PROBE RESEARCH INC v MR S R DALLAL [2004] UKEAT 0480_03_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0480_03_1401Case No Appeal No. UKEAT/0480/03 & UKEAT/0481/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PROBE RESEARCH INCAPPELLANTMR S R DALLALRESPONDENT
Before
His Honour Judge J BurkeDate 14 January 2004
[1]APPEARANCES For the Appellant MR NIGEL GRUNDY (of Counsel) Instructed by: Messrs Withers LLP Solicitors 16 Old Bailey London EC4M 7EG For the Respondent MR PHILIP FLOWER (of Counsel) Instructed by: Messrs Manuel Swadan Solicitors 340 Westend Lane London NW6 1LN HIS HONOUR JUDGE J BURKE QC The History The Appellants in this appeal, Probe Research Inc ("Probe"), are a United States corporation based in New Jersey who provide consultancy services and sell management and analytical material to businesses operating in the telecoms and IT sectors. Most of Probe's business is in the USA; but they also operate in Europe generally and in the United Kingdom in particular.[2]The Respondent, Mr Dallal, is a highly-qualified specialist in the provision of advice and analysis to such businesses. From about early 2000, having previously acted as a freelance consultant in his field, he acted solely for Probe until, on 1 August 2001, he became employed by Probe as a vice-president, working in the United Kingdom, at a salary of $120,000 per annum, payable in sterling at an agreed conversion rate. In addition, he was entitled to a guaranteed minimum bonus of $30,000 for satisfactory performance in the first year of his employment.[3]It was common ground that, because of the need for cutbacks after the events of 11 September 2001 and the bursting of the commercial bubble in telecoms, Mr Dallal agreed with Mr Schnee, the founder and President of Probe, who had originally recruited Mr Dallal, that he would reduce his annual salary to $90,000. There was an issue between the parties as to whether it was also then agreed that Mr Dallal would forego his agreed bonus.[4]However, on 27 August 2002 Mr Schnee told Mr Dallal that he would be dismissed; and his employment ended one month later, on 27 September 2002. On 5 November Mr Dallal presented an Originating Application to the Employment Tribunal in which he claimed that he had been unfairly dismissed and that, in breach of contract, he had not been paid his agreed bonus for the first year of his employment.[5]Having been given an extension of time in which to do so, at the request of their then English solicitors, Probe instructed a second firm of English solicitors who put in a detailed and properly pleaded Notice of Appearance on 9 January 2003. In essence, Probe's case, as set out in that document, was that, as to unfair dismissal, Mr Dallal had performed inadequately and, in particular, had failed to produce any new clients or any new business; the dismissal was on the grounds of incapability and was fair. As to breach of contract, Probe's case was that in or about September 2001 Mr Dallal had agreed to the removal of his agreed bonus and to payment of a bonus only if consulting revenues exceeded a target figure, which had not been achieved.[6]On 21 January 2003 the Tribunal issued directions in Mr Dallal's claim, pursuant to standard procedure. Orders were made as to disclosure and agreement of bundles; and witness statements were ordered to be exchanged not in the usual four weeks but, no doubt because of the fact that Probe was based in the USA, in six weeks – by 4 March 2003, with supplementary statements two weeks thereafter. The Tribunal subsequently found that these directions were all capable of being complied with within the prescribed periods.[7]On 6 February the Tribunal sent out to the parties a Notice of Hearing, informing them that the case would be heard on 26-27 March.[8]Between 13 February and 17 March Probe made 3 successive applications for an adjournment of the hearing date. These applications were made:(i) by Probe's second set of solicitors on 13 February;(ii) by Mr Schnee himself in a faxed letter of 3 March, supported by the solicitors in a letter of 4 March; and(iii) by Mr Schnee in a letter of 17 March couched in somewhat intemperate terms.[9]In his letter of 3 March Mr Schnee put forward the following grounds for seeking an adjournment:(1) Mr Schnee had commitments which excluded his attendance at a hearing in the United Kingdom and which would limit to a minimum the amount of time he could devote to preparation of the defence of the claim.(2) Probe required two essential witnesses to attend the hearing, namely Mr Schnee himself and a Ms Mine who had been Mr Dallal's supervisor. Ms Mine was no longer employed by Probe and could not commit herself to giving evidence until the second half of June, unless her schedule changed.(3) Flying from the USA to the United Kingdom was dangerous in the light of the then political situation.[10]Mr Schnee's letter of 17 March 2003 repeated these points, in stronger language.[11]The first adjournment application was rejected by a Chairman, Mr Metcalf; the second was rejected by the Regional Chairman, Mrs Tribe; it is common ground that the third was also rejected. None of these decisions was the subject of any appeal.