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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> G B M Services Ltd v Oyeghe [1992] UKEAT 402_92_1507 (15 July 1992)
URL: http://www.bailii.org/uk/cases/UKEAT/1992/402_92_1507.html
Cite as: [1992] UKEAT 402_92_1507
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MRS M E SUNDERLAND
MR G H WRIGHT MBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR O WISE
(Of Counsel)
Biddle & Co
Solicitors
1 Gresham Street
LONDON
EC2
For the Respondent MR P CRAMPIN
Free Representation Unit
13 Gray's Inn Square
LONDON
WC1R 5JP
MR JUSTICE WOOD (PRESIDENT): This is an appeal by G M B Services Ltd, who were the Respondents in an application by Mr Oyeghe for unfair dismissal, against a decision by a Chairman of Industrial Tribunals who on the 7th May 1992 refused an application on behalf of the Company for the adjournment of a hearing to assess compensation in respect of a finding made earlier in favour of the Applicant on the basis of unfair dismissal.
It is true that there is no full set of Reasons attached to the Notice of Appeal dated 21st May 1992, but this was an interlocutory matter and in the circumstances, the point not having been taken until today, we tend to dispose of the requirement of Full Reasons under Rule 32 of the Employment Appeal Tribunal Rules.
In order to understand and to investigate the decision of the 7th May it is necessary to look at the history of the matter. This was a decision in the exercise of a very wide discretion, and as it is a wide discretion this Court, like any appellate court, is slow to interfere with that decision and will generally only do so on the basis of the Wednesbury Rules.
The Originating Application was dated 26th April 1991. The facts fell within a short compass in that the Applicant was working for "G M B" as a cleaner at the "Liberty" store in London. In the September of 1990 he had an operation for a cataract and was off work for some weeks; when he returned he had problems with his sight. He alleges that on the 28th February 1991 he was summarily dismissed. The Company although admitting in their Notice of Appearance that there was a dismissal, nevertheless, put forward a mutual agreement. So the issue here was on what happened on the 28th February 1991.
A date was fixed for the hearing of the matter, which date was the 19th July 1991. We cannot but know that those dates are fixed after consultation with both parties for the convenience of advocates and also for the convenience of witnesses.
On the day before, the 18th July, Mr Tyler, a partner in Messrs Biddle & Co, Solicitors, found that there was another matter which required his attention. It was a matter of some substance and he felt that he had to give it priority and that he would not be able to attend the hearing before the Industrial Tribunal on Friday 19th July.
The Applicant was being represented by Mr Crampin of the Free Representation Unit. There were telephone calls between Mr Tyler and Mr Crampin. Mr Crampin told us that what occurred, and we only have it from him at this stage, is that early in the afternoon Mr Tyler `phoned asking for an agreed adjournment. Mr Crampin agreed to an adjournment for one week if, Messrs Biddle through Mr Tyler, could obtain an adjournment. Somewhat later he telephoned the Industrial Tribunal Regional Office and asked if an application for adjournment had been received, he was told that it had not. He therefore telephoned Mr Tyler and told him that the Regional Office had not received a request for adjournment and told him that he, Mr Tyler, would have to make arrangements to apply the following day. That last telephone call took place at about 4.30 pm.
On the Friday Mr Crampin attended at the Industrial Tribunal and informed them of the previous day's events. The Tribunal then, naturally, took steps to make enquiries as to whether any application had been made for an adjournment and they were told that it had not. They therefore decided to proceed with the hearing. In fact a letter had been sent by fax to the Central Office of Industrial Tribunals and that letter is dated 18th July 1991. We have a copy of the letter but we do not have the faxed copy so as to know the time that it was received. In any event it was not sent to the Regional Office. Although addressed to the Regional Office it was sent to Central Office. The Tribunal, therefore, continued with the matter and decided in favour of the Applicant.
Following that, the Company, through their Solicitor, sought a Review and that was requested by a letter of the 8th August 1991. The Review was heard on the 2nd December with both Mr Tyler and Mr Crampin appearing, at the end of which hearing the Tribunal gave Full Reasons. It was a full Tribunal hearing not the Chairman alone, and that decision was promulgated on the 17th January 1992.
A Notice of Appeal against that refusal to hear a Review was dated 27th February 1992. Thereafter the history of the matter was that an application was made to the learned Chairman to adjourn. That was requested by letter of the 2nd March 1992, is was refused initially by a letter of the 24th March. By a letter of 2nd April the Company's Solicitors sought an oral hearing that took place on the 6th May with both Mr Tyler and Mr Crampin present and the decision was made to refuse the application to review.
Mr Wise, who, if we may say so, has said everything that possibly could be said on behalf of his clients, has argued on the basis of the Notice of Appeal against this Interlocutory decision that there would be, basically, a waste of money if the compensation hearing continued. Secondly, he submits, that there would be a complication of the issues because health and other matters are clearly in issue in the compensation and would be material if there was a full re-hearing of the initial claim. He submits also, that even if an award were made and application made to the County Court to enforce the award, there would, in any event, be a stay pending the termination of the main appeal which was against the refusal to review. It should perhaps be said, that in that last event of course, the money could be paid into Court where it would earn interest.
However, those are matters which were clearly before, and could have been raised before the learned Chairman, when he refused to adjourn the matter and it is for us to see whether in all the circumstances, on the basis of the Wednesbury approach this decision could have been said to be one which the learned Chairman could not reasonably have reached on the information and the matters before him.
In particular he must have had in mind the whole history of this case. It is apparent from the decision refusing the Review which we find before us on pages 10 onwards of the bundle, that he took into account what had occurred on the 18th and 19th July; he took into account the situation in which both parties found themselves; he took into account the fact that this was all at the last minute. But it impresses us that here was a situation where a date had been fixed for a hearing, where it has been made quite clear on what we have been told, and we have no reason to disbelieve Mr Crampin, that the arrangement was that an application would be made to adjourn, and if made, would not be opposed. An adjournment would be agreed for one week, but it may not have been possible with a programme before these busy Industrial Tribunals for the adjournment to be one week only, it might have to be adjourned for a number of weeks. However, the important thing is that the application was sent by fax. No attempt was made to make sure that the application had been received; no attempt was made to telephone the Regional Office; they could have telephoned on the 19th to ensure that the document faxed on the 18th had been received. The assumption seems to have been that because there is an application to adjourn, because it is not opposed, it will be adjourned and that is an attitude which this Industrial Tribunal clearly found, was unacceptable. We respectfully agree with them. They must have taken that into account, they must have taken into account the considerations which also apply on other occasions. For instance where an application is out of time and where Lord Denning and others and the Court of Appeal has said "well, the remedy to the clients may very well be against their advisers". We are not suggesting here that there is inevitably any remedy but that is a consideration which as was expressed in the documents before us, is a relevant one for the Tribunal to examine.
We find ourselves unable to say whether we would have reached the same decision or not but we find ourselves quite unable to say here that the decision to refuse the adjournment is one which the learned Chairman could not have reached in the exercise of his discretion. The factors put before us are all factors which must have been in his mind at the time. They are very obvious matters and despite the able arguments of Mr Wise, we find ourselves unable to disturb this decision.
This appeal is dismissed.