MERROW PARK SURGERY v MRS B WALLIS [2003] UKEAT 0361_03_2606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0361_03_2606Case No Appeal No. EAT/0361/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MERROW PARK SURGERYAPPELLANTMRS B WALLISRESPONDENT
Before
Mrs Justice CoxDate 26 June 2003
[1]APPEARANCES For the Appellants MR RICHARD LEIPER (of Counsel) Messrs Radcliffes Le Brasseur Solicitors 5 Great College Street Westminster London SW1P 3SJ For the Respondent No appearance or representation by or on behalf of the Respondent THE HONOURABLE MRS JUSTICE COX QC This is an appeal against an Interlocutory Decision of the Employment Tribunal at London South, in which a Chairman has refused an application made by the Appellants for an adjournment of the hearing of the case, in which they are the named Respondents. The Appellants are represented today by Mr Leiper, of Counsel. No one is here on behalf of the Applicant, but her representatives have sent a letter to this Appeal Tribunal, indicating that although they resist the appeal, in order to save costs they will neither be attending nor submitting any Skeleton Argument. They contend in that letter that the Chairman exercised his discretion judicially in refusing the application for an adjournment, and that he took all relevant matters into account.[2]There is an unfortunate procedural history to this matter, but the key facts are these. The Applicant has issued a complaint, dated 3 May 2002, against(1) "The Merrow Park Surgery" and(2) Dr Alan Tutin, who is one of the partners at the surgery, a General Medical Practice in Surrey.[3]There are two aspects to her complaint. Firstly she makes serious complaints of sexual harassment and therefore of unlawful sexual discrimination by Dr Tutin during her employment there as the Practice Manager. Secondly she complains of constructive unfair dismissal alleging that the Appellants/Respondents failed to deal properly with the grievance she issued and generally made her position so untenable that she had to resign,which she did in February 2002.[4]All the allegations are denied and paragraph 1 of the Notice of Appearance correctly observes that:
"The correct Respondents in these proceedings are Dr Alan F Tutin, Dr (Mrs) M Tutin, Dr J Sender, Dr C F Han, Dr S L Boucher and H L Grisewood"
The Notice of Appearance on its face names the Respondents not as "Merrow Park Surgery" but as Dr Alan Tutin and others.[5]A detailed defence to the Applicant's allegations is pleaded, and in particular at paragraphs 5 - 9, references are made to various meetings of the Respondents and to decisions and action taken by them all, as partners, in relation to the Applicant over the relevant period. The case was originally fixed in July 2002, without reference to the parties, for two days. Subsequently all parties agreed that two days was insufficient for the hearing and a letter was sent to the Tribunal on 19 December 2002, requesting as a matter of consent that it be re-listed as a four day hearing.[6]On 23 January 2003, the Tribunal fixed a four day hearing, without reference to the parties or requests for any dates to avoid, the hearing to start on 11 August 2003. On 12 February 2003, the Appellants sought an adjournment of the hearing, due to problems essentially with the availability of Dr Sender, one of the Respondents in the case. Documentation in the bundle, which was before the Tribunal, confirms his absence for the four days of the hearing on his pre-booked annual family holiday, a holiday which had been booked in January before this case was fixed.[7]On 21 February, the Chairman refused the application, giving as his reasons:
"Dr and Mrs Tutin appear to be the main witnesses in this case and are available. Dr Sender's evidence should be reduced to statement and submitted for agreement."
The Appellants issued their Notice of Appeal on 28 February 2003, after the Decision was received. However there have since been further developments. Firstly, on 1 April, the Appellants renewed the application to adjourn, raising the possibility of an earlier hearing date, being conscious of the need to avoid delay in hearing the matter. This was refused on 10 April, the Chairman stating that the application was made too late and that an adjournment to a later date would be a delay probably to early 2004, which was not in the interests of justice. No reference was made by him to the possibility of an earlier hearing date.[8]Secondly, an Order was made by this Appeal Tribunal on 26 March, staying this appeal, pending a suggested review by the Chairman of his Decision on application by the Appellants. Such an application was made by them on 8 April. Although the Chairman initially suggested that there was no power to enter into a review, it appears that he accepted the suggestion of this Appeal Tribunal to consider the matter and deal with the application for a review, and Extended Reasons for refusing the application were sent to the parties and entered in the Register on 2 May 2003.[9]In those Reasons the Chairman makes reference, entirely properly, to the need to make full use of the Tribunal's and staff time in a cost-effective fashion, to the difficulties in listing four day hearings and to the importance of ensuring that evidence is heard whilst recollections are still reasonably fresh and clear. At paragraph 4, however, he states as follows:
"I remain of the view that of the Respondent's witnesses, Dr Tutin is plainly the principal witness and his wife is arguably the next most important witness. I do not see any reference to Dr Sender either in the Originating Application or in the Notice of Appearance. The case appears to be a case solely and expressly alleging "sexual harassment" by Dr Tutin."
