The claimant was claiming unfair dismissal and race discrimination, naming one of her colleagues as the main perpetrator of incidents of bullying. The hearing was listed for April 2012 but was adjourned by the ET 3 days before it was due to start because of a lack of available judges. The ET then re-listed the hearing for August 2012, without asking the parties for dates to avoid, but the respondent’s main witness, the perpetrator in the claimant’s ET1, said she was unable to make the dates because she was at a family wedding in Poland. The respondent asked for an adjournment, resisted by the claimant, which was refused by the EJ on the bases that the hearing must take priority over a family wedding, the claimant’s objections to an adjournment were well founded and the case was becoming decidedly stale. The respondent appealed.

The EAT allowed the appeal. On analysis the claimant’s points were not well-founded and the ET had therefore taken into account irrelevant matters in refusing the adjournment. They rejected the claimant’s points, in particular the statement that the respondent had other witnesses and did not require the witness in question.

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Appeal No. UKEAT/0361/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 25 July 2012

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

UNIVERSITY OF EAST ANGLIA (APPELLANT)

MISS E AMAIKWU (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PATRICK GRASS (Solicitor)
Mills Reeve LLP
1 St James Court
Whitefriars
Norwich
NR3 1RU

For the Respondent
No appearance or representation by or on behalf of the Respondent

PRACTICE AND PROCEDURE – Postponement or stay

The Employment Tribunal fixed a hearing for 23/4/12 to 1/5/12. On the eve of the hearing the parties were notified it was cancelled because no judge was available. On 1/5/12 the ET sent out new dates, 28/8/12 to 5/9/12; the parties had not been asked for dates to avoid. On 9/5/12 the Respondent applied for an adjournment and new dates on the basis that their most important witness had a longstanding wedding commitment overseas during the proposed hearing dates. This application was refused on the basis that points made by the Claimant in a letter were well-founded; in particular she stated that the Respondent had other witnesses and did not require the witness in question. On analysis the Claimant's points were not well-founded and the ET had therefore taken into account irrelevant matters in refusing the adjournment and the Respondent's appeal must be allowed. Because of the imminence of the proposed hearing date the EAT itself decided the adjournment application and allowed it.

1. This is an appeal by the Respondents below against a refusal of an adjournment by the Employment Tribunal. Granting or refusing adjournment is par excellence a matter of case management discretion for the Employment Tribunal. The EAT can only interfere if there has been an error of law by failing to take account of relevant factors or taking account of irrelevant factors or reaching perverse conclusion. At the appeal hearing today Mr Grass has represented the Appellants, who are the Respondents below as I have said. Unfortunately the Respondent to the appeal, the Claimant below, Miss Amaikwu is not present and although she applied for adjournment of this hearing, that application was turned down and it was ordered that the appeal should proceed in her absence.

1. The background is this. The Claimant was employed by the Respondent University in its IT department from 20 April 2009 until June 2011 when she resigned. She claims unfair dismissal and race discrimination. The incidents of race discrimination relied on are set out in a schedule which is at pages 46 to 50 of my bundle. In about half of the instances, so far as I can see on a quick look through, the alleged perpetrator of the discriminatory acts or harassment is a lady called Emma Koro.

1. On 1 January 2012 the Employment Tribunal fixed a hearing of the claims to be dealt with between 23 April and 1 May 2012. On Friday 20 April, that is the Friday before the hearing was meant to commence, the Employment Tribunal phoned the parties and said that that hearing would have to be postponed due to a lack of Judges.

1. On 1 May 2012, the Employment Tribunal sent out a notice that the hearing would now take place in Norwich on 28 August to 5 September 2012. The Employment Tribunal had not before sending out that notice sought any dates to avoid.

1. On 9 May 2012, so just over a week after the notice was sent out, the Respondent's solicitors, Mills and Reeve, wrote to the Employment Tribunal asking for the case to be re-listed because Mrs Koro would be unable to attend the hearing because she was due to attend a family wedding in Poland. The Claimant was invited to comment on the application and she made the following points in summary on 14 May 2012. She said: 1) that the Respondent did not need Mrs Koro to give evidence because there were other witnesses from the same department; 2) that if they wanted Mrs Koro, they could apply for a witness order; 3) that she, herself, had an unnamed witness coming from abroad and that a postponement "would impact on the programme of this witness" who already had "plans to travel to another part of the world in Sept/Oct"; 4) the disruption would cause prejudice to the Claimant.

