Khan v Vignette Europe Ltd UKEAT/0134/09/CEA
Appeal against refusal to allow adjournment of hearing in unfair dismissal claim
Appeal No. UKEAT/0134/09/CEA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 30 October 2009
Judgment handed down on 14 January 2010
THE HONOURABLE MRS JUSTICE COX
MR I EZEKIEL
MS G MILLS CBE
MR R KHAN (APPELLANT)
VIGNETTE EUROPE LTD (RESPONDENT)
Transcript of Proceedings
For the Appellant MR R KHAN (The Appellant in Person)
For the Respondent MR M SETHI (of Counsel)
Instructed by: Messrs Field Fisher Waterhouse LLP 35 Vine Street London EC3M 2AA**SUMMARY**
PRACTICE AND PROCEDURE: Case management
An appeal brought by the Claimant (a Muslim) against the ET's refusal of his application to adjourn the hearing of his claims part-heard on the third day of the hearing. This was his third application to adjourn the hearing and the first application to raise, as a ground for adjournment, the requirements of Ramadan, their effects upon him, and the need to adjourn in order to accommodate them. Application to call as fresh evidence expert opinion on religious observance and requirements during Ramadan refused in the circumstances. The ET's discretionary decision to refuse the application to adjourn, and then to continue to hear the case in the Claimant's absence, after he left the Tribunal, was held to have been arrived at after carefully balancing all the relevant factors in an unusual case, and not to violate the Claimant's rights under Article 6 ECHR. Judgment upheld.**THE HONOURABLE MRS JUSTICE COX**
- The Claimant, Razwan Khan, is appealing against a judgment of the Reading Employment Tribunal, promulgated with reasons on 16 September 2008, dismissing his claims for equal pay and compensation for unfair dismissal.
- The Claimant has represented himself before us. The Respondents are represented by Mr Sethi.
- There is now just one ground of appeal, which was permitted to proceed at a hearing held under Rule 3(10) of the EAT Rules when all the other grounds were dismissed. It relates to the Tribunal's refusal, on the third day of the hearing, to grant the Claimant's application for the hearing to be adjourned part-heard.
- This was in fact the Claimant's third application for an adjournment of this hearing. The first was made in writing a few days before the hearing was due to start, and the second was made orally at the start of the hearing. Both applications, based on different grounds from that advanced in support of the third application, were refused, and there is no appeal in respect of those earlier decisions.
- The hearing, which began on 1 September 2008, was listed for five days. These days also fell on the first five days of Ramadan, which the Claimant, who is a Muslim, wished to observe. It was this matter which formed the basis of his third application to adjourn part-heard. As will become clear there was an unfortunate procedural history to this case, and the Tribunal had regard to all the circumstances in arriving at their decision to refuse the application with which we are concerned.
- As a result of their refusal to adjourn the hearing part-heard the Claimant decided to withdraw from the Tribunal. Their substantive decision on the merits of the case was therefore arrived at without his further attendance or participation in the hearing, although his counsel remained with a noting brief for the remainder of the evidence, and the Tribunal had regard to the Claimant's witness statement and other documents he relied upon in coming to their decision on the merits.
- The Claimant contends, essentially, that the Tribunal erred in law in failing to adjourn the hearing on the third day in circumstances that deprived him of a fair trial contrary to Article 6 of the European Convention on Human Rights.
- The Respondents contend that in the exercise of their discretion in a matter of case management the Tribunal gave the matter careful and anxious consideration, correctly took all the relevant factors into account, and arrived at a balanced conclusion which was clearly open to them in the unusual circumstances of this case on the basis of the material before them. The judgment should therefore be upheld.
- At the start of the hearing before us the Claimant applied to call fresh evidence, namely expert evidence on the requirements of religious observance during Ramadan. We refused that application for the reasons we shall set out later on in this judgment.
- We need say a little about the substantive issues in this case. In essence, and so far as is relevant to this appeal, the Tribunal found as follows.
- The Respondents' business is the provision of software enabling large organisations to manage information and data. The Claimant joined them as a telemarketer in March 2005.
- The Claimant was extremely good at his job, but the employment relationship was not a smooth one. During his employment the Claimant pursued grievances about both his remuneration package and his career development. The grievance procedure became so protracted and working relationships became so badly damaged that the Claimant was eventually suspended, pending a disciplinary meeting set for 8 June 2007.
- Immediately after his suspension, and in accordance with company procedures of a now familiar kind, the Claimant was escorted from the Respondents' premises, and was asked to hand in his work laptop so as to preserve the Respondents' rights in respect of the business data stored upon it.
