Appeal No.	 EAT/463/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 April 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR J R RIVERS
MR S M SPRINGER MBE

INTERCOLLEGIATE BOARD IN ORTHOPAEDIC 	APPELLANTS
SURGERY & ANOTHER

MR M S VISHWANATH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S LEVINSON
(Solicitor)
Messrs Paisner & Co
Solicitors
Bouverie House
154 Fleet Street
London
EC4A  2DQ	
For the Respondent	NO REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal against an Interlocutory decision of a Chairman, who is unidentified, of an Industrial Tribunal, refusing the Respondent’s application for a postponement.  The case is due to be heard on 14 April 1998.  The refusal of their application for an adjournment is contained in two facsimiles sent to the Respondent’s solicitors dated 6 April.

	The complaint to which the proceedings relate is of race discrimination, brought by a Consultant against, effectively, the FRCS Organisation.  The First and Second Respondents are responsible for the arrangements made, under which doctors seeking their Fellowship can complete the necessary qualifications for it.  It is the Applicant’s case that he has been refused the opportunity to move on to achieve his Fellowship by reason of direct discrimination by the Respondents.  

	It is the Respondent’s case that the reason why he has not been allowed to move on is because he does not comply with the requirements laid down in various regulations.

	The complaint was presented to an Industrial Tribunal on 11 October 1996.  The response was dated 22 November 1996.  There has been a Preliminary Hearing on two separate dates.  We understand that the Preliminary Hearing was adjourned and that those hearings took place in 1997.  The case was fixed for hearing on 29 October 1997 but was adjourned at the request of the Respondents.  They applied for an adjournment on 15 October, that is fourteen days before the scheduled hearing, and were granted their request the following day.  

	The grounds upon which that adjournment was sought was that the Respondents’ principal and only witness, a Mr Graham, would not be available.  It was pointed out that he had now retired and there had been some difficulty in communicating with him.  

	The next hearing date that was fixed was 20 January 1998.  In early January again the Respondents asked for the date to be vacated, on the grounds that Mr Graham, their witness, was not going to be available from 13 to 27 January as he was on holiday.  The Tribunal accordingly, having granted that application, fixed yet a further date, namely 23 March for the hearing of the complaint.  Immediately after that date was notified to the parties the Applicant requested a postponement on the grounds that his representative (not, I think, a legal representative) a Mr Malkan, was not going to be available.  The Tribunal acceded to that request, which was repeated in a fax of 22 February 1998, and fixed a hearing date for 14 April.

	The letter notifying the parties of the new hearing date was dated 21 March 1998, which is a Saturday.  Whatever its true date may have been, we accept, because we were told this, that it was not received by Messrs Paisner & Co until 25 March, which is a Wednesday.  It was not until 30 March that Messrs Paisner communicated first with the Industrial Tribunal to indicate that this date was not convenient to them.  

	The grounds upon which they were applying for the third time for a postponement of the hearing was firstly that their principle witness, Mr Graham, who is retired and lives in Scotland, has “previous commitments on that day which he is unable to rearrange”.  The second ground was that the solicitor in charge of the case was engaged in an Industrial Tribunal in Birmingham for the whole of the week commencing the 6 April (this week) and it was observed that the person whose complaint was being considered by the Birmingham Industrial Tribunal was the Applicant’s representative, Mr Malkan.  It is not entirely clear to us whether there is any significant overlap between those proceedings and the present one.  We suspect that if they are overlapping at all it can only be in a minor respect, because as we understand it, the proceedings involving Mr Malkan have been going for something like five to six weeks, whereas it is anticipated, presumably following the Preliminary Hearing to which I have referred, that the present proceedings brought by Mr Vishwanath will only last one day.

	That letter of 30 March was followed by a further letter of 2 April, which reads:
“We understand from a telephone call today that a Chairman has refused our request by fax of 30 March for postponement of the hearing listed on 14 April.”

The letter went on to invite the Tribunal to reconsider as a matter of urgency, and in the interests of justice, the various reasons set out below:
“1.	Our client’s only witness is not available on the proposed date.  Mr James Graham is a retired consultant surgeon who lives in Scotland.  He is a grandparent and has childcare responsibilities which his wife cannot meet on the proposed date .....”

The second ground was a repetition of the point as to the difficulties of the legal representative being able to do the necessary preparatory work and it was of course pointed out that the Easter weekend intervenes and that Easter Monday is the day immediately before the 14 April.