[12]Meanwhile, disclosure had taken place pursuant to the directions order. On 4 March Mr Dallal's solicitors offered their witness statements for exchange pursuant to the Tribunal's order; but Probe or their solicitors had not prepared and were not able to offer any witness statements. They were given an extension of time to do so, to 14 March; but, again, no witness statements were produced.[13]On 17 March Mr Dallal's solicitors applied to the Tribunal for an order striking out Probe's Notice of Appearance on the basis that the Tribunal's order as to witness statements had not been complied with. On 18 March that application was refused on the grounds that Probe had to be given an opportunity to show cause why there should not be a striking out order and there was not time before the hearing for that to take place.[14]On 19 March Probe's solicitors asked Mr Dallal's solicitors to agree to exchange of witness statements on 21 March; and Mr Dallal's solicitors agreed to exchange on that day at the latest, while reserving Mr Dallal's right to bring the late exchange of witness statements to the Tribunal's attention.[15]On Friday 21 March two short statements from two witnesses, Ms Verrinder and Mr Tumolillo, were faxed by Probe, or their solicitors, to Mr Dallal's solicitors as was part of a witness statement from Mr Schnee which was about 15 pages long and, eventually, had documents attached to it amounting to about 100 pages, some of which had not been provided as part of disclosure.[16]We were told by Mr Flower, on behalf of Mr Dallal, that a substantial proportion of that witness statement and/or its exhibits was not faxed until Monday 24 March and that what was faxed on 21 March was faxed after the end of ordinary business hours; but the Tribunal proceeded on the basis of exchange on 21 March.[17]On 21 March or 24 March Probe withdrew instructions from their second set of solicitors and instructed a third set of solicitors, Messrs Withers.[18]On 26 March Mr Dallal and his representatives attended the Tribunal, ready to proceed, although they had had Probe's witness statements for only, in effect, two working days. Counsel for Probe attended without any witnesses. He made a further application for an adjournment, based on the inability to attend of the three witnesses in respect of whom witness statements had, belatedly, been provided and of Ms Mine, whose evidence was described by Counsel as crucial but from whom no witness statement had been provided.[19]Counsel made clear his instructions; they were that, if the adjournment was not granted, he would withdraw from the proceedings; no suggestion was made that he would remain to do what he could on behalf of Probe and in particular that he would or wished to or was instructed to be present at or take part in any consideration of remedies, should either of Mr Dallal's claims be successful in principle. Nor was any request made to the Tribunal to consider remedies separately if Mr Dallal's claims were or either of them was successful in principle.[20]Probe's position, as put forward by Counsel, was that if there was no adjournment, Probe's representatives would withdraw.[21]The adjournment application was refused by the Tribunal after argument on both sides; the decision to refuse that application was the subject of a separate decision, signed by the Chairman, Mr Metcalf, and promulgated on 16 April 2003 together with the Tribunal's substantive decision on Mr Dallal's claims.[22]The adjournment having been refused, Counsel for Probe withdrew; and the Tribunal proceeded to hear the case in the absence of any representative on behalf of or any witness from Probe. They concluded that Mr Dallal had been unfairly dismissed and awarded him a maximum compensatory award of £52,600 and a basic award of £375. They also concluded that his claim in breach of contract for non-payment of the guaranteed bonus was well-founded and awarded him £12,500 in respect of that claim. Finally they found that, since 4 March, Probe had behaved unreasonably in their conduct of the case and awarded Mr Dallal £7,050 towards his costs. The Appeal[23]Probe now appeals against the Tribunal's refusal of their application for an adjournment on 26 March and against the Tribunal's substantive decision upon Mr Dallal's claims. Their appeal is presented under four heads.[24]The first is that in refusing an adjournment the Tribunal erred in law.[25]The second is that the Tribunal, having found in favour of Mr Dallal in principle, should not have proceeded to make any decision as to remedies in the absence of Probe.[26]The third is that the Tribunal should not have awarded compensation for unfair dismissal in respect of Mr Dallal's expenses of about £1150 incurred in replacing his laptop computer and his broadband access previously provided by Probe. Because the Tribunal found that the total loss sustained by Mr Dallal was in excess of £67,000 but were obliged to reduce that loss to the maximum figure permitted by statute of £52,600, it is difficult to see how this third head of appeal could have any meaningful effect on the position between the parties; it was, very sensibly, not pursued by Mr Grundy on behalf of Probe in oral argument before us – and we shall say no more about it.