- The Claimant therefore handed over his laptop, but this had an unexpected consequence. It was discovered that pornographic material had been retained on the laptop and that the Claimant had been accessing pornographic and other inappropriate internet sites during working hours.
- The Respondents decided that this constituted gross misconduct under their established IT policies. The meeting of 8 June was cancelled and on that date the Claimant was summarily dismissed for gross misconduct. He did not exercise his right of appeal. He did, however, issue a claim in the Tribunal.
- The chronology of the litigation, as set out by the Tribunal, is important. We need to refer to it in some detail so that the issues arising on appeal may be properly understood.
- The Claimant presented his Claim Form on 4 July 2007. He was at that time represented by solicitors who remained on the record until 14 March 2008. His claim contained complaints of unfair dismissal, unpaid wages and discrimination on the grounds of sex, religion and age.
- In their response of 3 August the Respondents alleged that the statutory grievance procedures had not been complied with in respect of those claims other than unfair dismissal, and that there was therefore no jurisdiction to determine them.
- The Tribunal ordered a Pre-Hearing Review (PHR) which took place on 6 December 2007. On that date, when the Claimant was still legally represented, the issues were clarified. It became clear that his claim of sex discrimination was in fact a claim for equal pay, and this was accepted and recorded. In respect of his dismissal, the Claimant conceded that the pornographic material was stored on his work laptop but asserted that it was there as a result of his proper performance of the duties required of him. In relation to his claims of discrimination on grounds of religion and age, the employment judge made an "unless" order requiring the Claimant to disclose the statutory grievances he relied upon in order to found jurisdiction. A further PHR was fixed for 8 February 2008 and the full hearing was also fixed for 5 days from 14-18 April 2008.
- The Claimant did not comply with the unless order and on 23 January 2008 his claims of discrimination on the grounds of age and religion were struck out.
- The PHR on 8 February began but it had to be adjourned. The Claimant was also ordered to pay costs on this occasion, though it appears that this order was subsequently overturned on appeal. The Respondents then suggested that in order to avoid further delay any remaining issue relating to whether the statutory grievance procedures were correctly followed, as regards the equal pay claim, should be dealt with at the full merits hearing. The matter proceeded on that basis, by agreement, and the parties therefore prepared for trial.
- A Case Management Discussion was held on 4 April, which the Claimant attended in person being unrepresented by this stage. Orders were made relating to disclosure, the exchange of witness statements and preparation of the documents bundle.
- The first day of the hearing arrived, by which time, as the Tribunal found, it was to be inferred that both sides were fully prepared since no indication to the contrary had been received. However, the hearing did not start on 14 April. The Tribunal were notified that the Claimant was unwell and had gone to hospital. Medical information, subsequently provided, indicated that the Claimant had presented at hospital with chest pain. There was however no diagnosis of any medical condition and no medication or treatment was prescribed for the Claimant other than rest.
- With the abandonment of these April hearing dates the Tribunal adopted the pre-listing stencil procedure so as to list the case on future dates available for the parties and their witnesses. On 13 May the Tribunal wrote to both parties stating that the hearing would be listed for five days in September 2008, and informing them that a new Notice of Hearing would be sent in due course. The parties were asked to notify the Tribunal by 20 May of any unavailable dates for the month of September. Neither party raised any difficulty in respect of a hearing on any dates in September.
- A Notice of Hearing was then sent to the parties on 29 May, giving a fixed listing of 1–5 September 2008. Neither side responded to that Notice suggesting any difficulty with the listed dates.
- On 26 August, and therefore less than a week before the hearing was due to start, the Claimant instructed new solicitors. They immediately applied in writing for an adjournment (the first application) on the ground that they were not ready to proceed. The Respondents opposed the application and it was refused in correspondence. The parties then arrived at the Tribunal on 1 September, the Respondents attending with their witnesses and expecting to proceed.
- The Tribunal set out the order of events on that day at paragraph 4 of their reasons. The Claimant was represented by counsel, Mr Lewis. At the start of the hearing it was confirmed that the only claims to be determined were those of equal pay and unfair dismissal. The parties agreed that the Respondents' evidence should be heard first. There was a substantial bundle of documents and all the witness statements on both sides had been exchanged. Mr Lewis applied for a restricted reporting order on the basis that the case involved an allegation of sexual misconduct. Mr Sethi, representing the Respondents, had had no notice of this application. He opposed it. The application was refused, the Tribunal being unpersuaded that the conduct in question was sexual misconduct within the Employment Tribunal Regulations, but deciding, in any event, that such an order was not in the interests of justice.
- At this stage the Claimant, through his counsel, applied for an adjournment of the hearing (the second application). Mr Sethi was given no notice of this application either. He opposed it, referring to the history of the matter and submitting that this indicated prevarication on the part of the Claimant.
