United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 490_94_0706

Appeal No. EAT/490/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th June 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR T S BATHO

MR D GARFIELD DAVIES

---

SERCO SYSTEMS LTD          APPELLANTS

MS E A HOOKWAY          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR E SUTER

Consultant

For the Respondent NO APPEARANCE BY

OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Regional Chairman of the Industrial Tribunal at Bristol given on the 18th April 1994 in a case of constructive dismissal brought by Ms Hookway against her former employers, Serco Systems Limited.

The background to the appeal is that the hearing of Ms Hookway's application started on the 6th January 1994. She presented her case on that day but the Respondents had not started to present their case. The matter was then adjourned part heard. A date for the adjourned hearing was fixed, but had to be vacated. A new date then fixed, after some difficulty, for the 9th June 1994.

An application was made to the Chairman, on behalf of the Respondents, that the hearing for the 9th June 1994 should be postponed. The reason for the application was that an important witness for the Respondents on the adjourned hearing was a member of the Personnel Department, a Mrs Caroline Amey. Sadly her daughter has to undergo major surgery on the 8th June. Naturally, Mrs Amey wishes to be with her daughter rather than at the Industrial Tribunal on the 9th June.

The Chairman considered the grounds of the application and refused postponement for reasons sent to the parties on the same day. He said:

"Whilst the Regional Chairman has every sympathy with this witness, it was very difficult to rearrange the hearing to the present date, and the problems will be the same in fixing a new date. Also, this is a part-heard case and should be heard as soon as possible, bearing in mind that the last hearing was 6 January 1994, and the fact that the original date, to which it was adjourned, has already had to be vacated."

The decision is amplified in a letter of the 27th May 1994 sent to Industrial Relations Workshop who are acting as representatives of the Respondents. The letter said:

"I am directed to inform you that this case will be heard on 9 June 1994, but that the Chairman would be willing to accept the evidence of Mrs Amey in the form of a sworn written statement.

If, however, it became necessary at the hearing for Mrs Amey to be present the Tribunal would consider any application for postponement that the parties may wish to make."

On the hearing of this appeal Mr Suter submitted on behalf of Serco Systems Limited that the decision of the Chairman erred in law, because his refusal to grant an adjournment of the hearing for the 9th June 1994 was a denial of natural justice and would result in substantial injustice to his client because it would not be possible for an important witness, when his clients wished to call, to be present. He referred us to a number of cases which emphasise the importance of doing of justice by hearing evidence from the parties and from their witnesses. He referred us in particular to Rose v. Humbles (at first instance) [1970] 2 AER 519 and on appeal in [1972] 1 AER 314. An error of law was committed in that case by the General Commissioners of Income Tax in refusing to grant an adjournment, so that a tax payer suffering from ill-health was thereby denied the opportunity to give evidence. The judgments in the Court of Appeal point out how great importance would be attached in such a case to the tax payer's evidence and his demeanour under cross examination and, how in a case where the outcome depended on whether a person was believed or not, it was necessary to give a proper opportunity to that person to give evidence. Mr Suter also referred us to Maxwell v. Keun [1928] 1 KBR 645 at 653 where the Court of Appeal made it clear that an appellate court, though slow to interfere with the discretion of an inferior court on such a question as an adjournment, could interfere where it was satisfied that the result of refusing to order an adjournment would be to defeat the rights of the parties altogether and to create an injustice to one or other of the parties. In such a case an appellate court had power, indeed a duty, to review the order of the inferior court which refused an adjournment. Mr Suter correctly submitted that, as appears from the case of Jacobs v. Norsalta [1977] ICR 189 at 191, the Industrial Tribunal has a discretion, which it must exercise judicially, to postpone or adjourn a case provided that there is a good, reasonable ground for doing so. That statement of principle is consistent with the rules which govern the conduct of industrial tribunals. The 1993 Regulations provide in Rule 9 of Schedule 1 that:

"(1) The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.

(2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."

There is no dispute about the relevant legal rules and the principles.

The crucial question on this appeal is whether the Chairman was in error of law in refusing to postpone the hearing of the 9th June 1994. In our judgment, there was no error of law for these reasons. First, he made it clear that he has not fettered his discretion or that of the Tribunal to deal with an application for an adjournment which may be made on the 9th June if Mrs Amey is, for a good reason, unable to attend to give evidence and be cross examined. He has left the matter open for the decision of the Tribunal having regard to what considerations appear to them to be relevant. Secondly, it appears from what Mr Suter has told us that it may not be necessary for him to make an application for a postponement. The Respondents will open their case on the 9th June. He has five or six witnesses. It will be necessary for them to give evidence. Ms Hookway, who is conducting her own case, will be entitled to cross examine them. It may be that, if there are as many witnesses as that, it will take the whole, or most of the day, for that evidence to be completed. In those circumstances it may well be necessary for the case to be adjourned to hear the evidence of Mrs Amey and to hear the submissions of each party on the facts and the law.

The position, in our view, is that this appeal is premature and hypothetical. It is premature because it is made before there has been any final decision on the part of the Tribunal precluding Mrs Amey from giving oral evidence. The matter has been left open for the 9th June to be dealt with in the light of the circumstances then prevailing. The appeal is hypothetical since an order precluding Mrs Amey giving oral evidence may never be made. It has not been made so far. We emphasise that the order made so far is quite simply that the case fixed for the 9th June will not be vacated. It will go on then and will deal with whatever witnesses Mr Suter has available for the Tribunal. For the reasons already explained the position of Mrs Amey is yet to be settled. If Mr Suter is able to satisfy the Tribunal, as he seems confident he will be able to, that Mrs Amey is an important witness and that there is a good reason why she cannot attend on the 9th June, he can make his application with good prospects of success. If, contrary to his expectations, the Tribunal refuses his application for a postponement for Mrs Amey to give evidence, then he may have a decision which he can appeal to this Tribunal on the grounds that it would be an error of law and a denial of natural justice for the Tribunal to proceed to its decision without hearing Mrs Amey give her evidence.

For those reasons we dismiss this appeal.