one who was subsequently to hear the application.[8]On 11 September 2001 the hearing took place. Mrs Eustace represented Mrs Grant. I am told by Mrs Grant that the matter of Mrs Pryer was raised early in the proceedings but that there was an indication that it would be considered later in the proceedings. In the event it was not. The Extended Reasons for the decision make no reference to the issue about Mrs Pryer and, I am told, neither Mrs Eustace nor Mrs Grant made any further reference to the matter in the course of the proceedings. The decision was made that Mrs Grant had not been unfairly dismissed and that, as I have said, is to be the subject of an appeal this afternoon.[9]On 14 June 2002 Mrs Grant sought a direction from the Employment Appeal Tribunal that Mrs Pryer either attend the preliminary hearing today or that she produce an affidavit. The matter was considered by the Registrar in Chambers and she refused that application. What I am now concerned with is an appeal from the decision of the Registrar. One of the points made by Mrs Grant is that the recital in the Order of the Registrar: "Upon consideration that there is nothing in the grounds of appeal about the falsification of evidence" is factually erroneous because the Notice of Appeal clearly asserts that the Respondent falsified documentation to better its case. I am content to accept that the Registrar was in error when stating that there was nothing in the grounds of appeal about the falsification of evidence.[10]Mrs Grant also is concerned that the Registrar stated that there was no power under the Employment Appeal Tribunal rules to order a potential witness to file an affidavit. That was only one of the directions she was seeking; the alternative was the attendance of Mrs Pryer today. The Order of the Registrar also states:
"AND UPON further consideration that it is of no consequence to this appeal that a witness refused to attend before the Employment Tribunal and that it is the right of any person to so refuse and that it is for the assessment of the court taking the evidence below to make an informed decision as to whether there should be compulsion."
[11]The question that arises for me was whether there was any error of law in the Registrar's refusal to direct that Mrs Pryer should either attend or produce an affidavit. The mere fact that the Registrar was in error about some aspect of the case does not in itself establish that she was in error about the conclusion that she reached, although it does point to her having considered something which was erroneous.[12]This is a matter which ought to have been resolved before or at the hearing before the Employment Tribunal. If there was discontent about any pre-trial Order that had been made, well then it might have resulted in an appeal to the Employment Appeal Tribunal at that stage, so that it could be resolved prior to the hearing on 11 September. There is no doubt that on 11 September the status of Mrs Pryer was that she was under no compulsion to attend. Accepting what Mrs Grant says about having raised the matter on the day, only for it to be deferred and then ignored, if that is right then it was open to Mrs Grant or Mrs Eustace to raise the matter again before the conclusion of the evidence. That apparently was not done.[13]I asked myself the simple question whether it was wrong, in law, for the Registrar to refuse to accede to either of the requests for direction that were made. Notwithstanding her error about one aspect of the matter, in my judgment she was not in error in refusing to direct that Mrs Pryer attend the preliminary hearing or produce an affidavit.[14]In addition to that, it seems to me that what I am being asked to do is really to fill in gaps which are not the subject of satisfactory documentation. In my view there is not a documentary or evidential basis upon which I could safely come to the conclusion that the Registrar had fallen into any error in her decision. If I go further than that and put myself in the position of the Registrar and asked myself whether I would have granted the Orders which were sought, the simple answer is that I would not for the reasons I have given.[15]Accordingly, this appeal in Chambers is dismissed. We shall proceed with Mrs Grant's substantive appeal; that is to say the preliminary hearing of it at 2:05 pm.