- The grounds for this application are referred to at paragraph 6 of the judgment. They were set out in a skeleton argument submitted by Mr Lewis which had not been shown to Mr Sethi in advance. The grounds being advanced for an adjournment were grouped under three headings as follows: (1) the location and composition of the Tribunal; (2) an assertion that the Claimant and his counsel were not ready to proceed; and (3) the existence of outstanding appeals which needed to be resolved first.
- The Tribunal considered the application and then refused it for the reasons set out at paragraphs 6.1 to 6.13. Since this refusal is not the subject of any appeal we shall not refer to these reasons in detail. In summary, in relation to ground (1) the Claimant was relying on allegedly prejudicial observations about his case made by other employment judges at previous case management hearings and PHRs, and the alleged risk of contamination, which meant that the case should be transferred to a region other than Reading. The Claimant also asked to be informed as to whether any member of the Tribunal was Jewish and, if so, asked that they step down because he could not be confident of a fair hearing before a tribunal which included such a member. The Tribunal directed themselves to the relevant case law on recusal and bias and rejected this ground. We should add, at this point, that no such issue was raised before us and no request made in relation to the composition of this Appeal Tribunal.
- In relation to ground (2), namely the alleged lack of readiness to proceed, the Tribunal set out the history of the matter. They found that there was no indication that, during the time that he was unrepresented, the Claimant had himself continued with any of the steps now said to be necessary for the proper preparation of his case. Nor was there any medical evidence before them explaining any inaction on the Claimant's part. His own lack of preparation was held not to amount to a valid reason for an adjournment. In any event, the hearing had previously been due to start on 14 April and it had to be inferred that, the Claimant's illness apart, both sides had been fully prepared and ready to proceed on that day. The Tribunal did not accept Mr Lewis' submission that there were still outstanding issues as to disclosure, or as to the contents of the trial bundle, or that witness statements still required amendment. In any event, these were matters that they felt could be accommodated, as necessary, during the hearing. One of the Claimant's witnesses, Baroness Von Schleinits, was said to be available for only part of the week, but the Tribunal considered that this difficulty could be dealt with by her evidence being interposed.
- At this stage, in our view, the Tribunal were endeavouring both to keep the case on the tracks and to accommodate the Claimant, by indicating the steps that could be taken by them to alleviate any remaining difficulties in relation to disclosure or the calling of witnesses. At paragraph 6.7.7, for example, they said as follows:
"The Tribunal sought in the interests of fairness to accommodate matters, so far as compatible with its duties to both parties. We permitted breaks to enable Mr Lewis to take instructions and breaks for him to deal with documents with which he was unfamiliar; we permitted him to interpose Baroness Von Schleinits out of order, and as her witness statement, as served, dealt almost entirely with issues of religious discrimination (which had been struck out the previous January) we gave leave for service of a fresh statement. As Mr Lewis agreed that the Claimant's witness statement was not fit for the purposes of this hearing, we gave leave in principle for it to be edited…"
- As to ground (3), relating to outstanding appeals, the Tribunal declined to adjourn the case on the basis (a) that the appeals referred to were on points which were wholly irrelevant to the hearing before them (e.g. the costs order made on 8 February 2008); and (b) that the prospects of success for the appeal against the decision to strike out the age and religious discrimination claims in the circumstances was so remote that they should not have regard to it in considering the application to adjourn.
- It seems that Mr Lewis then raised a further matter, right at the end of his oral submissions, referred to at paragraph 6.13 of the reasons, as follows:
"6.13 In the last moments of his submission, and seemingly as an afterthought, Mr Lewis mentioned Ramadan, which had just started, as grounds for adjournment. We assured the Claimant and Mr Lewis that we would accommodate any religious practice which was required. The Claimant requested specific break times each day for the purposes of prayer, and these were of course agreed."
- This second application to adjourn was therefore refused and the hearing began. The first two witnesses for the Respondents were called and were cross-examined, a process which took until lunchtime on 2 September.
- On the afternoon of 2 September, by consent, the Claimant's witness Baroness Von Schleinits, an employee of the Respondents until April 2006, was interposed. She read aloud her witness statement, which had been served with substantial revisions that morning, and she was cross-examined by counsel for the Respondents.
- We turn then to the Claimant's third application to adjourn the hearing, which is the subject of this appeal. Mr Lewis made this application on the morning of 3 September. Once again, Mr Sethi had not had notice of it and he opposed it.
- The Tribunal referred to this application, the grounds upon which it was made, their consideration of the issues and their reasons for refusing it at paragraphs 7-9 of the judgment. We shall set these paragraphs out in full, rather than attempt to summarise them.