[27]Fourthly, Probe appeal against the order for costs. The Adjournment Issue[28]The application for an adjournment made to the Tribunal at the outset of the hearing on 26 March was put on the basis that the three witnesses whose witness statements had been (albeit belatedly) provided by Probe to Mr Dallal's solicitors were all unable to attend, that Ms Mine, who was said to be a crucial witness for Probe, was not present and was not available and that, now that the war with Iraq had started, it was reasonable for USA citizens not to want to travel across the Atlantic.[29]The Tribunal rejected the application for the following reasons:(1) There was no documentary evidence from Ms Mine or her office or her employers as to her unavailability or the reasons for that unavailability; and there was no witness statement from her.(2) There was no corroborative evidence of the inability to attend of any of the witnesses who were said to be unable to attend.(3) Since 13 February Probe's efforts had been devoted not to preparation of the case but to seeking an adjournment.(4) While the Tribunal had sympathy with the concerns caused by the political situation, life had to go on, many people were still flying across the Atlantic and the security situation was not such as to justify witnesses refusing to travel.(5) The Tribunal had little confidence that, if the hearing was to be adjourned to July, the earliest available date, Probe's witnesses would then be willing to attend.(6) Mr Dallal's case was that he continued to suffer from financial difficulties as a result of his dismissal; he wished for an early resolution to his claim; and justice to both parties had to be considered.[30]Mr Grundy accepted that, in rejecting the adjournment application, the Tribunal was exercising a discretion; but, he submitted, the Tribunal had failed to exercise that discretion judicially and in accordance with established principles and had thus deprived Probe of an effective hearing which could not have been achieved without an adjournment.[31]The Notice of Appeal asserted that Probe's rights under Article 6 of the European Convention on Human Rights , made part of our law by the Human Rights Act 1998 , had been breached – which assertion potentially gave rise to an interesting point as to the extent to which a US corporation could rely on Article 6 in the English courts or tribunals; but, while maintaining that Article 6 could be prayed in aid by Probe, Mr Grundy accepted that Article 6 added nothing to established domestic principles and could be put on one side for present purposes.[32]Those principles, it was submitted, are to be derived from the decision of the Court of Appeal in Teinaz v London Borough of Wandsworth [2002] IRLR 721 and the subsequent decision of the Employment Appeal Tribunal in Cornforth v Mid Yorkshire Chamber of Commerce and Industry Ltd [2003] EAT/0385/03.[33]The central facts in Teinaz were these: Dr Teinaz made a complaint to the Employment Tribunal against his employers, the London Borough of Wandsworth, of racial discrimination and unfair dismissal; at a Preliminary Hearing the Tribunal ruled that some of Dr Teinaz's complaints were out of time and ordered that the hearing of the remaining complaints should take place over 7 days starting on 7 June 2000. On 1 June a non-practising barrister acting on behalf of Dr Teinaz applied by letter to the Tribunal seeking an adjournment on the grounds that Dr Teinaz was ill; he enclosed a medical certificate signed by a doctor which set out that Dr Teinaz had been advised, due to severe stress, to remain off work for two weeks from 31 May and not to attend court during the following week. Dr Teinaz did not attend the hearing on 7 June, his representative applied for an adjournment which Wandsworth resisted. The Tribunal concluded that they doubted whether Dr Teinaz's condition truly justified his being absent from the hearing and that he had chosen not to attend the hearing; and they dismissed the adjournment application. After further skirmishing Dr Teinaz's representative withdrew; and the Tribunal dismissed his case in his absence and in the absence of his representative. The Employment Appeal Tribunal allowed Dr Teinaz's appeal against the refusal of an adjournment; and the Court of Appeal upheld the decision of the Employment Appeal Tribunal. Peter Gibson LJ said, at paragraphs 20 and 21 of his judgment, with which judgment Arden LJ and Buckley J agreed: 20 "Before I consider these points in turn, I would make some general observations on adjournments. Every tribunal or court has a discretion to grant an adjournment and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J, giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd [1979] IRLR 361 at p.363 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body. Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment… 21 A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court or to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment."[34]Peter Gibson LJ went on to agree with the Employment Appeal Tribunal that there had been no basis for the Tribunal's doubts as to the genuineness of the medical certificate which Dr Teinaz had put forward and that, in the absence of any such basis, the Tribunal should not have regarded Dr Teinaz's absence from the Tribunal as a matter of choice on his part; thus the Tribunal had taken into account a matter which it ought not to have taken into account.