	The Industrial Tribunal responded to those two letters by the faxes of 6 April to which I have referred.  In what we take to be their first and longer fax the Regional Secretary of the Tribunals through a Mr John Why, indicated that a Chairman, unidentified, had considered carefully all that had been said and had balanced that against the desirability of bringing the case to a hearing without delay.  Paragraph 3 of the letter reads:
“The Chairman refuses your request for the following reason(s):
(1)	Mere inconvenience to witnesses is not a sufficient reason to grant a postponement: please state the reason for the inconvenience.
(2)	The date of hearing was agreed before it was fixed.  In that situation a postponement is not normally granted save in exceptional and unforeseen circumstances.  The circumstances in this case are neither.
(3)	It is not normally the practice of these Tribunals to postpone hearings because a particular representative is unable to attend.  The Chairman expects the representative to ensure that alternative representation is arranged.”

There was then a reference to the earlier postponement in October 1997, and it was noted that the same reason had been given for the postponement on that occasion, namely the unavailability of Mr Graham.

	Mr Levinson, on the Appellants’ behalf, has correctly observed that this fax would indicate that at the time when it was prepared and drafted, the Industrial Tribunal either did not have before it the letter of 2 April 1998, which specifies precisely why Mr Graham was said to be unavailable or it had been overlooked; hence, the comment “please state the reason for the inconvenience”.  Secondly, he points out, that the letter was entirely wrong when it asserted that the date of hearing was agreed before it was fixed.  Thirdly, he submitted to us, that the reason that a particular representative being unable to attend was not normally a good reason in the eyes of the Tribunal, was inconsistent with the very reason why the Applicant had been granted a postponement of the hearing on 23 March 1998.  He invites us to the view that in these circumstances there has been a plain mis-direction on the material before them and that the decision to refuse an adjournment cannot stand.

	In relation to the second and shorter letter, it seems to us that the Industrial Tribunal has by now, at any rate, taken into account everything that has been put before them by Messrs Paisner on behalf of the Respondents, because the first paragraph of that letter specifically refers to the later letter of the 2 April and it says as follows:
“A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.
The Chairman, being of the opinion that it is within your capacity to find another representative, refuses your request for the reasons given in refusing your request of 30th March 1998.
This advice confirms that given to you by telephone earlier this morning.”

	We should say at once that we regard the question as to whether cases should be brought for hearing or adjourned, as being usually very difficult decisions to make.  The interests of justice are not readily apparent in every case where such an application is made.  There has to be a balance between the interests of the parties, taking into account also the interests of the Tribunal and the interests of other litigants.  

	But that said, it seems to us in the circumstances, that we should refuse this appeal.  We are not satisfied that the decision of the Tribunal which was ultimately arrived at on 6 April 1998, can be categorised as erroneous in law, even if the earlier letter of that date does, as Mr Levinson points out, contain errors which might, had it stood on its own, have satisfied us that there had been a material mis-direction justifying us in interfering with the decision.

	Furthermore, if we are wrong about that, we would have, in the circumstances, exercised the power of the Industrail Tribunal ourselves, had we been persuaded that there had been a ms-discretion and it is our unanimous judgment that had we been called upon to exercise our judgment at this time, we ourselves would have refused the application for an adjournment as ably presented to us.

	This is a long-standing complaint of discrimination.  It is a case which has called for the management process of the Industrial Tribunal through the Preliminary Hearing process.  It is, as we understand it, a case which will last no more than a day, as it is presently estimated.  The Respondents will require no more than one witness, as they see it, to establish that the reason why the Applicant was refused advancement in the FRCS procedure was not because of his ethnic origin but because of the terms and conditions of the regulations themselves.  That is a short issue which should be heard and determined as soon as is practicable.  Insofar as Mr Graham may, and I am sure will, be inconvenienced, by having to come down to London so soon after the Easter holiday, we ourselves, were not impressed by the fact that he says that he has childcare responsibilities for his grandchildren.  We understand that his wife and the parents of the children are in fact around, albeit that each of the three of them is apparently otherwise occupied.  If it became necessary to provide alternative childcare arrangements so as to free Mr Graham to come down, we feel quite sure that the Respondents would be able to make the necessary arrangements.  If, as would appear to be the case, the issue is a narrow one, he will only be inconvenienced for one day.

	The interests of justice in this case do, we think, require that the case start on the 14th, even though we recognise it is going to be inconvenient and perhaps extremely difficult for the lawyers who are representing the Respondents.  But having regard to the history of the matter, we are satisfied that the Industrial Tribunal was entitled to refuse an adjournment in the exercise of a just discretion.  That said, if, of course, it were to transpire on 14 April that for one reason or another, the application for an adjournment would have to be renewed, it will of course be open to the Respondents to renew it, but we imagine that the Industrial Tribunal would wish to be satisfied that the Respondents have made all proper attempts to have the case proceed on that day.

	It seems to us desirable, at any rate, that the Applicant’s evidence should be heard as soon as possible.