MR R T VAN DIEREN v MR & MRS G & C EDWARDS & MRS C VAN DIEREN-HULSMAN [2006] UKEAT 0166_66_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0166_66_2303Case No Appeal No. UKEAT/0166/66Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R T VAN DIERENAPPELLANTMR & MRS G & C EDWARDS & MRS C VAN DIEREN-HULSMANRESPONDENT
Before
His Honour Judge BurkeDate 23 March 2006
[1]APPEARANCES For the Appellant MR R T VAN DIEREN (The Appellant in Person) For the First Respondent For the Second Respondent MR M KEENAN (Solicitor) MRS C VAN DIEREN-HULSMAN (The Second Respondent in Person) SUMMARY Unfair Dismissal The Appellant was dismissed for alleged gross misconduct. The Employment Tribunal held that his ET1 was presented one day late and that it was reasonably practicable to have presented it in time. They rejected his claim to be entitled to an extension of time under Rule 15 of the Dispute Regulations 2004 on the grounds that he had not attended an appeal meeting and therefore was in breach of the Standard Grievance Procedure, 2002 Act Schedule 2, Part 2. Held on appeal:(i) that the Standard Dismissal and Disciplinary Procedure and not the Grievance Procedure applied: see Regulation 3(1) and 6(5);(ii) that the Tribunal ought therefore to have considered Regulation 15(2) and not Regulation 15(3) in deciding whether the extension of time in regulation 15(i) applied; Regulation 15(2) raised different factual questions.(iii) That it was possible that on the facts the Appellant might not have been in breach of the Disciplinary and Dismissal Procedure by virtue of Regulation 11(1) and (3) or Regulation 13(1);(iv) that therefore the time extension issue should be remitted to the Tribunal. HIS HONOUR JUDGE BURKE QC The History This appeal raises another problem arising from the Dispute Resolutions provisions in Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 , which I shall call the 2004 Regulations.[2]The Appellant, Mr Van Dieren, appeals against the decision of the Employment Tribunal, sitting at Shrewsbury in the person of the Chairman, Mrs Warren (sitting alone) and sent to the parties with written reasons on 3 February 2006 after a hearing on 7 November 2005.[3]The decision was that Mr Van Dieren's claim against his employers, Mr and Mrs G & C Edwards, was out of time and was therefore dismissed. The claim of Mr Van Dieren's wife was held not to be out of time and is intended to be the subject of a full merits hearing before the Tribunal on 28 March i.e. next Tuesday (which is now only 2½ working days away).[4]HHJ Clark ordered, on 14 March 2006 when Mr Van Dieren's Notice of Appeal, dated 7 March was before him at the sift stage of the Employment Appeal Tribunal's procedures, that Mr Van Dieren's appeal should be expedited so as to be heard before 28 March; hence it has come before me today, 23 March.[5]It is not in dispute that Mr and Mrs Van Dieren were, from 1998, both employed by Mr and Mrs Edwards on a caravan site owned by Mr and Mrs Edwards near Holywell in North Wales. Mr Van Dieren claims that he was a manager. Mr Edwards claims that Mr Van Dieren was a caretaker. That issue is irrelevant for present purposes. Mr Van Dieren's case is that, in 2004, Mr Edwards decided to take over the running of the caravan park himself and that, for some time before, he had been behaving towards Mr and Mrs Van Dieren in an unreasonable manner and, indeed, a manner which could be described in stronger terms. Mr Edwards and his wife claim that Mr Van Dieren was guilty of gross misconduct in his management or caretaking of the caravan site and says the same about Mrs Van Dieren.[6]On 27 April 2005, Mr and Mr Edwards wrote to Mr Van Dieren, inviting him to a disciplinary meeting on 30 April. The letter set out, in general terms, the nature of the Edwards' complaints against Mr Van Dieren and identified one individual transaction in which it was claimed that Mr Van Dieren had behaved improperly and disloyally towards his employers. Mrs Van Dieren's position is not in issue in this appeal, but a similar letter was sent to her.[7]It is not clear from the Tribunal's decision whether Mr Van Dieren attended the disciplinary meeting which that letter from the Edwards invited them to attend (which was to take place on 30 April), but I understand it to be common ground that he did not. Mr and Mrs Van Dieren were both summarily dismissed on 18 May. The reason for their dismissal is said to have been their gross misconduct.[8]On 26 May, Mr and Mrs Van Dieren sent to Mr and Mrs Edwards a letter or letters indicating that they were appealing against the dismissal. The Edwards sent a reply, dated 1 June inviting Mr and Mrs Van Dieren to a meeting on 4 June to discuss the appeal on 4 June. The letter asked Mr and Mrs Van Dieren as an alternative to attending the meeting to confirm that they would prefer that consideration be given to the appeal on the basis of the letter which put forward the appeal.