"7. On the third morning of [the] hearing, Mr Lewis submitted a second skeleton argument and asked that the Tribunal adjourn part heard for a number of reasons relating to the fact that the week of this hearing had also been the first five days of Ramadhan (sic). Mr Sethi, who had not been given advance notice of the application, or of the skeleton, strongly resisted the application. The Tribunal adjourned for some time to consider the matter, which gave us considerable anxiety. We deal with the points which were raised and our reasons for refusal as follows:-
7.1 Although there was no expert evidence before the Tribunal, it was not disputed that Ramadhan each year starts about 12 days earlier than Ramadhan in the previous year in the Western calendar. The first day of Ramadhan in 2007 was 13 September. Muslims across the world could therefore have known that Ramadhan would begin in the first days of September 2008, although the exact date could not be known until very shortly before it happened. In our view therefore the Claimant knew at least a year in advance, to within a day or two, when Ramadhan would begin in 2008.
7.2 In this case, the pre-listing procedure had been followed, so that the parties had the opportunity of considering when precisely to request avoidance of listing, and when their wishes could be guaranteed to be followed;
7.3 The notice of hearing in this case was dated 29 May, and had the Claimant then replied promptly by identifying an overlap with Ramadhan, we were confident that his concerns would have been respected.
7.4 We were therefore of the view that the Claimant was responsible for failing to take the most basic steps to avoid a hearing which coincided with Ramadhan;
7.5 The Claimant's skeleton argument referred to advice about Islamic belief and practice given to him after the second day of hearing by Baroness von Schleinitz (who is a Muslim). Mr Sethi suggested that these were not the Claimant's genuine religious views. We do not agree. However, we were concerned that the Claimant appeared to base his application on religious information given to him overnight by a lay witness, which he had then researched on the internet.
7.6 The Claimant submitted that he wished during Ramadhan to enjoy a period of mental and spiritual purity, which would be inconsistent with a case involving the consideration of sexually explicit images. We noted that the Claimant did not deny prolonged and repeated occasions of having visited sexually explicit sites during his employment. It could not therefore be said that he found such material inherently distasteful. We were confident of our ability as a Tribunal to manage the way in which this evidence was considered, so that it would not be dwelt upon in a manner which was disproportionate or prurient.
7.7 The Claimant submitted that during Ramadhan, he wished to enjoy a period of spiritual harmony, which would be incompatible with the anger and upset of litigation. Counsel submitted that he would be distressed by 'ferocious' cross-examination. In our view, the management of conflict is inherent in the process of litigation; we assured Counsel that the contents and style of cross-examination would be subject to direction by the Tribunal.
7.8 The Claimant submitted that he was suffering from sleeplessness. He produced, for the first time, a copy of a prescription which showed that on 19 August 2008 he had been prescribed sleeping tablets, i.e. one tablet of 10mg Tamezepam to be taken each night. Mr Lewis explained that the Claimant had not been taking the tablet so as not to be drowsy during the hearing, his nights being interrupted by attendance at prayers. We had sympathy with this issue, but we considered that the responsibility for management of his health and sleeping patterns was that of the Claimant.
7.9 Underlying this application was the reliance placed by Mr Lewis on Articles 6 and 9 of the European Convention on Human Rights, and on Section 6(1) of the Human Rights Act 1998. We agreed with Mr Sethi that Article 9 was not engaged but that Articles 6 and 14 might be. However, we also agreed with Mr Sethi that the human rights dimension was not a trump card, but a factor to be weighed in consideration when exercising our discretion in accordance with the overriding objective.
8.0 In our judgment, this application required us to weigh in the balance a number of matters: the Claimant's rights to respect for his religious belief and practice, to the extent that they impacted on his right to a fair trial; and to have regard to the cause of any difficulty which he now faced in presenting his case, which were matters that we regarded as the Claimant's responsibility. On the other side of the balance were the rights of the Respondent to a fair trial, that right including a right to a trial which would take place within a reasonable time and without the prejudice of going part heard at short notice; and finally the public interest in speedy and efficient justice, and bringing litigation to a close. The balancing exercise was one which we had to perform in compliance with our own obligations under the Human Rights Act.
9 This was a difficult and anxious task for the Tribunal, in particular perhaps because our task was to balance legitimate but competing rights, rather than an adjudication between right and wrong. In our judgment however, the correct decision was to refuse the adjournment, as we considered that the balance favoured the Respondent's arguments, and the Tribunal's interest in finality. We stressed that we would of course continue to respect the Claimant's wishes to respect religious observances."
