Appeal No.	 EAT/696/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 December 1996

Before
HIS HONOUR JUDGE D M LEVY QC
MR A C BLYGHTON
MR D J HODGKINS CB

 MR K S RAI	APPELLANT

BUCKINGHAMSHIRE COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS CAMERON
(Of Counsel)
ELAAS	

			JUDGE LEVY QC:   This is not the easiest of applications on a Preliminary Hearing.  Mr Rai was an employee of the Buckinghamshire County Council.  The time came when he was dismissed.  He claimed that he was dismissed following unfair selection for redundancy; that the dismissal was unfair and that he suffered racial discrimination.  He submitted an application to the Industrial Tribunal received on 18 July 1995 so claiming.  The employer’s Notice of Appearance came in a little time later, and suggested that there was a true redundancy.  A hearing date was originally fixed for 30 October 1995.  However by an Interlocutory order that was postponed to a date to be fixed.  The order stated that a further postponement would only be granted in exceptional circumstances.  Then in January 1996 Mr Rai sought a further adjournment.  On 4 January that request was refused by the Chairman.  On 11 January, having received another letter from Mr Rai, he stood by that, but in a document inadvertently dated 24 January 1995 (when it was clearly 1996) he allowed the adjournment.  The Interlocutory Order reads:
“The hearing of this case on Mon 5 to Wed 7 February 1996 has been postponed on the directions of the Chairman.
The hearing will now take place on a date to be fixed.
Once a date has been arranged, the Chairman will only grant a further postponement in exceptional circumstances.”

	Ms Cameron who appears on the ELAAS scheme for Mr Rai accepts that the next date which was 15-17 May 1996 was notified to Mr Rai soon after.  On the eve of the hearing the Tribunal received a number of letters seeking an adjournment.  One of them was from the Senior Complaints Officer of the Commission for Racial Equality dated 10 May 1996.  The last paragraph of it reads:
“Having spoken to Mr Rai about this matter, it is clear that he will be in no fit position to argue his case, which is of some complexity, without proper legal assistance.  In the circumstances, I am writing on his behalf at this late stage, to request a postponement of the hearing so that we can be in a position to give full consideration to his request for Representation.”

	Mr Rai himself wrote a letter on 13 May 1996 to the Regional Secretary when he had learned that he was unable to secure a postponement.  In the course of that letter he said:
“Initially, after the unfair dismissal, I was advised by the local CAB to seek representation from PAS (Personnel Advisory Service).  Unfortunately, as you know they were unable to inform me even about the first hearing date.  Therefore, it was too late to put the case together, so I asked for the first postponement which was granted.
So my job was to p put the case together, which was done and documents are exchanged.  I have all the witnesses and evidence require for the case.  So I have a strong case.”...

Having a strong case does not follow from having the witnesses and evidence required.
“Mr John Fernandes, Chair of CAFAS being my representative, after PAS, appointed a solicitor, Mr P Anthony (Ratip Partnership).  They applied for the legal advice from the Barrister.  So we were due to receive a report from the Counsel chambers.  Therefore, everything was in place and on time.
Unfortunately, to my surprise, that advice never came through and Ratip Partnership then withdrew saying that they did not know that the case was too large and they were already extremely busy.”

The letter went on giving further information to the Tribunal as to why a postponement should be made.

	On 13 May 1996, at the same time as Mr Rai wrote that letter, a Mr J Fernandes of the Council for Academic Freedom & Academic Standards wrote a letter to the Regional Secretary saying that:
“Mr Rai has instructed me to inform you that he has decided to withdraw his case against Buckinghamshire Education Authorities.
......
We would at this last minute plead further for an adjournment.  If the answer is in the negative, then Mr Rai has no other alternative but to withdraw the case, as he does not feel himself competent to represent himself, as the case is highly complex.”

	On 14 May 1996 Miss Pollock wrote on behalf of the Regional Secretary to Mr Fernandes of CAFAS saying:
“I refer to your letter of 13 May and to Mr Rai’s letter of the same date, both of which have been referred to a Chairman of the Industrial Tribunals.
The Chairman again refuses your requests to postpone the hearing of this case.  The Tribunal now accepts that Mr Rai has now withdrawn his application and a formal Decision to that effect will be issued in due course.”

The formal decision was sent to the parties on 20 May.  The application was dismissed on withdrawal by the Applicant.  

	A Chairman who has the duty of deciding whether a case should be adjourned for a second time has a heavy onus, particularly when he has matters before him such as those put forward in the Commission for Racial Equality’s letter of 10 May and that of CAFAS.  However, we are unable to conclude that no Chairman exercising his discretion properly could come to the decision which this Chairman reached, although other Chairman might well have come to another decision.  An attack on the way the discretion of the Tribunal has been exercised can only succeed if the discretion was wrongly exercised.  On the ‘ex parte’ procedure followed by this Tribunal, the appeal will be allowed to go forward if there is an arguable case that the Chairman wrongly exercised his discretion.  Although as we say we could see that in this case other Chairman might have come to another decision, none of us can see that the decision actually given can be impeached.  Having regard to that finding, we think there is no arguable case to go forward and therefore we shall dismiss the appeal at this stage.

	We thank Miss Cameron very much indeed for her assistance which has made us pause for a long time before we reached our decision.