[35]In Cornforth the employers faced a claim of sex discrimination and unfair dismissal, the hearing of which was fixed for 4 June 2003. They sought to vacate that date because a key witness was unable to attend; they did so well in advance of the fixed date. However, the request was refused; and the employers appealed. By the date of the hearing of the appeal the employee had indicated that she did not resist the appeal and had herself applied to the Tribunal for an alternative date. HHJ McMullen QC, sitting alone in the Employment Appeal Tribunal, said, at paragraph 4 of his judgment, that 4 "In those circumstances, it would require very compelling reasons for this case to be driven forward." i.e. for the adjournment which both sides sought to be refused.[36]At paragraph 8 of his judgment he set out matters put forward in the employers' Skeleton Argument, to which the Tribunal Chairman (also sitting alone) should have had regard; those matters included the fact that the unavailable witness was crucial to the employers' case and his absence would deny the employers a fair hearing and would amount to an interference with Article 6 rights, that the application had been made many weeks before the hearing date, a further adjournment of a one-day hearing would not result in significant delay or prejudice and there was no objection from the opposing party. He continued, at paragraph 9, as follows: 9 "I would be loathe to interfere with the exercise of discretion, but it does seem to me that the Chairman may not have borne in mind the judgment of the Court of Appeal in Teinaz and, certainly, the Chairman did not have the advantage which I have of seeing the joint approach of the parties to a postponement." and the appeal was allowed.[37]Relying on the above decisions, Mr Grundy submitted that there were genuine reasons for the absence of Probe's witnesses, that Probe was facing very substantial claims, Probe had dealt properly with pleadings and disclosure and had provided witness statements, including that of Mr Schnee, which was lengthy and contained many exhibits, and that there was no sound basis for the Tribunal's view that Probe did not wish to attend and, in effect, were using concerns arising from the political position as a cloak for that unwillingness. Thus the Tribunal, he submitted, had not asked themselves the right question, namely was the explanation for non-attendance genuine and had, without any supporting material, concluded that Probe did not want to attend.[38]He further submitted that the Tribunal had taken into account irrelevant material by seeking to judge for themselves the effect of the Iraq war and the advice put out by the United States authorities against travelling by air on the minds of the witnesses; the court could only reject the views of the witnesses, it was argued, if those views were perverse because, in the absence of perversity, the witnesses' reason for not attending was genuine.[39]As to Ms Mine, Mr Grundy submitted that Probe had not appreciated that some confirmation of her inability to attend would be needed and that the Tribunal had not, when rejecting the earlier applications for an adjournment, so indicated, despite Mr Schnee's offer to supply any additional information which might be helpful to the Tribunal; and it was submitted that the Tribunal had failed to appreciate that Miss Mine being no longer Probe's employee, Probe had no control over her availability.[40]Mr Flower on behalf of Mr Dallal reminded us that the formulation of the basis on which an appellate court or tribunal could interfere with the exercise of a Tribunal's discretion to grant or refuse an adjournment, set out by the Employment Appeal Tribunal in Bastick v James Lane Ltd (reference above), had been approved by the Court of Appeal in Carter v Credit Change Ltd (reference above). That formulation, at page 782B-C, is in these terms:
"…when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
Mr Flower submitted that, in Teinaz , the decisions of the Employment Appeal Tribunal and Court of Appeal in favour of Dr Teinaz were founded on their conclusion that the Tribunal had taken into account matters which it was improper to take into account, i.e. that the medical certificate was or might not be genuine and that Dr Teinaz was absent from the Tribunal through choice; it was on that basis that the Tribunal's exercise of discretion was held to have been vitiated. It was important that Teinaz was not a case in which the reasonableness of Dr Teinaz's reasons for being absent from the Tribunal was in issue; the focus was on the genuineness of those reasons.[41]The decision in Cornforth was made in circumstances in which the employee agreed that the appeal against the refusal of the adjournment should be allowed and was not represented at the appeal hearing; the employers had acted promptly in seeking an adjournment and had made the application for an adjournment seven weeks prior to the hearing date; there was no serious prejudice or delay which might have been caused by the adjournment sought.