- After the Tribunal had refused this application, they adjourned to enable Mr Lewis to take instructions. During that adjournment the Claimant left the Tribunal and did not return. Thereafter Mr Lewis remained with a noting brief. The Tribunal decided to continue to hear the case and they heard evidence from two further witnesses called for the Respondents, who were not cross-examined.
- At the end of the Respondents' evidence, on the afternoon of 3 September, Mr Lewis confirmed that the Claimant did not intend to return to the Tribunal and would not give evidence. The Tribunal asked what material the Claimant wished the Tribunal to read. Mr Lewis had earlier referred to the Claimant's witness statement as being prolix, repetitive and disorganised, and as containing matters not relevant to the issues before the Tribunal. Mr Lewis now suggested, however, that the Tribunal should read the whole of the statement. As a result the employment judge himself read the entirety of the Claimant's witness statement (of 122 pages) and identified those passages which were relevant to the issues, and which the whole Tribunal would consider. These passages in fact represented about half the original statement. In taking the Claimant's witness statement into account the Tribunal had regard to the fact that the contents had not been given as evidence by the Claimant in the witness box and, further, that the witness statement was unsigned.
- The Tribunal then heard Mr Sethi's closing submissions. They gave judgment orally on the afternoon of 4 September.
- In arriving at their conclusions, after correctly directing themselves as to the law, the Tribunal took into account, and expressly referred to, points which were being made by the Claimant in relation to his claims. As far as equal pay was concerned they held that the Claimant was not in fact employed on like work with his named comparators. In relation to unfair dismissal they held that procedural errors would have rendered his dismissal unfair but for the operation of section 98A(2) Employment Rights Act 1996. Had a proper procedure been followed the Claimant, they considered, would have been dismissed in any event. The Tribunal also went on to consider the issues of contribution and a Polkey reduction, even though it was unnecessary for them to do so.
- In deciding whether or not to grant this application for an adjournment, the Tribunal were exercising their discretionary powers of case management under rule 10 of the Employment Tribunal (Constitution and Procedure) Regulations 2004. In general, as is well established, such decisions are challengeable only on what may loosely be called "Wednesbury" grounds, where the decision maker has exercised the discretion under a mistake of law or disregard of principle, under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was perverse, that is outside the generous ambit within which reasonable disagreement is possible.
- Rule 10(2)(m) provides that tribunals may, in their discretion, postpone the day or time fixed for any hearing. This rule, giving a wide discretion to tribunals in relation to postponement, has been in place for many years. In Carter v Credit Change Limited  IRLR 361 the Court of Appeal confirmed the general principles upon which that discretion should be exercised. The power to postpone or adjourn cases must not be used arbitrarily or capriciously and must certainly not be used in order to defeat the general object of the legislation. What is necessary is that the tribunal should act in the way they consider is best in the interests of justice in each individual case. In so acting the tribunal has a complete discretion, so long as it is exercised judicially, to postpone or to adjourn any case provided there is good, reasonable ground for so doing.
- The question of adjournments was considered by the Court of Appeal, again more recently, after the arrival of the Human Rights Act 1998 and the need to have regard to Article 6 of the Convention, in Andreou v Lord Chancellor's Department  IRLR 728.
- At paragraph 35 Peter Gibson LJ, with whom the other members of the court agreed, said as follows:
"There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment, is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment: see my remarks in Teinaz v London Borough of Wandsworth (unreported) 16 July 2002  LRLR 721 at paragraph 20. In that judgment, I made some general observations on adjournments:
'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 and 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.'."*
- Upholding the Employment Tribunal's decision to refuse an adjournment on the facts of that case, which related to the claimant's illness, he said this at paragraph 46:
"46. The tribunal, in deciding whether to refuse an adjournment, had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course, an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that complaints such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity adequately to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs Andreou either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial. Viewing the case in the round and considering all the circumstances referred to by the tribunal, I cannot see how it could be said that in refusing the application the tribunal was perverse or otherwise plainly wrong in refusing a further adjournment."
- As Mr Sethi points out, since these cases were decided, when exercising any power under the Regulations or interpreting any of the Rules, the Tribunal is now also obliged to give effect to the overriding objective (see Regulation 3(3)). This requires tribunals to deal with applications "justly", which includes, so far as practicable and as is relevant to this appeal, ensuring that the parties are on an equal footing; dealing with the case in a way which is proportionate to the complexity or importance of the issues; ensuring that the case is dealt with expeditiously and fairly; and saving expense.
- By Regulation 3(4) the parties are required to co-operate in this process and to assist the tribunal to further the overriding objective. In considering applications such as the application to adjourn made in this case, a balance clearly needs to be struck, not only between the application of a particular objective and the general concept of fairness, but also between the competing demands of the various objectives themselves.
