United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 347_94_2604

Appeal No. EAT/347/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 April 1994

Before

HIS HONOUR JUDGE J PEPPITT QC

MR T S BATHO

MR D O GLADWIN CBE JP

---

MR J F SOUTHWARD          APPELLANT

LONDON BOROUGH OF BARKING & DAGENHAM          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant NO ATTENDANCE OR

REPRESENTATION BY OR ON BEHALF OF THE

APPELLANT

For the Respondents MR PETER IRVIN

(OF COUNSEL)

MR J K WELCHMAN

(COUNCIL SOLICITOR)

London Borough of Barking & Dagenham

Town Hall

Barking

Essex IG11 7LU


 


JUDGE PEPPITT QC: This is an appeal from a decision of the Regional Chairman who on the 22 April refused the Appellant's application for an adjournment of a two day hearing of his claim of unfair dismissal, due to be heard in the London North Industrial Tribunal on the 27 April and the following day the 28. The application for an adjournment was made by fax received on the 21 April and reads as follows:

"Re hearing 27/28 April.

I refer to a telephone conversation today. I confirm that I seek postponement of the above. I am unwell with asthma, a condition which I have endured for some years as the Respondent is aware. Also I am unable to meet with my representative, Mr Burton, before the above date. Mr Burton, is then on holiday for two weeks."

The Chairman's decision was in the following terms:

"There will always be a risk of an asthmatic attack. If the applicant is unwell on the day he will have to make an application to the Tribunal."

The Appellant's reply was a letter to the Regional Office of the Industrial Tribunals dated the 23 April. In that letter after expressing his disgust with the decision, the Appellant writes:

"Your Chairman makes light of a serious medical condition, three thousand people a year die from asthma, one every three hours. I suffer from Chronic Asthma which is a medical condition which is permanently with me, this puts me in a high risk situation. I take twenty (yes 20) inhalations of drugs every day to control my situation. When I endure an attack it lasts for two or three weeks. Last year I was fairly fortunate, however in the previous five years I had up to four attacks in a year. This together with financial circumstances were my prime reasons for moving home into the country. My former employer is well aware of this medical condition.

I will not be fit to attend the tribunal on this week, so I shall not risk joining the statistics previously mentioned by travelling to London.

It is for comment that this letter was not accompanied by a medical report. Nor has any medical report been provided by the Appellant in support of his application to adjourn the hearing. Moreover as we read the Appellant's letters of the 21 and 23 April he is not suggesting that he is currently in one of the acute asthmatic phases to which he refers. He merely asserts that he is chronic asthmatic and does not want to risk exacerbating the position by coming to London to attend his Tribunal. There is nothing in those letters which suggest when, or even if, the Appellant would be fit to attend a hearing, if the current hearing is adjourned.

We have considered the Appellant's appeal on the basis of the documents which he submitted. He has not appeared before us. The Respondents have appeared by Mr Irvin and they have produced to us their letter dated the 21 April to the Chairman of the London North Industrial Tribunal setting out the reasons why this application was opposed. Briefly, this is a comparatively old case, the dismissal having taken place nearly two years ago. The fixture for the 27 and 28 April had been agreed on the 15 September last year, and the Respondents had made all due preparations for a hearing on that date, including making available as witnesses, the Chief Executive of their Authority, Mr Smith, and the Chief Internal Auditor, Mr Russell, both men have extremely busy time tables.

That was the material before the Chairman when he made his decision. That decision is one which we can only interfere with on the Wednesbury principle. It seems to us that there was abundant material before the Chairman which justified the decision which he made, and it would be quite impossible for us to say that the decision was unreasonable in the Wednesbury sense. Accordingly, this appeal must be dismissed.