[42]Mr Flower further submitted that the Tribunal had not failed to honour any of the principles set out in Teinaz , had taken no irrelevant matters into account, had balanced the arguments in favour of each party against each other and had properly exercised their discretion in a manner which was not susceptible of criticism.[43]Mr Grundy fairly accepted that, for that reason, the present case was, at least to an important degree, to be distinguished from Teinaz ; and he accepted that the reason put forward by a party seeking an adjournment must not only be shown to be genuine but must also be shown to be reasonable and of sufficient strength to justify an adjournment, balancing the interests of both parties and the interests of justice.[44]In our judgment, the Employment Appeal Tribunal in Cornforth did not set out any new statement of principle; and the facts were of a very different nature. It was not a case in which the application for an adjournment was made at the hearing, after three previous applications had been refused, and when none of the witnesses of the party seeking the adjournment were present, including one crucial witness from whom there was not even a witness statement.[45]Teinaz was also, on its facts, a very different case from the present case, in which the Tribunal was considering, at least principally, whether the reasons put forward by Probe for an adjournment were sufficiently strong and persuasive rather than whether they were genuine. No doubt if the Tribunal had been satisfied that, despite the refusal of three adjournment applications (and we repeat that none of the three earlier refusals had been the subject of an appeal) – so that it had been made entirely clear to Probe that the Tribunal did not regard the grounds repeatedly put forward on Probe's behalf as justifying an adjournment – that it was reasonable for none of Probe's witnesses to attend the hearing, the Tribunal might have reached a different result. Whether they were so satisfied was a matter of fact for the Tribunal.[46]So far as the witnesses other than Ms Mine were concerned, it was entirely clear from the three failed adjournment applications that the Tribunal expected Probe to proceed with their case on the date fixed for the hearing; the Tribunal were entitled to look for some confirmatory evidence of any unavailability to attend on the part of Mr Schnee or the other two witnesses in respect of whom witness statements had been served. There was, however, no such evidence; there was only the bare assertion of their unavailability. The Tribunal were entitled to regard this as insufficient.[47]As to Ms Mine, there was no evidence, beyond Mr Schnee's self-serving assertions, that:(i) she had any valuable evidence to give – there was no witness statement from her;(ii) she was willing to give evidence;(iii) she was not able to attend the hearing;(iv) why she was unable to attend the hearing.[48]The Tribunal was entitled to take the view that, in the absence of any further evidence, and in particular any documentary evidence from Ms Mine or her office or her employers as to her unavailability or the reasons for it, her absence was not sufficiently explained.[49]The Tribunal was also entitled, in our judgment, to take the view that Probe had devoted their efforts not to preparation but to securing an adjournment. It is correct that Probe had provided one substantial witness statement and two much less substantial witness statements on 21 March (sent much too late for a hearing commencing only two or three working days later, on 26 March and only after their third adjournment application had failed); but the principal effort would have appeared to the Tribunal to have been directed at increasingly forceful attempts to obtain an adjournment followed, despite the service of the witness statements, by Probe's attending at the hearing without any witnesses and on the basis of instructions to their representatives to withdraw from the proceedings if an adjournment was not granted.[50]In our judgment, the Tribunal did not, in rejecting the adjournment application for the first three of the reasons which we have set out at paragraph 29 above take into account some matter which they ought not to have taken into account or otherwise depart from the general principles set out in Teinaz .[51]The effect of the political situation upon the ability of Probe's witnesses to attend the hearing was a matter which the Tribunal expressly took into account, at paragraph 15 of their decision on the adjournment application; indeed, they approached that issue with express sympathy; but they concluded on balance that an adjournment should not be granted for that reason. It has not been suggested that the Tribunal were factually in error in saying that many people were continuing to fly across the Atlantic. It was for the Tribunal to decide what weight to give to the effects of the political situation. Had the Tribunal failed to consider this issue at all, then, of course, the exercise of their discretion would have been vitiated; but they did not so fail; what they made of it was a matter for them. Their view could not be said, to have been perverse.