- Of further relevance in this case is rule 27 of the Employment Tribunal Regulations which deals with a party's failure to appear at the hearing. If a party fails to attend at the time and place fixed for the hearing rule 27(5) confers a wide discretion on tribunals to dismiss or dispose of the proceedings in the absence of that party or to adjourn the hearing to a later date. Rule 27(6) requires the tribunal to consider first any information provided by the parties before dismissing or disposing of the proceedings.
- As Mummery LJ emphasised in Roberts v Skelmersdale College  ICR 1127 (see paragraphs 13-17), provided the discretion is exercised judicially, it is entirely a matter for the tribunal which course to adopt. In relation to the power to dismiss or to dispose of a claim in the absence of the claimant, the tribunal is under no duty to investigate the case of their own motion or to satisfy themselves that on the merits the respondent has established a good defence to the claim. Thus, in an unfair dismissal case, the tribunal is not required to hear evidence from the respondent in order to determine for themselves the reason for the dismissal and whether the dismissal was fair. They may do so, but rule 27(5) imposes no obligation upon them to do so.
- We shall deal first with the Claimant's application to call fresh evidence at this appeal, which we considered at the start of the hearing.
- Following the Rule 3(10) hearing, at which this ground of appeal was allowed to proceed, the Claimant applied for permission to put in evidence an expert opinion from Dr Usama Hasan on the particular aspects of Islamic law and theology which he considers are relevant in this case. This application was adjourned to the full hearing. Dr Hasan is an adviser to the Islamic Sharia Council in Leyton and a senior lecturer at Middlesex University. His report contained extracts from religious texts. Based upon these he expressed the opinion that an individual should neither view nor discuss any pornographic material whilst he is fasting, and thus during Ramadan. To require him to do so, he considered, would violate and degrade the spirit of fasting. The Claimant, in his view, should not therefore be placed in a position where he was required to do so, in this instance in giving evidence about such matters before the Employment Tribunal.
- The Respondents opposed the Claimant's application, contending primarily that such evidence was not relevant to the issues in this appeal given the Tribunal's findings below. In any event the Claimant could have called such evidence below, if he wished to rely upon it, and he should not be permitted to do so now. In the alternative, however, if the Claimant's application were granted, the Respondents applied for permission to put in evidence in response an expert opinion from Professor NAS Abdel Haleem, Professor of Islamic Studies at the University of London. Professor Haleem disagrees with Dr Hasan's conclusions and offers a different interpretation of the religious requirements and restrictions during Ramadan. In his opinion there is nothing which would prevent this Claimant from considering any pornographic material for the purposes of giving evidence about it before the Employment Tribunal.
- The order adjourning the Claimant's application to the full hearing of this appeal made provision, without prejudice to the question whether such evidence should be permitted, for oral evidence and cross-examination of the experts and of the Claimant, if considered appropriate.
- However, having read the reports obtained from both Dr Hasan and Professor Haleem, whilst both provide interesting background information we concluded that their evidence was not relevant to the issues in this appeal and should not therefore be admitted.
- Even if the Claimant were able to show that he could not have obtained Dr Hasan's report with reasonable diligence for use at the Tribunal, in our view this could not be said to be evidence which would have had an important influence on the Tribunal's decision. The Tribunal clearly found that the Claimant's views were genuinely held religious views (see paragraph 7.5). It was therefore accepted that his desire, during Ramadan, to maintain a degree of mental and spiritual purity and to avoid exposure to material which would degrade the spirit of fasting, genuinely reflected the Claimant's religious views; that such views were entitled to respect; that the Tribunal should have careful regard to them in considering their decision; and that these views were not being advanced simply as an excuse to obtain an adjournment. Expert opinion of the kind now before us was therefore neither relevant to the issues, nor likely to have had an influence on the Tribunal's decision.
- We add that we were not persuaded, in any event, that it would be appropriate to admit as evidence in this case opinions of the kind expressed in these reports. The conflicting opinions expressed by these two experts reflect the fact that, in theological terms, the tenets of faith are open to more than one interpretation. Not everyone shares the same understanding about Islam and its creeds. Such opinions, reflecting strongly held but opposing theological views, are unlikely to assist a tribunal in resolving questions of the kind arising in this case, where there was no dispute as to the genuineness of the Claimant's beliefs, or the reasons why he held them.
- For these reasons we therefore refused the Claimant's application to adduce in evidence the report from Dr Hasan.
