United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 694_94_2607

Appeal No. EAT/694/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 July 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D J JENKINS MBE

MR T C THOMAS CBE

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C C G SERVICES LTD          APPELLANTS

MISS R CONSIDINE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANTS

For the Respondents NO APPEARANCE BY OR

REPRESENTATION ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an eleventh-hour appeal from the decision of the Chairman of the Industrial Tribunal at London South by letter of today's date. He rejected a request for an adjournment of the hearing listed to take place tomorrow, 27th July. The letter states that, it is not normally the practice of the Tribunals to grant a postponement merely because a particular advocate will not be available on the date already fixed for the hearing. The papers have been sent to us as a matter of urgency, because the Respondents C C G Services Ltd, wish to appeal against that decision. They want us to order a postponement of the hearing.

The background to the appeal is that there are currently proceedings before the Industrial Tribunal at London South for sex discrimination. The proceedings are brought by Rachael Considine, who was employed by C C G Services Ltd as a chef between 3rd December 1993 and 8th March 1994. In her Originating Application presented on 23 March 1994, she gives details of her employment and of the circumstances in which she says that she was discriminated against because she "was a girl".

The proceedings are contested by C C G who put in a Notice of Appearance dated 19 April. C C G is stated in the Originating Application to have an address, care of Daily Express Newspapers at 245 Blackfriars Road, London, SE1. A Mr Jeremy Hooks' name is given as the representative of the employer. The telephone number is given. We have also in the papers a letter written to the Applicant by Mr Jeremy Hooks on behalf of C C G Services on 8 March 1994 relating to the termination of her employment. The letter bears the address of Blackfriars Road, SE1. The Notice of Appearance gives, as details of the employer's address, the name of a Group Personnel Manager, Elizabeth Davidson, based at an address in Bridge of Allan in Scotland. The Notice of Appearance raises the defence that Miss Considine's employment was terminated for substandard performance and poor timekeeping and was not motivated by sex discrimination. The hearing was fixed. A letter was written by C C G Services' Personnel Officer, Mr Willis from Bridge of Allan, saying that they had received notice of hearing in respect of their case for Wednesday, July 27th. The letter then requests that the hearing be postponed because, and I quote:

"Due to unavoidable circumstances our Group Personnel Manager Mrs Elizabeth Davidson will not be available to attend as C C G's representative on that date.

No particulars are given of the unavoidable circumstances preventing Miss Davidson's attendance. A letter was sent by the solicitors acting for Miss Considine, S J Oliver & Co. They wrote to the Industrial Tribunal at London South stating:

"With regard to the request for an adjournment that on their client's instructions they wish to proceed".

A further letter was sent to London South on 25 July and another today. The letter said that the hearing should be postponed because of "unavoidable circumstances" being the ill health of Miss Davidson. The letter went on,

"This request was not granted."

I pause to point out that it had not been pointed out to the Industrial Tribunal in the initial letter that the unavoidable circumstance was Miss Davidson's ill-health. The letter goes on,

"On arranging an alternative representative's travel from our Head Office in Scotland, it has been discovered there is a National rail strike on the date set for the hearing. It would therefore be extremely difficult to travel on this date, and the previous evening.

We therefore ask that our request to have the hearing postponed be reconsidered on these grounds."

A further letter was sent today to London South to a Miss Summerton of the London South Office in Croydon,

"Further to your conversation with Miss Davidson (currently on sick leave) I hereby request that you reconsider your decision. Miss Davidson has prepared the groundwork for the case, therefore details of the case are not known to any other manager. As such our case would be significantly prejudiced if it were to be dealt with by a stand in at the last minute".

They referred to the letter from S.J. Oliver requesting Further and Better Particulars and complained that the letter was wrongly sent to the London address and had not been received by them until yesterday and therefore they had not got an opportunity to provide those particulars. The letter finishes by saying,

"If you refuse the request Miss Davidson will be forced to travel from Scotland to London this evening even though she is ill and we implore you to look sympathetically on this".

We have been asked as a matter of urgency to consider an appeal against the refusal of a postponement in those circumstances. The letter to us today states that Miss Davidson carried out the necessary preparation for the case, but unfortunately became ill last Friday and is still on sick leave. They say they have considered the possibility of having another representative, but in view of the nature of the case and the seriousness of the claims of discrimination "it would be inappropriate to ask someone who is not familiar with the background to represent us at the last minute". The letter concludes:

"If the refusal is not overturned, Miss Davidson will be forced to travel from Scotland to London this evening even though she is ill"

They ask for sympathetic consideration. I have read those letters because they set out the totality of the material. The legal position is that this Tribunal is only entitled to interfere with a decision of an Industrial Tribunal or a Chairman of a Tribunal on grounds of error of law. The question whether the hearing should be postponed or not is a matter of discretion for the Industrial Tribunal. If the Industrial Tribunal takes account of all the relevant circumstances and disregards irrelevant circumstances, there are no grounds in law for interfering with their decision. The only other possible grounds for interfering would be if we were satisfied that no reasonable Tribunal, taking into account all the material before it, would have refused an adjournment.

Having considered the letters and the way that the application was put at various dates since the beginning of this week, we have come to the conclusion that we should not interfere with the decision of the Chairman to refuse to postpone the hearing. The initial application for the postponement made no mention of ill health. The position only emerged in later letters about the difficulty there might be in finding an alternative representative and that the alternative representative or Miss Davidson would have difficulty in getting to the Tribunal because of the current national rail dispute.

The position, as we see it, is this. If Miss Davidson is not well enough to travel, she should not travel. Medical evidence could be produced to the Tribunal tomorrow when an application can be made again for an adjournment. It would be possible for an alternative representative to travel to the Tribunal tomorrow by air, if necessary, together with the medical evidence and with explanations as to why it is difficult to deal with the case at short notice. It will be open to the Tribunal to reconsider the exercise of its discretion on the basis of any fresh material put before it. In our view, it is preferable that the application for an adjournment be dealt with in that way rather than by this Tribunal seeking to interfere with what appears to be a fully informed exercise of the Chairman's discretion.

For those reasons we shall dismiss the appeal. The case remains in the list at London South tomorrow.