[52]We do not accept the argument that the Tribunal were taking some irrelevant factor into account in deciding for themselves the effect of the political situation. The Tribunal were entitled to reach their own judgment as to the strength of this aspect of Probe's explanation for the absence of its witnesses – as they were in the case of other aspects of Probe's explanation.[53]All of the above factors went, in our judgment, to the strength and reasonableness of the reasons put forward by Probe for the adjournment which they sought; the Tribunal, for the reasons set out in paragraphs 14 and 15 of their decision on the adjournment application, did not rate those reasons highly. They then balanced Probe's position against that of Mr Dallal in paragraph 17; once again the balancing of competing arguments and interests was a matter for them.[54]Whether the Tribunal in expressing, in paragraph 17 of the adjournment decision, the view that they had little confidence that Probe and their witnesses would attend if the hearing were adjourned to the first available date in July, were referring to their expectation that the travel and commercial difficulties would continue, or to their perception that Probe were reluctant to attend a hearing at all, irrespective of those difficulties, is not clear – although the last sentence of paragraph 14 indicates that the former is more likely; but both lines of reasoning were, in our judgment, relevant and appropriate.[55]The Tribunal were entitled, in our judgment, to regard the history of Probe's handling of Mr Dallal's claim since February as indicating a reluctance on Probe's part to attend the hearing and to meet Mr Dallal's claim. This was, if the Tribunal's reasoning included the view that Probe's application for an adjournment on 26 March was not based on genuine reasons, not a case such as Teinaz in which there was nothing to show that Dr Teinaz had chosen not to attend; it was a case in which there was nothing of the nature of the apparently genuine medical certificate which supported Dr Teinaz's failure to attend. There was material on which the Tribunal could come to the conclusion that the reasons put forward by Probe were not genuine; and it was for the Tribunal to assess that material and reach a factual conclusion upon it.[56]The Skeleton Argument put forward in support of the appeal referred to the late change of solicitors as a basis for the argument that the Tribunal had fallen into error; this was not relied upon orally by Mr Grundy. The Tribunal found at paragraph 11 that, at the end of the week prior to the hearing or at the beginning of the week of the hearing, Probe had withdrawn instructions from their solicitors and had instructed new solicitors. There is no indication that any reason for this change was put before the Tribunal. There was no material, so far as we are aware, to show that the previous solicitors had forced the change upon Probe. In our judgment the unexplained change of solicitors could not have provided support for Probe's application; and the Tribunal have not been shown to have erred in principle in that respect.[57]For these reasons we conclude that, in rejecting Probe's application for an adjournment, the Tribunal made no error of law; and the appeal against the refusal of an adjournment must be dismissed. The Remedies Issue[58]Mr Grundy submitted that the Tribunal had erred in law in failing, when they had decided the issues of unfair dismissal and breach of contract in Mr Dallal's favour, to adjourn before proceeding to consider remedies and in proceeding to consider remedies in the absence of Probe.[59]He argued that it was usual practice for a Tribunal to address and give their judgment on "liability" issues and then to allow the parties to address any issues as to remedy as discreet issues and that, knowing that Probe could not call any evidence on liability, the Tribunal ought to have given Probe an opportunity to cross-examine and present arguments as to remedies.[60]The Skeleton Argument of Mr Ashworth on behalf of Probe referred to Duffy v Yeomans & Partners [1993] IRLR 368. That was a case of a type which is, alas, not entirely unfamiliar to those who sit in the Employment Appeal Tribunal; the parties agreed that they had not appreciated, when the Tribunal heard argument on liability issues, that the Tribunal, which had heard neither evidence nor argument on remedies issues, were going to reach a decision not only as to liability but also as to compensation. The Respondents did not resist the Appellant's appeal which was put forward on the ground that the Tribunal had erred in not giving the parties an opportunity to call evidence and put forward submissions as to compensation. A similar situation arose in Market Force (UK) Ltd v Hunt [2002] IRLR 863 .[61]However, the situation in the present case was very different from that which existed in either of the two authorities to which Mr Ashworth referred in his Skeleton Argument. In this case the Notice of Hearing sent to the parties by the Tribunal on 6 February 2003 said this:
"The application will be heard by an Employment Tribunal at the Employment Tribunals…on Wednesday 26 March 2003 at 10:00am or as soon thereafter as the Tribunal can hear it. 1 It has been given 2 days for its full disposal, including remedy if appropriate."