- In the amended Notice of Appeal, settled at the Rule 3(10) hearing by counsel on the Claimant's behalf, it is contended that the Tribunal erred in law: (a) in failing to adjourn the hearing in circumstances that deprived the Appellant of a fair trial contrary to Article 6 of the ECHR; (b) in taking into account an irrelevant factor, namely the purported right of the Respondent to a hearing without the prejudice of going part heard at short notice; (c) alternatively, in basing their decision on such a right without first taking steps to determine how long an adjournment would be required to accommodate the Claimant's religious practices; and (d) in basing their decision on the public interest in "speedy and efficient justice", in circumstances where the refusal of an adjournment subjected the Claimant to an injustice because he was unable to be present at and participate in the remainder of the hearing through no fault of his own.
- In his oral submissions to us the Claimant emphasised, essentially, the following points. He considers that he suffered a great injustice as a result of the Tribunal's refusal to adjourn the hearing. He states that he found the references to pornographic material in the trial bundle offensive, at what was a deeply spiritual time for him, and that as a result of their ruling he had no option but to leave. He states that we should also have regard to the entirety of the litigation history; and he made a number of criticisms of the earlier decisions made at the pre-hearing reviews and the case management discussion. These decisions, he felt, were harsh and created a negative image of him which would have influenced, perhaps subconsciously, the way the Tribunal dealt with him on this occasion and which led them to refuse to adjourn the hearing. He also made a number of criticisms of the conduct of both the Respondents and their legal representatives in preparing the case, and in particular in failing to deal properly with disclosure, which he states is what led him to be unprepared for the hearing. We should say straightaway that these criticisms are all vigorously denied.
- The Claimant contended that the Tribunal should have adjourned the hearing in order to obtain an expert opinion as to the beliefs and practices relevant to Ramadan, and that an injustice was done by their failure to adjourn the case for this to be done. The result was that he was not there to put forward his case. This, combined with the negative image that the Tribunal already had of him, led them to find against him on his substantive claims.
- The Claimant also sought to address us in some detail on the facts and merits of his substantive claims. We endeavoured to point out to him that we were not concerned with those matters in this appeal; but his reasons for referring to them were to emphasise, as he did, that defeat would have been easier to swallow had he been heard, and a decision made by the Tribunal after listening to what he had to say.
- This is, as the members of the Tribunal themselves observed at paragraph 11, a sad case. There was no doubt about this Claimant's dedication to his work and to his professional and technical competence, as the Tribunal found. Listening to what he had to say to us, we formed the view that there was much that he could have said as to the merits of his substantive claims, had he given evidence to the Tribunal.
- The sole question for us, however, is whether the Tribunal erred in law in refusing to grant the application to adjourn on 3 September. Having regard to the applicable legal principles, to which we have already referred, we can identify no error in the Tribunal's approach or reasoning which would permit us to interfere with what was plainly a discretionary decision, arrived at after carefully balancing all the relevant factors, and which cannot, even arguably, be said to be perverse.
- The ground upon which this application to adjourn was advanced was the need for the Tribunal to respect the Claimant's genuine, religious beliefs and therefore to take steps to avoid him having to consider or discuss the offending material during Ramadan, whilst he was fasting, which was for him a deeply spiritual and significant time.
- In approaching this application it is clear to us that the Tribunal gave the matter most anxious consideration. There is nothing whatsoever to support the suggestion that they had, or were somehow influenced by, a negative image of this Claimant, because of what had gone before. On the contrary, they were clearly troubled by the issues raised, and in our judgment rightly so. In our pluralist society careful consideration should always be given as to how legal or administrative procedures might need to be adapted, so as to ensure that people of different faiths can participate fully in the justice process.
- In our view, however, this important matter could not be considered in a vacuum. The Tribunal were entitled, indeed obliged, to have regard to all the relevant circumstances, in order to arrive at a balanced conclusion on the facts. In this case, therefore, the Tribunal were entitled to have regard to the point in time when the Claimant first raised his beliefs before the Tribunal, and the circumstances which led him to do so.
- Whilst they accepted that it could not be known exactly when Ramadan would begin, the Tribunal noted that it was not in dispute before them that Ramadan starts each year approximately 12 days earlier than Ramadan in the previous year in the western calendar. The Claimant would therefore have known at least a year in advance approximately when Ramadan would begin in 2008.
- Given the Respondents' stated reason for his dismissal and the Claimant's response, it would also be clear to him that the Tribunal, in dealing with the unfair dismissal claim, would be considering, at least to some extent, the nature and content of the material found on his laptop; that evidence would be given about it in his presence; and that he too would be asked about it when giving evidence.
- In this case the pre-listing procedure had been followed, so that the parties had had the opportunity to consider dates to avoid in relation to listing and the Tribunal would then have been able to respect them. Had the Claimant's concerns been raised at that point the Tribunal would have been able to accommodate them and to ensure that the case was not listed during this period. As it was, the Claimant did not raise this matter, or place reliance upon it as a ground for an adjournment, until the application was made on the third day of the hearing after he had considered information given to him by his witness, which he had then researched on the internet.
