United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 382_94_0505

Appeal No. EAT/382/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 1994

Before

HIS HONOUR JUDGE J HULL QC

MISS A MADDOCKS OBE

MR A D SCOTT

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MR K S O'BRADY          APPELLANT

PHILCOX GRAY & CO          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO ATTENDANCE OR

REPRESENTATION BY

OR ON BEHALF OF

THE APPELLANT

For the Respondents NO ATTENDANCE OR

REPRESENTATION BY

OR ON BEHALF OF

THE RESPONDENT


 


JUDGE HULL QC: This is an appeal to us by Mr O'Brady, an assistant Solicitor, who wishes to complain to the Industrial Tribunal of unfair dismissal. He complains that his application for an adjournment was refused and should have been granted. The position is that on the 11 April the Solicitors who were acting for him wrote saying that Mr O'Brady's legal representative would be absent on annual leave and would be unable to attend the Tribunal on 10 May. Nothing was heard in reply until very recently; the Regional Office did not write until the 28 April, which presumably did not arrive until the next day or the day after, saying that:

"The Chairman of the Tribunals instructed me to inform you that your request is refused, because unavailability of Representative not acceptable ground for postponement." [sic]

Of course there is a general rule that people who can obtain one legal representative can if that one should fall ill or go on holiday obtain the services of another, but that is entirely based on the practice of the Bar and the fact that Barristers are readily replaced because of the rules of the profession which require them to accept any work in Courts in which they practice. The rule does not apply to Solicitors. Of course it could be said of Solicitors that they have partners. But that is easy to say. In practice, it is very difficult to find a Solicitor advocate to substitute for the one originally employed in the case. Solicitors are obliged to charge by time and it would mean that a lot of the work would have to be redone by the new Solicitor in preparing the case and he would then have to charge for it.

What is said is that it is not possible for Mr O'Brady to obtain the services of any other colleague in the Solicitor's profession to appear for him. We think the Chairman, putting it shortly as he did, failed to give proper weight to these matters. We are fully conscious of the pressure of work on Industrial Tribunals and of the need to avoid waste of time. But more important than that (few things can be more important than that) justice should be done and we think that Mr O'Brady would have a real sense of injustice and might suffer substantive injustice if he attended without his proposed representative. We are therefore all agreed that we should allow this appeal and direct that the matter should indeed be adjourned to the first open date.

There is apparently no objection whatever to this application from the other side. In proceedings which are essentially between parties, although of course the adjournment may cause some inconvenience to the Tribunal itself. The practice of Courts is to accede to it if there is no objection, unless there is a very clear reason to the contrary; and we do not think there is a clear reason to the contrary.