[9]Mr Van Dieren did not attend the meeting on 4 June. Mrs Van Dieren did. Although the Tribunal make no finding about this either, it appears to be agreed, as I have understood what I have been told by Mr Van Dieren, who has appeared unrepresented before me and Mr Keenan who has appeared on behalf of the Edwards, as he did before the Tribunal, that there was no formal response either in writing or orally to the appeal, although it is implicit in the history that the Edwards rejected that appeal.[10]Mr Van Dieren presented his claim that he had been unfairly dismissed to the Tribunal on 18 August 2005. That was one day over the three month time limit set out in s111 of the Employment Rights Act 1996 . The dismissal had taken place on 18 May; to be within that limit the claim had to be presented by the close of 17 August. However, the 2004 Regulations provide that, in certain circumstances, that time limit is extended pursuant to Regulation 15 for a period of three months beginning with the day after the day on which the time limit would otherwise have expired. Mr Van Dieren and Mrs Van Dieren asserted at the hearing before the Tribunal that in each case, the time limit was extended because their cases fell within Regulation 15. The Tribunal decided that the time limit was extended in Mrs Van Dieren's case but not in Mr Van Dieren's case, the material factual difference between the two cases being that Mrs Van Dieren had, but Mr Van Dieren had not, attended the appeal meeting on 4 June 2005. The Relevant Statutory Provisions[11]It is, I fear, necessary to set out the relevant statutory provisions in some detail. The Employment Act 2002 provides by s29(1) that Schedule 2 to that Act should have effect; and Schedule 2 came into effect on 1 October 2004 before any of the dates which are relevant to this appeal. Schedule 2 is divided into four parts. Part 1 sets out two dismissal and disciplinary procedures, the standard procedure and the modified procedure, the latter does not apply on any view of this case. Part 2 sets out two grievance procedures. It, too, contains a standard and a modified procedure.[12]The way in which Schedule 2 is to be applied is to be found in the 2004 Regulations. Regulation 3(1) of the 2004 Regulations provides as follows:
"Subject to paragraph 2 and Regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee"
. Regulation 3(2) sets out when the modified dismissal procedure applies; it is not necessary to go into the details of its application. Regulation 4 and 5 contain provisions setting out circumstances in which the dismissal and disciplinary procedures do not apply and in which they are to be treated as having been complied with; none of those provisions is relevant in this case.[13]Regulations 6 to 9 contain provisions for the application of the grievance procedures and as to circumstances in which they are deemed to have been complied with. I refer first of all to Regulation 6(1) which provides as follows:
"(1) The grievance procedures apply in accordance with paragraph (2)-(7) of this Regulation in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an Employment Tribunal under a jurisdiction listed in Schedule 3 or 4 or could do so if the action took place"
. Regulations 6(2) and 6(3) set out when the standard or the modified grievance procedure apply; and it is not necessary to refer to them or to Regulation 6(4), but I must refer to Regulation 6(5) which is as follows:
"(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee"
. Regulation 6(6) provides for a situation in which, although the employer has taken or is contemplating relevant disciplinary action, a grievance procedure may apply; but it does not include dismissal within its scope because relevant disciplinary action is defined by Regulation 2(1) as action short of dismissal.[14]It is necessary next to go to Regulation 11(2) which provides:
"Where the applicable statutory procedure has been commenced, the circumstances specified in paragraph 3 apply and in consequence, a party does not comply with the subsequent requirement of the procedure, the parties should be treated as having complied with the procedure"
. The circumstances specified in paragraph 3 include at 3(b) that the party who has allegedly failed to comply with a statutory procedure has been subjected to harassment and has reasonable grounds to believe that complying with the procedure would result in his being subjected to further harassment; and in 11(4) harassment is defined as meaning conduct which has the purpose or effect of (a) violating the person's dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him; but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect.[15]I go next to Regulation 13 which provides as follows: "(1) Without prejudice to Regulation 11(2) and (3)(c) if it is not reasonably practicable for (a) the employee…to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee…shall not be treated as having failed to comply with that requirement of the procedure".[16]Finally, in looking at the Regulations, I turn to Regulation 15 headed "Extension of Time Limits". " Extension of time limits 15.(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and - (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal - (a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or (b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit".[17]I must now go back to Schedule 2 of the Act so that the requirements of the procedures can, in broad terms, be seen. The standard dismissal and disciplinary procedure, set out in Part 1 of Schedule 2, contains three steps, each of which is sub-divided into what might be regarded as sub-steps. Under step 1, the employer is required to set out in writing the conduct or characteristics or other circumstances which lead him to contemplate dismissing or taking disciplinary action against the employee, to send that document or a copy of it to the employee and to invite the employee to attend a meeting to discuss the matter.[18]Step 2 requires that such meeting must take place before action is taken other than by way of suspension and that the employee must take all reasonable steps to attend the meeting, after which the employer must inform the employee of his decision and notify him of the right to appeal against the decision if not satisfied with it.[19]Step 3 relates to appeal. It requires the employee, if he wishes to appeal, to inform the employer. The employer is then required to invite the employee to attend a further meeting which the employee must take all reasonable steps to attend. After the appeal meeting, the employer must inform the employee of his final decision.[20]The standard grievance procedure mirrors, to a considerable extent, the standard dismissal and disciplinary procedure; but because it is the employee who initiates the grievance, it starts from the obligation of the employee, in step 1, to set out his grievance in writing and send it or a copy of it to the employer. Then the employer must invite the employee to a meeting which the employee must take all reasonable steps to attend; after the meeting, the employer must inform the employee of his decision and notify him of the right to appeal. If the employee wishes to appeal, he must inform the employer; and, once informed, the employer must invite the employee to attend a further meeting which the employee must take all reasonable steps to attend; after that meeting, the employer must inform the employee of his final decision. The Tribunal's Conclusions[21]The Tribunal, at paragraphs 4 and 5 of the judgment, found (as was not in dispute) that Mr Van Dieren had been summarily dismissed for gross misconduct on 18 May. The judgment continued as follows: "4. The standard grievance procedure set out in the Employment Act 2002 Schedule 2 Part II applied. Mr Van Dieren had to set out his grievance in writing and send it to his employer which he did. The employer then should invite the employee to attend a meeting to discuss that grievance. That meeting was set for 4 June. The employee must take all reasonable steps to attend the meeting. At the meeting, the employer has a responsibility, which I will deal with in relation to Mrs Van Dieren. 5. In relation to Mr Van Dieren he was under an obligation to take all reasonable steps to attend the meeting. I am satisfied that on that particular date, 4 June, he probably had a good reason for not attending the meeting. In those circumstances he should have taken steps to re-arrange it and it is quite clear from the evidence that he did not intend doing so, as he felt it would be without benefit to him".[22]At paragraph 6, the judgment referred to Regulation 15(3)(b), saying that, if Mr Van Dieren had complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within the normal time limits, he would have been entitled to a three-month extension; but he had not so complied because he had not attended the appeal meeting. Therefore, the Edwards were under no obligation to do anything further and thus no extension of time was available. The position in the case of Mrs Van Dieren was different because she had attended the meeting; and it appears that, once the meeting had taken place, the Edwards did not carry out the last step required in the grievance procedure (or the disciplinary and dismissal procedure) of notifying Mrs Van Dieren of the result of the appeal.[23]Accordingly, the Tribunal dismissed Mr Van Dieren's claim as being out of time; but Mrs Van Dieren's claim, which had been presented on the same day as Mr Van Dieren's claim, survived; hence the hearing fixed for next week. Did The Tribunal Err?[24]Mr Van Dieren, in his Notice of Appeal, makes three points. They are that:-(1) the employers had acted unreasonably over a considerable period of time throughout previous meetings before the time at which any of the statutory procedures became engaged. Therefore, he submits, he was justified in refusing to attend the further meetings, either the disciplinary meeting or the appeal meeting, which he was invited by the Edwards to attend on the occasions which I have described above;(2) he submits that he could not be expected to attend or punished for not attending the appeal meeting when the invitation to attend indicated that the Edwards were willing to consider his appeal on paper;(3) the employers, Mr and Mrs Edwards, had not themselves complied with the procedure because they had not notified the result of the appeal or informed Mr Van Dieren of that result.