- The Tribunal concluded that, in the circumstances, the Claimant had failed to take even the most basic steps to avoid a hearing being fixed at a time which coincided with Ramadan. This finding was clearly open to them on the evidence.
- Further, the Claimant could not, and did not, say that he found the sexually explicit images inherently distasteful, because he did not deny prolonged and repeated occasions when he had visited sites containing such material during his employment. Recognising that he wished to enjoy a period of mental and spiritual purity during Ramadan, however, the Tribunal indicated that they would not allow this material to be dealt with in a prurient or inappropriate way. They further indicated that they would, if necessary, control the content and style of cross-examination. Such special measures, as part of appropriate and sensitive case management, would also ensure that conflict of the kind that is part of the normal cut and thrust of litigation in employment tribunals would be kept to a minimum so as to enable the Claimant to continue, so far as possible, to enjoy the peace and harmony which is an essential part of Ramadan.
- It was not necessary, in our view, for them to adjourn to obtain expert evidence upon this point, which would have been likely, in any event, to result in opposing opinions of the kind which were placed before us, and which, for the reasons we have already given above, would not have assisted the Tribunal to resolve the matter.
- In considering the need to respect the Claimant's religious views and his right to a fair hearing the Tribunal also observed, correctly, that the Claimant's rights in this respect were not "a trump card" but, rather, an important factor to be weighed in the balance, and to which anxious scrutiny should be applied, when considering how to exercise the discretion to grant or refuse the adjournment in all the circumstances, in accordance with the overriding objective.
- The Tribunal's reasons for refusing the application, and in particular those set out at paragraph 8, indicate to us that the Tribunal approached this task with conspicuous care and sensitivity. In addition to those matters we have referred to above, to be placed in the balance on the other side were the rights of the Respondents to a fair trial within a reasonable time, and without being prejudiced by having to go part heard at short notice. There was also a need to take into account the public interest in speedy and efficient justice, and in finality of litigation, in particular in a case where there had already been delays and an earlier aborted five day hearing in April.
- The Tribunal expressly recognised that this balancing exercise was one which they had to perform in compliance with their own obligations as a statutory body under the Human Rights Act 1998. At paragraph 9 they acknowledged that this was a difficult and anxious task, in particular perhaps because the task required of them was to balance legitimate but competing rights, rather than to adjudicate between right and wrong. The Tribunal's decision, ultimately, was that the balance favoured the Respondents' arguments. We note that, even after refusing the application for an adjournment, the Tribunal continued to emphasise that they would do what they could to respect the Claimant's wishes in relation to his religious observance.
- Following the Claimant's withdrawal, and therefore his refusal to take any further part in the proceedings, the Tribunal decided to continue to dispose of the proceedings in his absence, as they were permitted to do by the rules. They took care, however, to consider all the information they had in their possession which had been made available to them by the Claimant. It is clear from their reasons, in relation to the decision on the substantive claims, that they took into account those matters which were laid before them in documentary form by the Claimant and the points he made in his witness statement. The first two witnesses called for the Respondents had also been cross-examined on the Claimant's behalf. In our view, given the Tribunal's conclusions on the application to adjourn, it cannot reasonably be argued that this Claimant was unable to be present for the rest of the hearing "through no fault of his own". Further, the course adopted by the Tribunal in his absence enabled him still to benefit from a fair hearing, in accordance with the rules of procedure, and there was in our view no violation of his rights under Article 6.
- In conclusion, we are all of the view that this Tribunal took all relevant factors into account and arrived at a careful, balanced decision which was open to them on the facts. We are not persuaded that any error of law in their approach has been disclosed which would permit us to interfere with their judgment.
- We add only this. At the very end of his oral submissions, in response to those of the Claimant, Mr Sethi made some further, short submissions relating to Article 9 of the European Convention on Human Rights. He did so because Article 9 had been briefly mentioned in the amended grounds of appeal, although no particulars had been given as to the reliance being placed on it in this case.
- The Claimant understandably objected to these additional submissions, because they had not been set out in the Respondents' Answer or in Mr Sethi's skeleton argument and the Claimant had not come prepared to deal with them. We therefore did not hear full argument on Article 9.
- In our view, however, Article 9 really adds nothing on the particular facts of this case, the Tribunal having had careful regard to all relevant factors, including the Claimant's genuine religious beliefs, in arriving at what we have found to be a fair and balanced decision in the circumstances.
- For all these reasons therefore we must dismiss this appeal.
Published: 15/01/2010 08:52