Appeal No. EAT/661/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 November 2001

Before
HIS HONOUR JUDGE WILKIE QC
MR D J HODGKINS CB
MRS T A MARSLAND

MR HUSSEIN SARVESTANY & SIAMAK HASHENZADEH	APPELLANTS
T/A PLUMSTEAD DENTAL SURGERY

MRS J A JONES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MR C HENSON
(Representative)
Professional Personnel Consultants Limited
Enterprise House
Great North Road
Little Paxton
Cambridgeshire PE 19 6BP	

JUDGE WILKIE QC:

1.	This is an appeal by the partners of the Plumstead Dental Surgery against a decision of the Employment Tribunal, sitting in London South on 20 March 2001, which upheld a complaint by Mrs Jones of unlawful sex discrimination and ordered that the respondent pay her compensation of £3,219, plus interest.  The ground of the appeal is that the Tribunal is said to have exercised its discretion to refuse a postponement of the hearing in such a way as was unlawful.  The appellant had initially been represented by solicitors, Messrs Le Brasseur J Tickle, who had filed a Notice of Appearance on behalf of the appellant and, as late as 5 March, had complied with the Tribunal’s order in respect of the supply of documentation.  The letter notifying the hearing date of 20 March 2001 was sent by the Tribunal to Le Brasseur J Tickle on 12 December 2000, well in advance of the 14 day notice period, and certainly one which would ensure that the deeming provisions of service would have resulted in the Notice of Hearing being received well in time.

2.	The appellants ceased to instruct Le Brasseur J Tickle on 13 March and instructed Mr Lock, of Professional Personnel Consultants Limited.  We have had the advantage this morning of being addressed by Mr Henson, also of that organisation and, we may say, with great courtesy and succinctness.  It appears that Mr Lock contacted the Tribunal on 13 March to enquire whether the case had been listed and, if so, when was the hearing date, and within a day or so, he was told it was 20 March which gave him a little less than a week to prepare the case.

3.	He apparently took a tactical decision to pursue a single track approach, namely, to try by repeated applications to the Tribunal in writing, to obtain a postponement of the hearing date.  He decided not to act prudentially by doing what he could in the meantime to prepare his client’s case lest his application for a postponement did not succeed.

4.	The Chairman initially rejected the application for a postponement in writing.  At some point during that week Messrs Le Brasseur J Tickle wrote to the Tribunal to say that they had not in fact received notification of the hearing date but nonetheless the Chairman maintained his decision not to grant a postponement.

5.	At the commencement of the hearing on 20 March, it appears that the appellant, or the partner of the appellants who was the subject of the complaint, Mr Sarvestany, was not at the Tribunal.  Mr Lock renewed his application for a postponement verbally and it became apparent during the application that Mr Lock had in fact only made contact with Mr Sarvestany on late Monday, the day before the hearing.  Prior to that he had made no attempt to obtain instructions.  The applicant was represented and her representatives opposed the adjournment.  Her contention was that because matters had also been before the General Medical Council and that Mr Lock had received papers in respect of those, he had all the information he needed to resist the claim and had it since 13 March.  The matter was a relatively simple one of a factual dispute as to whether certain incidents between the applicant and Mr Sarvestany had occurred.

6.	Before the Tribunal made a decision, the Chairman suggested to Mr Lock that he contact the appellant by telephone to see whether, if the hearing were put back, the appellant could attend.  Mr Lock took instructions and notified the Tribunal that Mr Sarvestany could be available and had made arrangements for him to be at the Tribunal to start at 2pm.  Accordingly, the Tribunal refused the application for a postponement but agreed to delay the start of the hearing until 2pm in order to give Mr Lock the opportunity to have his client in attendance.

7.	It is apparent from the terms of the letter written by Mr Lock seeking a review, that the first time that he met Mr Sarvestany, was, the period of the adjournment, some two and a half hours. 

8.	It is said that the Tribunal has exercised its discretion unlawfully in that, effectively, it became apparent that the due fourteen day’s notice had not been received by the representatives of the appellant and, furthermore, that the Tribunal had failed to have regard to the interests of justice of both parties and that by refusing the postponement it had denied the appellants Human rights by denying a proper opportunity to prepare the case and to present their case.

9.	In our judgment, this is not an appeal which on these grounds has any reasonable prospect of success.  The Tribunal went carefully into the history of the matter, well knew that the solicitors were saying that they had not received the due notice but had specific regard to the conduct of Mr Lock and, in particular, his failure to act expeditiously in seeking to prepare his client’s case as best he could, whereas he had focussed exclusively on trying repeatedly to obtain an adjournment.  Given the nature of the claim which was essentially a short matter of a disputed few incidents, apparently one which was conducted from start to finish in the course of the same day starting at 2pm and in view of the fact that the Tribunal gave the appellant the indulgence of the whole morning to prepare the case which had previously not been prepared, we can see no basis for saying that this Employment Tribunal exercised its discretion unlawfully.

10.	There is a second limb to the appellant’s appeal and that is, that in the application of the applicant, there was reference to a conversation between her and the Practice Manager of the dentist, Debbie Hunt, which she plainly intended to rely on as corroboration of her allegation of misconduct against Mr Sarvestany.

11.	In the course of the evidence of Mr Sarvestany, it appears that for the first time that he suggested that Mrs Hunt would not be available to give evidence to the Tribunal on that conversation because she was ill on 20 March.

12.	It appears, and Mr Henson helpfully confirms this, that at no stage during the hearing of 20 March or in advance of the hearing of 20 March, did Mr Lock ask the Tribunal to adjourn the hearing in order to enable Mrs Hunt to attend.  He raised this question in his letter seeking a review of the Tribunal’s decision and it is apparent that he was then saying that the Tribunal ought of its own motion to have raised the question of Mrs Hunt’s apparent unavailability to give evidence and should itself have adjourned the case in order to give her an opportunity to attend.  As a basis for launching an appeal, in our judgment, that is quite hopeless.  Mr Lock was engaged to represent the appellant.  If Mr Lock had thought that her evidence might have been useful to his client it was always open to him at the conclusion of the evidence on that day, to have asked the Tribunal to adjourn the case part heard in order to give Mrs Hunt the opportunity to give her evidence.  It appears that he did not do so, for whatever reason, and we think it unrealistic to have expected the Tribunal itself to have volunteered an adjournment when neither party’s representative was seeking an adjournment for that purpose.  

13.	Therefore, on that basis as well, we conclude that there is no reasonable prospect of a successful appeal and therefore on all of these grounds we dismiss this appeal at this stage without requiring it to go forward to a full hearing.