LONDON GENERAL TRANSPORT SERVICES LIMITED v MR G AFFLICK & OTHERS [2003] UKEAT 0520_03_1107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0520_03_1107Case No Appeal No. EAT/0520/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON GENERAL TRANSPORT SERVICES LIMITEDAPPELLANTMR G AFFLICK & OTHERSRESPONDENT
Before
His Honour Judge D M LevyDate 11 July 2003
[1]APPEARANCES For the Appellant MR RUSSELL BAILEY (of Counsel) Instructed By: Messrs Moorhead James Solicitors 21 New Fetter Lane London EC4A 1AW For the Respondents MR JOHN NECKLES (Representative) Public Transport Staff Consortium (PTSC) 31B Mervan Road Brixton London SW2 1DP JUDGE D M LEVY QC: We have before us today an application by London General Transport Services Limited (the Appellant) to vacate a Hearing date fixed for Monday, 14 July 2003. Then an application by Mr Afflick and Others (the Respondents) is scheduled to be heard pursuant to an order made by the Chairman, Mr Peters, at a case management conference which took place on 1 May 2003.[2]A letter was sent to the Appellant's solicitors on 8 May by the Tribunal in these terms:
"A case management conference took place on 1 May conducted by Mr R Peters. The [Respondents] were represented by Mr J Neckles. There was no attendance by and on behalf of the [Appellants]. Mr Peters was informed by Mr Neckles that the outcome of these cases did not depend upon the outcome of the case in Henry and Others v London General Transport Services Limited and in those circumstances it was considered appropriate to list these cases for hearing. Accordingly directions were made and the case was listed for a one day hearing on 14 July 2003 before any Tribunal not necessarily the same Tribunal as heard the case of Henry and Others. A copy of the Tribunal's order is enclosed. It is understood that Mr Neckles will be writing to the Tribunal with a list of [Respondents] who wish to withdraw their claims."
[3]The reference to Henry and Others refers back to an order made by another Chairman, Mr C P Baron, sitting in Ashford, (Mr Peters sat at West Croydon), as long ago as 30 April 2001, and a letter dated 17 August 2001 which, like the Respondent's present application to the Employment Tribunal, arise from the privatisation of London Buses.[4]The August letter stated that Mr Baron had been reviewing the position in these cases and set out his provisional conclusions on which he requested any comments before 7 September 2001. Subject to comments, Mr Baron appears to have suggested the Respondent's Application should not be listed until litigation in Henry had reached a final conclusion.[5]As we have heard nothing to suggest that any comments were made before 7 September 2001, it appears that Mr Baron had directed that Afflick should not have been heard until the final conclusion in Henry . We understand that the final conclusion in Henry has not yet been reached. As a result of a decision by the House of Lords, Henry is to be re-heard by an Employment Tribunal in September of this year.[6]Mr Peters was apparently told by Mr Neckles, that the outcome of the Neckles case was completely divorced from the outcome of the case in Henry . This was not apparently the view of Mr Baron.[7]In reply to the Notification of the learned Chairman's Order, the Appellant's solicitors wrote on 22 May 2002 to the Regional Secretary of the Tribunal in respect of Mr Peters' order, giving several reasons why it should be reviewed. Among the reasons was that it was not on the same grounds as Henry and also that the Hearing of Afflick itself would take much longer than the one day of 14 July which the Chairman had allocated for it. On 3 June 2003, the Tribunal sent a copy of the letter of 22 May 2003 to the Respondents and sought comments by 17 June 2003. By letter dated 17 June 2003, the Respondents commented. By letter dated 19 June, the Appellant's solicitors wrote to the Tribunal. The letter stated that the solicitors has been told by the Tribunal that no comments from the Respondents had been received by the date sought and, inter alia, asked for the Hearing, set for 14 July, to be postponed.[8]Not until 26 June was a reply made by the Tribunal to the Appellant's solicitors. That stated that the date would stand but gave no reason. On 7 July 2003 the Appellants sought reasons or alternatively a review of that decision. A reply in these terms was sent by fax the same day:- "A Chairman of the Tribunals, Mr R Peters, has asked me to write to you. The Order dated 7 May 2003 is an interlocutory order, not a decision. As such no reasons are required to be given and the order is not capable of review. However the Chairman can reconsider any aspect of the order on an application and the Chairman treated your letter as such an application. The case is listed for 14 July and the Chairman considers that the case should proceed to that listing. Your application may be reviewed at that hearing."[9]Our attention has been drawn both by Mr Bailey, who appears for the Appellant, and by Mr Neckles, who appears for the Respondent, to Rules for the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 Schedule 1. Mr Bailey has drawn our particular attention to Rule 4(7):
"Where a requirement has been imposed under paragraph (1) or (5) – (a) on a party in his absence (b) ... that party or person may apply to the tribunal by notice to the Secretary to vary or set aside the requirement. Such notice shall be given before the time at which or, as the case may be, the expiration of the time within which the requirement is to be complied with, and the Secretary shall give notice of the application to each party, or where applicable, each party other than the party making the application."
[10]We have been referred to other parts of the case management rules and to the decision in Goldman Sachs v Montali [2002] ICR 1251 .[11]Mr Bailey has submitted that if Mr Peters had regard to the decision of Mr Baron, he would not have made the order which he made on the day in the absence of the other Appellant. Further, looking at the application in the round, given(i) the absence of the Appellant at the Hearing before Mr Peters in May;(ii) the delay in the reply to the letter of 26 June by the Tribunal; and(iii) the fact that the Chairman does not seem to have taken any regard to the fact that the Appellant's solicitors had informed him that a one day hearing would be inadequate, the decision of the Chairman not to postpone the hearing of 14 July 2003 was perverse. It is accepted by Mr Bailey that we should hesitate to interfere with an order made by a Chairman in view of his wide case management powers.[12]In the circumstances of this case, we are satisfied that it would be unfair and unjust to allow the Hearing of Mr Neckles to commence on Monday. We bear in mind the submission of Mr Neckles that this would mean a further delay to his clients who have been waiting a long time for their cases to be heard, but there was, we observe, no appeal from the decision made by the Chairman, Mr Bond, that the Afflick case should come on when the Henry case was concluded.[13]In the circumstances, we will direct that the Hearing of the Afflick case at the Tribunal on Monday should be vacated.