Thus the parties were clearly informed that, at the hearing fixed for 26 March, the Tribunal would or might be considering liability issues and remedies issues. No application had been made by either party (as is often done) to the Tribunal to treat the hearing on 26 March as one which would deal with liability issues only, leaving remedies open to a subsequent hearing if required.[62]Furthermore, we were told that Mr Dallal in his witness statement made specific reference to his attempts, after his dismissal by Probe, to seek alternative employment by way of mitigation of his loss and that he had disclosed as part of disclosure ordered by the Tribunal, a series of letters evidencing those attempts on his part.[63]Furthermore, Mr Dallal's solicitors had in February served a detailed schedule of loss, claiming inter alia future loss of earnings for a period of 12 months from the date of the hearing.[64]Probe's representatives could not reasonably have been under any illusions, prior to or on 26 March that the Tribunal would deal with remedies at that hearing should liability be established. It was open to Counsel for Probe (assuming he had instructions which would have permitted him to do so) on 26 March either to invite the Tribunal to adjourn any question of remedies should they find in Mr Dallal's favour on liability, so that Probe could be represented, or to indicate to the Tribunal that he wished to be present so as to cross-examine and present arguments as to remedies should the need arise.[65]Neither of these courses, nor any other course which could or might have achieved representation for Probe during any consideration by the Tribunal of remedies issues, was proposed or raised with the Tribunal by Counsel on behalf of Probe. Probe's position was put to the Tribunal, quite simply, on the basis that, in the absence of an adjournment, Probe's representatives would withdraw – as, when the adjournment was refused, they did.[66]We do not accept Mr Grundy's assertion that the Tribunal's usual practice is to address and give judgment on liability issues first and then, if appropriate, to seek further evidence and arguments as to remedies. While in our experience that pattern is often followed in longer cases, it is not universally followed; and in shorter cases the issues are regularly not separated in that way. In this case there was no indication from the Tribunal or from those representing Mr Dallal that the liability and remedies issues would or might be separated.[67]We agree, therefore, with Mr Flower's submissions, firstly, that this ground of appeal is based on the Tribunal's failure to take a procedural step to protect Probe's interests which they were not asked on behalf of Probe to take. In any event, we see no reason why, in the light of clear indications that Mr Dallal was proposing to deal with remedies at the hearing and to invite the Tribunal to consider both liability and remedies in the two days which had been set aside, the Tribunal should have separated liability from remedies of their own motion.[68]Probe were not deprived of an opportunity to make representations as to remedies or to cross-examine on remedies issues by the Tribunal; all they had to do was to instruct Counsel or a solicitor to do that for them; they simply chose not to take that course – or were not advised that that course could or should be taken.[69]Accordingly, we see no error on the part of the Tribunal in this area either. The Costs Issue[70]The Tribunal decided, at paragraph 11 of their substantive decision, that the proceedings had been conducted unreasonably by Probe at least from 4 March, the date on which witness statements ought to have been exchanged, and awarded costs against Probe incurred from that date until the conclusion of the proceedings. They expressed those conclusions, having set out three reasons why they should so conclude which had been advanced by Mr Flower on behalf of Mr Dallal.[71]The first criticism of the Tribunal's decision as to costs put forward by Mr Grundy is that the Tribunal did not set out their reasons for their conclusions and that their decision was, therefore, not (to use an expression adopted by Sedley LJ in Anya v University of Oxford [2001] ICR 847 ) " Meek compliant", i.e. did not satisfy the requirements as to reasons set out in the well-known passage in the passage of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 .[72]Mr Flower accepted that it was no longer open to a court or a tribunal to make an order as to costs without giving reasons; but, he submitted, such reasons may be implicit in the decision of the court or tribunal taken as a whole and do not need to be set out in any elaborate form. He relied upon English v Emery Reimbold & Strick Ltd [2002] 3 AER 385, paragraphs 14, 17, 27 and 28.