1. Mills and Reeve responded by a letter at pages 61 to 62 in my bundle dealing with each of the four points. So far as point number 1 is concerned, they said Mrs Koro is, in fact, the Respondent's most important witness and referred to the large number of allegations as set out in the schedule which I have already referred to. So far as point 2 is concerned, they repeated that Mrs Koro was attending a family wedding in Poland, they said that this was a longstanding commitment and that bookings for the trip were made before the Tribunal listed the hearing and they say it would not be reasonable for the Tribunal to issue a witness order for Mrs Koro meaning that she would not be able to attend a family wedding. On point 3 they drew the Tribunal's attention to the fact that the Tribunal had cancelled the previous hearing and had not written seeking availability before re-listing the hearing. And on point 4 they referred to the Claimant's own alleged witness problems and submitted that the Claimant had not provided any adequate details in support of that reason.

1. Employment Judge Pritchard-Witts rejected the application for adjournment in a letter dated 22 May 2012. That letter simply states:

"The hearing must take priority over a family wedding. The Claimant's objections are well founded and this case is becoming decidedly stale. Postponement refused."

The Respondents appealed and I have already mentioned that at this hearing of the appeal they are represented by Mr Grass and the Claimant, who is the Respondent to the appeal, is not here.

1. I turn to the question of whether the appeal should be allowed. The first reason given for refusing the adjournment is that the Claimant's objections are well founded. I have gone through those objections and the answers to them supplied by Mills and Reeve, but looking again and reaching conclusions of my own, I make the following observations. First, so far as Mrs Koro's evidence and the need for her to be there, the Claimant says that the Respondent has got six witnesses and three of them work in the same department. Mrs Koro is just one of the three and that if she cannot attend the hearing then the others can deal with the evidence. It seems to me that point just does not stack up. As I have mentioned twice now, the schedule makes quite a lot of allegations directly against Mrs Koro, including allegations of harassment. I cannot see that the Respondent can fully defend the claim without the evidence of Mrs Koro.

1. The second point is that the Respondent can always apply for a witness order against her; it is right that they can always apply but it is not necessarily right that they would get a witness order and really the question of whether they would get a witness order depends on the same factors as I would be taking into account in deciding whether there should be an adjournment, so it does not seem to me that point takes things any further.

1. The third point, relating to the Claimant's own witness, is totally vague and does not in any way suggest that a new date could not be found that would suit the Claimant's witness.

1. The fourth point, namely that any disruption would unduly prejudice the Claimant, is totally vague without giving any detail, and seems to me rather an unlikely point given that the date that we are concerned with, namely 28 August, was only given out on 1 May and the Claimant's letter that I am concerned with was written on 14 May and it would therefore be necessary for the Claimant to establish really that something had happened between 1 May and 14 May that had put her in a difficult position vis-à-vis the proposed date of 28 August. Apart from the further delay that would be involved in losing the 28 August date, it does not seem to me that there reasonably could been have any such prejudice and, of course, if an adjournment had been granted in mid-May, it may have been that there was a free date in the middle of September, i.e. only two weeks on from 28 August. So it does not seem to me that any of the points put forward by the Claimant on analysis stacked up.

1. The second reason given by the Employment Judge was that the case was becoming decidedly stale. As to that, it seemed to me there are three points to be made: first, by the standards of many cases one sees, the case was not particularly stale; second, insofar as it was stale, that was mainly because the Tribunal had been unable to hear it, as I have recorded, in April 2012; and, third, if an attempt had been made back in May to see when the case could have been heard conveniently it may have been that any additional delay beyond August would have been small.

1. So much for the reasons given. There is also the first sentence in the reasons which says

"The hearing must take priority over a family wedding". That may apply in some cases and may not apply in others. It must be a matter of all the circumstances. What the Tribunal failed to do here was go into the question of what other dates might be suitable, whether Mrs Koro could have attended for part of the scheduled hearing and so on, but none of those enquiries were made.

1. In my view therefore, the Tribunal Judge in reaching the decision on 22 May clearly took into account irrelevant factors, namely the points made by the Claimant in her letter which were said to be well founded, and in my view were not well founded. He also failed to take account of a highly relevant factor, which was the failure by the Employment Tribunal to seek dates to avoid; I have asked Mr Grass about that and I understand the general practice is to give dates for a hearing without seeking dates to avoid, but then in general the understanding is that a prompt response asking for another date based on witness availability is dealt with sympathetically, which is another way of dealing with the issue, but in this case the Tribunal have not really addressed the question of other dates or dates to avoid at all.