[25]The first of those points can only assist Mr Van Dieren in a very limited way to which I will come later in this judgment. There is nothing in the Regulations which excuses or exempts an employee from the obligations set out in Schedule 2 of the Act on the basis that, at previous meetings, an employer has behaved unreasonably. There are limited exemptions in Rules 11 and 13, but neither operates where what is complained of by the employee is no more than unreasonable behaviour. The fact that there are the limited exemptions in Regulations 11 and 13: indicates that the Regulations operate and were intended to operate in a way in which there should be those limited exemptions and no others.[26]As to the second point, that too does not assist Mr Van Dieren. There is nothing in the Regulations which exempts an employee from the obligation to attend a meeting called under either the grievance or the disciplinary procedure on the basis of that the employer had offered to consider the matter in writing, however unfortunate that may be.[27]As to the third ground, if the employers had failed to comply with the requirement of an applicable statutory procedure before the meeting or either of the meetings, which Mr Van Dieren did not attend, then pursuant to Rule 12(1), which deals with failures to comply, the obligation of Mr Van Dieren to attend either of those meetings would have been removed; but no such failure is alleged to have occurred prior to either meeting. The only failure on the part of the employers which is alleged in this case is that of failing to inform Mr Van Dieren of the result of the appeal; and such a failure to comply, if it occurred, could not have removed the earlier obligation of Mr Van Dieren to attend the meeting. Thus, I do not regard any of Mr Van Dieren's arguments, as so far set out in this judgment, as undermining the decision of the Tribunal.[28]However, when I first looked at the papers in this appeal, it seemed to me immediately that this was not a case to which the grievance procedures applied at all and that the procedure which applied in this case was the disciplinary and dismissal procedure. It is entirely clear, in my judgment that Mr and Mrs Edwards, as can be seen from their letter of 27 April, were contemplating dismissal or relevant disciplinary action i.e. action short of dismissal based on what they at least asserted to be misconduct. The meeting of 30 April was to be a formal disciplinary meeting. The result of that meeting was dismissal, on 18 May. On 26 May, Mr and Mrs Van Dieren appealed against the dismissal and the meeting on 4 June was to be an appeal meeting.[29]In those circumstances, the effect of Regulation 6(5) was that neither of the grievance procedures applied because in so far as by appealing Mr and Mrs Van Dieren were expressing a grievance, their grievance was that the Edwards had dismissed them. There having been a dismissal, Regulation 6(6) did not come into play. In contrast, Regulation 3(1) did come into play. As soon as the letter of 27 April was sent, it was clear that the Edwards were contemplating dismissing or taking relevant disciplinary action against Mr & Mrs Van Dieren. The situation fell within Regulation 3(1); and the standard dismissal and disciplinary procedure applied.[30]Mr Keenan tells me that, before the Tribunal, he did not rely on the grievance procedures in Part 2 of Schedule 2 of the Act but upon the disciplinary and dismissal procedures, i.e. the standard dismissal and disciplinary procedure; and it is something of a mystery, which has not been resolved, to understand why the Tribunal concluded that what was in issue was the standard grievance procedure as opposed to the standard dismissal and disciplinary procedure. It might be said that, apart from the fact that the process in each case is initiated by the other party, the disciplinary procedure being initiated by the employer and the grievance procedure by the employee, there is not much difference between the two. But there is a difference in terms of the provisions as to the extension of time. The Tribunal, as is clear from paragraph 6 of the judgment, was, in considering extension of time focusing on Regulation 15(3) which, pursuant to Regulation 15(1)(b), applies where the applicable statutory procedure is either of the grievance procedures; but the Tribunal should have been focusing on Regulation 15(2), which applies by virtue of Regulation 15(1)(a) where either of the dismissal and disciplinary procedures is the applicable statutory procedure.[31]If, on the facts, the outcome of the application of Regulation 15(2) was bound to lead to the same result as the application of Regulation 15(3), I would not hesitate, even though it appears that a mistake was made as to the route by which the Tribunal reached its result in Mr Van Dieren's case, to dismiss the appeal on the basis, if it were crystal clear that it was correct to do so, that Mr Van Dieren could not succeed under Regulation 15(2); but that is not quite the situation.