This is a view which he repeats at paragraph 9 of his Reasons in concluding that the interests of justice do not require a review in this case.[10]It will be rare indeed, as Mr Leiper acknowledges, for this Appeal Tribunal to interfere with the exercise of discretion by a Chairman on an interlocutory matter, particularly one relating to the listing of cases and requests for adjournments. Mr Leiper has referred me to a recent decision of the Court of Appeal, namely Teinaz -v- The London Borough of Wandsworth [2002] IRLR 721 , in which the Court of Appeal re-stated the general principles which apply in relation to the exercise of discretion and, in particular, there are relevant references at paragraphs 20 and 21 in the judgment of Lord Justice Peter Gibson and paragraphs 35 and 36 in the judgment of Lady Justice Arden. He also referred me to the case of Andreou -v The Lord Chancellor's Department [2002] IRLR 728 , in which the same principles were referred to but the case was clearly different on its facts from those in Teinaz .[11]I recognise, as the Chairman did in this case, that the listing of cases so as both to ensure the proper and efficient use of Tribunals' time, and to accommodate the needs of the parties, is an extremely difficult task. It is also highly desirable, as the Chairman pointed out, that contested cases in Employment Tribunals should be heard as soon as they possibly can be, in particular cases involving contested facts, such as the present one, and that it is in the interests of all parties and ultimately, of course, in the interests of justice, that delay should be avoided. These factors were properly weighed in the balance by the Chairman in arriving at his decision to refuse the application. However, it seems to me that the other side of the scales required a recognition on the Chairman's part of the following: firstly, that Dr Sender is himself a Respondent to the Applicant's complaints and therefore entitled to be present and to give evidence in the matter if he so wishes.[12]Secondly, the Applicant's complaint is not only a complaint of sexual harassment against Dr Tutin, but a claim for constructive unfair dismissal, which is brought against all the Respondents as partners in the Practice, including Dr Sender. He is described by the Appellants as a key witness in this respect.[13]In describing the complaint as a case, "solely and expressly alleging sexual harassment against Dr Tutin", the Chairman appears to me to have overlooked entirely the second main plank of the Applicant's complaint. Further, in concluding that of the Appellant's witnesses "Dr Tutin is plainly the principal witness and his wife arguably the next most important witness", the Chairman again overlooked the complaint of constructive unfair dismissal. He has also expressed that view in the face of the Appellant's description of Dr Sender as a key witness, when the Notice of Appearance contains details of relevant matters which involve all the Respondent Partners and without any examination of whether the Appellant's assessment of him as a key witness is justified.[14]The Chairman's direction, in his Decision dated 21 February, is for Dr Sender's evidence to be reduced to a statement and submitted for agreement. For a Respondent to proceedings who wishes to attend and defend himself, this would in any event, in my view, rarely be an appropriate solution. Further, I accept Mr Leiper's submission that it is almost inevitable that less weight will be placed upon evidence which has not been tested by cross-examination, which will obviously prejudice the Appellants generally, and Dr Sender personally, as a Respondent to the complaint.[15]In his Skeleton Argument, Mr Leiper has referred to the reference at page 10 of the handbook "Hearings at Employment Tribunals", where it states that:
"at Hearings, it is rarely satisfactory to rely solely on the contents of signed statements in the absence of those who make the statement."
I consider that in exercising his discretion to refuse this application, the Chairman failed to take into account matters which were clearly relevant and important matters and, in the exceptional circumstances of this case, this appeal is therefore allowed and the present dates in August 2003, for which this hearing is listed, should be vacated.[16]I am mindful of the unfortunate delays which have already occurred in this case, since its original listing in January this year, and of the need to ensure that this case is heard as soon as possible. I am also mindful, however, of the problems posed for the Regional Chairman in listing cases. It is not appropriate for me to direct the Regional Chairman to take any particular course but I have noted the Chairman's reference in paragraph 8 of the Extended Reasons to the rare occasions on which it is possible to place a multi-day case into the rolling listing cycle on an expedited basis.[17]I do, therefore, recommend that in the unusual and unfortunate circumstances of this case, the Regional Chairman do take whatever steps he considers appropriate to ensure both that this case is heard as soon as possible and that regard is had to the availability of witnesses before the matter is fixed, in order to avoid any repetition of the present problems.