1. I have already commented on the "decidedly stale" point. It seems to me that the exercise of the discretion by the Employment Judge cannot stand and I therefore allow the appeal.

1. It is now 25 July 2012 and the hearing, I have said, is scheduled for late August. It seems to me that given what is going to be happening over the next few weeks, it would be just as well if I made the decision today about whether there should be an adjournment, and then leave it to the Tribunal to decide on when an alternative date can be given if there is an adjournment. And so I look at the position afresh and remake the decision.

1. In that connection, the first thing I raised with Mr Grass was a number of questions about Mrs Koro's plans and this wedding because it seemed to me that that did need to be gone into. There is, of course, no evidence in the strict sense before this Tribunal about the wedding, but it is not uncommon in circumstances like this for a Tribunal to act on the basis of instructions. Mr Grass has come equipped with extremely full instructions which I found persuasive and helpful. The wedding is, in fact, to take place in Albania, and the initial reference to Poland was, I am told, a mistake by Mr Grass' colleague at Mills and Reeve, a pure mistake: I accept that explanation. The wedding is that of the sister-in-law of Mrs Koro, i.e. her husband's sister. The Koros are, I am told, the guests of honour at this wedding which was arranged on those dates for the Koros' benefit. Mrs Koro's daughter, who is only 13-months old, is apparently going to be a flower girl. I express some surprise that a 13-month old girl would have much of a role in a wedding but there we are: these things happen and presumably she can walk or she will have the assistance of her mother in doing whatever she has to do. I am told the Koros are to give speeches. I am told that although the official ceremony, of course, only takes one day, there are parties both before and after. I have been given more details about their travel plans; I understand that they are travelling on 27 August to Greece and then they will cross into Albania by land. The wedding officially takes place on 1 September but, as I have said, there are parties before and after. Mrs Koro had arranged to attend the first hearing in April and there was no problem about that; but she had organised, I am told, the dates that she was going to be away for this wedding as long ago as October of last year. That really sums up what I have been told by Mr Grass, which, as I say, I accept for these purposes.

1. I also need to take account in reviewing the whole position today of the points that are made by the Claimant in her skeleton argument that she put before the EAT.

1. She points out the discrepancy between Albania and Poland: I have dealt with that.

1. She next says that one of her witnesses would be coming from Africa and that she has been unfairly prejudiced. So far as that is concerned, I am told by Mr Grass that the witness she is referring to is, in fact, her mother and he has seen the statement from the mother who apparently recites various conversations that she had with the Claimant. It seems to me on the face of it that evidence is unlikely to be of great assistance to the Tribunal. I am not saying that the Claimant cannot call her or anything like that but it does not seem to me to be a powerful piece of evidence from the way Mr Grass has described it. In any event, more importantly for these purposes, there is no reason to think that the Claimant's mother will not be able to attend a hearing if one is arranged for some time after the middle of September when the Norwich Tribunal is able to accommodate a five-day hearing.

1. So far as other points are concerned, the Claimant says that expense must be saved; that of course is a very good point in general but it does not seem to me that it has enormous relevance to the issue I now have to decide. She makes the point again about Mrs Koro being only one of a number of witnesses who work at UEA; I have dealt with that. And she makes the point that Mrs Koro was on maternity leave at the time she apparently booked with her employer to be at this wedding; it does not seem to me, even if that is right, that it really makes much difference. She points out that Mrs Koro's daughter has only recently been born; I have dealt with that: she is now 13-months and apparently will be able to play some part in this wedding.

1. Those are the factors that I must weigh up. It seems to me the overwhelming factor is that the application was made very promptly and that Mrs Koro is clearly a crucial witness but the Tribunal did not seek any kind of dates to avoid. I am persuaded that Mrs Koro genuinely intends to be away for a genuine reason and it seems to me that, weighing everything up, the Tribunal ought back in May to have allowed for an adjournment and sought dates to avoid. It would be very unfair if that position were now changed because we are now in late July, given that the passage of time since the original application cannot be blamed in any way on the Respondent. It therefore seems to me there should be an adjournment and the Norwich Tribunal should now offer alternative dates and I so rule. I hope the Norwich Tribunal will not think that I am stepping too far on their toes in dealing with the application but it seemed to me that a decision should be made promptly and I am in possession of all the material.

1. The appeal is allowed. The case is adjourned to a date to be fixed by the Norwich Tribunal.