[32]The extension of time set out within Regulation 15(1) only arises, in the case of a dismissal and disciplinary procedure, if the circumstances specified in Regulation 15(2) apply. Those circumstances are that(1) the employee has presented his complaint to the Tribunal after the expiry of the normal time limit; and(2) the employee has reasonable grounds for believing, when the time limit expires, that a dismissal or disciplinary procedure was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint.[33]There is no difficulty with the first of those circumstances. The requirement is, in fact, the same as the first requirement in Regulation 15(3) and Mr Van Dieren's complaint was, indeed, presented after the expiry of the normal time limit even if only, as he says, by a matter of hours.[34]The second requirement needs more careful consideration. It appears, applied to the facts of this case, to be that as at 17 August when the normal time limit expired, Mr Van Dieren had reasonable grounds for believing that a statutory (for there was no other) dismissal or disciplinary procedure was being followed in respect of matters that consisted of or included the substance of the Tribunal complaint. Those last words create no problem; whatever was going on was in relation to matters that consisted or included the substance of the Tribunal complaint. What may be debateable is whether, at the relevant time, i.e. 17 August, Mr Van Dieren had reasonable grounds for believing that a dismissal and disciplinary procedure was being followed. That question seems to me potentially to turn upon whether, at that time, that procedure had come to an end or had not come to an end. If Mr Van Dieren was under an obligation, under the dismissal and disciplinary procedure, to attend the meeting arranged for the hearing of the appeal on 4 June, it is plain that he did not take all reasonable steps to attend it; that is what the Tribunal decided; and it is easy to see why. If, therefore, he was in breach of the obligation to take all reasonable steps to attend it, Regulation 12 has the effect that the Edwards were discharged from any further obligation under the procedure. The procedure had therefore come to an end and Mr Van Dieren might have considerable difficulty in establishing that he had reasonable grounds for believing that it was still continuing. It would not help him to say that he was ignorant of the Regulations: for ignorance of regulations or any other provision of the law cannot assist.[35]However, Mr Keenan was plainly anxious, with Mr Van Dieren being unrepresented, to do his professional duty and to invite me in so doing to consider whether Mr Van Dieren's case might come within Regulation 13, although Mr Keenan did not accept that it did. I gave Mr Van Dieren an opportunity to consider whether the facts were such that it could be said that he did not attend the meeting for a reason which was not foreseeable when the meeting was arranged; for, if it was the case that he did not attend the meeting for such a reason, then he would not have failed to comply or would have to be treated as if he had not failed to comply with the requirement of the procedure that he should have attended the meeting and the obligation on the Edwards to inform Mr Van Dieren of the result of the meeting (albeit he was not there) would still have been live; thus he could reasonably have believed, or at least it could be held that he could reasonably have believed, that the procedure was still being followed as at 17 August.[36]Mr Van Dieren indicated to me that there might be circumstances in which he could say that Regulation 13(1) did apply to his case although he was frank and honest enough also to say that the past history between himself and the Edwards might be regarded as a predominant reason for his not attending; but it seems to me that there is or may be a factual issue arising as to the application of Regulation 13 to Mr Van Dieren's case which I cannot begin to resolve. Mr Keenan points out that no argument based on Regulation 13 was put forward to the Tribunal. That may have been because such an argument might not have arisen if the Tribunal was focusing on Regulation 15(3) rather than Regulation 15(2); the reason is more likely to have been that, Mr Van Dieren being in person, it did not occur to him that Regulation 13 (assuming he knew anything about it, which is doubtful) was of any value. The Tribunal did not open up Regulation 13; bearing in mind that Mr Van Dieren was in person, it seems to me that it should at least have been considered by the Tribunal, even if only to negate it.[37]Alternatively, Mr Van Dieren, says (this time with more force) that his case falls within Regulation 11(2) because the circumstances were such that he had been subjected to harassment, i.e. conduct violating his dignity or falling within Regulation 11(4)(b), at the hands of Mr Edwards in particular and that attending the meeting or meetings, i.e. complying with the requirements of the procedure, would have resulted in his being subjected to further harassment or at least gave him the right to believe that that might be the result.