[73]In our judgment, when paragraph 11 of the Tribunal's substantive decision is read as a whole, it is clearly implicit that the Tribunal reached their conclusion as to costs on the basis of the three reasons why they should do so put forward by Mr Flower. Had the Tribunal expressly used the words "for these reasons" at the beginning of or elsewhere in the sentence "The Tribunal came to the conclusion that the proceedings had been conducted unreasonably…" the position would have been explicit; but as we see it, it was by implication sufficiently clear from paragraph 11, read as a whole, why, on the costs issue, Probe had lost to the extent that they did and why Mr Dallal had won to that extent.[74]The second basis on which the costs decision is attacked is that the Tribunal's conclusion that the proceedings had been conducted unreasonably in relation to the failure to prepare proper witness statements was perverse; three witness statements had been prepared (albeit apparently not dated). Probe were, therefore, taking steps in furtherance of the hearing; Mr Schnee's witness statement was lengthy and supported by substantial documentation.[75]However, in our judgment, the Tribunal were entitled to take the view that Probe had assumed that they could ignore their obligations as to witness statements until after three unsuccessful applications for an adjournment. We have set out the history earlier; an extended 6-week period for exchange of witness statements was provided by the Tribunal; witness statements should have been exchanged on 4 March; they were not because Probe had no witness statements to exchange; the position was the same after an extension of time for such exchange to 14 March; Probe only provided any witness statements on 21 March, after their third adjournment application had failed.[76]While it is correct that Mr Dallal's solicitors agreed to accept witness statements on 21 March, in reality they had little alternative; and they expressly reserved their rights in relation to the late exchange which arose only through Probe's default. Furthermore, there never was any witness statement at all from the witness said to be the most crucial witness for Probe, Ms Mine. This was material which the Tribunal were entitled to regard as evidencing unreasonable conduct from 4 March on Probe's part; whether they did so regard it was a matter for them.[77]The third criticism of the Tribunal's decision as to costs is that the Tribunal, in implicitly accepting the argument put forward by Mr Flower that Probe ought to have realised that they stood no reasonable prospect of success in defending the claims in unfair dismissal and breach of contract, made the error of considering the merits of Probe's case with the advantage of hindsight – and hindsight based on their hearing of one side's case only.[78]As recorded in paragraph 11 of the Tribunal's substantive decision, Mr Flower was submitting that, had witness statements been exchanged as and when they should have been and had Probe given themselves the opportunity before the hearing of considering the witness statements and the documents as a whole, they would have realised that their defence could not succeed. In accepting that argument, the Tribunal do not appear to us to have acted on the basis of hindsight.[79]Probe's Notice of Appearance asserts that the reason for Mr Dallal's dismissal was his incapability and under-performance; but there was no documentary evidence of any performance-related issue arising in the course of Mr Dallal's employment; see paragraph 4.12 of the Tribunal's decision; the documents showed that Mr Schnee held a justifiably good opinion of Mr Dallal; see paragraph 4.9. Mr Schnee's claim that the real reason for the employment of Mr Dallal was to boost sales rather than to provide consultancy services was negated by the documents; see paragraph 4.11. At paragraph 7.1 the Tribunal concluded: 7.1 "Many of the assertions contained in Mr Schnee's statement were undermined by the documentary evidence..."[80]In our judgment there was material, the principal aspects of which we have identified above, which enabled the Tribunal to take the view that had there been a proper assessment of the merits of Probe's case, as revealed by the witness statements and documents, at the stage of timeous exchange of witness statements, Probe would or should have realised that they had scant prospects of success. We see no error on the part of the Tribunal in treating that material as they did.[81]Accordingly we reject the arguments put forward on behalf of Probe that, in reaching their costs decision, the Tribunal erred in law. Conclusion[82]For the reasons which we have set out, Probe's appeal is dismissed.