[38]There is no doubt that Mr Van Dieren had raised the question of there being a history of difficulties between himself and Mr Edwards in his claim form. He asserted that Mr Edwards had been trying to take over his work from July 2004. He tells me that he did not go into much more detail in evidence at the hearing before the Tribunal because the evidence was focused on why he had not put in his claim form until 18 August and whether or not it was reasonably practicable for him to have put it in earlier.[39]In my judgment, here, too, there arises a factual issue or potential factual issue which I cannot begin to decide and which the Tribunal did not open up or give Mr Van Dieren the opportunity to advance at the hearing as, in the circumstances, it should have done. The Result[40]The reality is that, in this case, the Tribunal appears to have gone down the wrong road by focusing on the grievance procedure and the regulations which operate in the case of the application of a grievance procedure; that being so, I could only dismiss this appeal in the light of that error on the part of Tribunal if I were satisfied that, had the right approach been adopted by the Tribunal, there would have been no factual issue on the basis of which Mr Van Dieren could, in any practical sense, be said, conceivably but not fancifully, to have a prospect of obtaining an extension of the time limit under Regulation 15(2). I am not satisfied that I could dismiss this appeal on that basis. In my judgment, the appeal must be allowed because of the errors of law which I have identified, to this extent, that the issue of whether or not Mr Van Dieren is entitled to an extension to the normal time limit, pursuant to Regulation 15(2) of the 2004 Regulations, should be remitted to the Tribunal for decision. I have not yet heard any argument as to whether that matter should be remitted to the same or to a different Chairman.[41]What, then, is to become of the hearing which is fixed for next Tuesday? Mr Van Dieren tells me that he could not be ready with only slightly more than two working days available between now and next Tuesday, to deal with a Tribunal hearing on the merits; and that I understand. On the other hand, Mrs Van Dieren, who has attended because(a) she no doubt wants to support her husband and(b) because she has been named as a respondent to this appeal (although she has no real part to play) would prefer that her case goes ahead on the merits next Tuesday.[42]I, of course, cannot comment on the effects between Mr and Mrs Van Dieren of this conflict between them, which I can see and observe they take with the realism and humour: but what I must do is to try to help the Tribunal to deal with this matter pragmatically. I take the view that it would, indeed, be very difficult for Mr Van Dieren to cope with a full merits hearing on next Tuesday 28 March and that, in any event, the Tribunal will have to consider whether the question of an extension of time should be determined before a full merits hearing or should be determined together with a full merits hearing.[43]The Regulation 11 point which Mr Van Dieren raises involves or may involve, as it seems to me, considerable investigation of the evidence as to the history between the Van Dierens and Mr Edwards and, for all I know, Mrs Edwards – I have no idea what role she actually has played – which appears likely to be the same history, to some extent, perhaps to a large extent, as that which will have to be examined - at the very least in Mrs Van Dieren's case – when the merits of the dismissal come to be evaluated by the Tribunal. It may, therefore, be that the Tribunal would regard it as more sensible to hear all the facts together and to make a determination on the merits of the claims at the same time as deciding whether an extension of time under Regulation 15(2) should be granted to Mr Van Dieren, adapting to a process similar to that as which followed from time to time in discrimination cases where historic discrimination allegations are made. Alternatively, the Tribunal may prefer to hear the extension of time issue separately. That is for the Tribunal to resolve. I do not propose to dictate to the Tribunal how they should deal with that problem.[44]It seems to me to be clearly the most pragmatic approach that next Tuesday's hearing should be treated as a directions hearing only at which the Tribunal decides how it is going to proceed to resolve the various issues and makes case management orders in relation to its resolution of those issues.[45]For the reasons I have set out, the appeal is allowed; and there will be a limited remission, which I have identified.[46](After further argument). I understand it to be highly unlikely that the hearing next Tuesday will be presided over by the same Chairman. In all the circumstances, I direct that the remission should be to a differently constituted Tribunal.[47]I will direct that the full hearing should not go ahead next Tuesday.