United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 818_93_2701

Appeal No. EAT/818/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS C HOLROYD

MR R JACKSON

---

J H PRINTERS LTD          APPELLANTS

MS S M TAYLOR          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants NO APPEARANCE OR

REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): We have been asked to deal with this appeal by the Appellant, J H Printers Limited, in the absence of the Appellant and on the basis of written submissions.

The appeal in this case is against the decision of the Industrial Tribunal held at Manchester on the 11th August 1993. The Tribunal decided that the Applicant, Ms Taylor, had been unfairly dismissed by the Respondent, J H Printers Limited. They awarded her the sum of £4,094.00.

It appears from the reasons for the decision that J H Printers Limited did not attend the hearing. The reason for that will become apparent in a moment, The Tribunal used the Notice of Appearance put in by J H Printers Limited as a written representation. The Tribunal heard evidence from Mrs Taylor and from two other witnesses and held that J H Printers were in breach of the mutual trust and confidence which should exist between employer and employee. In the circumstances Ms Taylor had been constructively dismissed. In view of the treatment to which she had been subjected the Tribunal found this to be unfair dismissal.

The decision was notified to the parties on the 31st August 1993. On the next day a letter was written seeking a review of the decision. Mr Holland, who wrote on behalf of J H Printers, asked for a review on the grounds that he had been unable to attend, due to other commitments previously made and on the grounds that a witnesses' employer was unable to release her due to staff shortages and holidays. He stated that he should have been given an opportunity to answer what he considered to be untrue allegations made by Mrs Taylor. He stated that he had requested a postponement of the hearing of the 11th August, but that had been refused on two occasions as seen from enclosed copy letters. It appeared from those letters that Mr Holland wrote on behalf of J H Printers Limited to the Regional Office of the Industrial Tribunal on the 20th July 1993. He referred to a notice dated 16th July informing him of the date of the hearing. He stated that he and the witness he wished to call would be unable to make that date due to prior engagements. He asked for an alternative date. He also informed the Tribunal that J H Printers Limited had ceased trading in April on the grounds of insolvency.

It appears from the next letter of 3rd August 1993 that the Regional Office refused an adjournment. We do not have before us any documents which disclose the reason why the adjournment was refused. Mr Holland stated that he regarded the refusal as unbelievable. He referred to two previous occasions on which the hearing of this matter had been postponed. On one occasion there was a cancellation by the Tribunal. On another an adjournment was obtained by Mrs Taylor. It was granted for reasons of her inability to appear. He commented that he had been refused the same courtesy that had been accorded to Mrs Taylor. He submitted:

"it would seem to be a complete waste of tax payers money to proceed in my absence as Ms Taylor will win by default . . . and the witness are no longer paid employees of the company special arrangements have to be made with current employers for her to attend."

The application for a review on those grounds was refused by the Chairman for reasons stated in the decision notified to the parties on 21st September 1993. The application was refused on the grounds that it had no reasonable prospect of success. It is stated in the decision that the matter was heard by the Tribunal on the 11th August 1993; that J H Printers Ltd had not attended and the case had been dealt with on the basis of their written representations. It is stated also that J H Printers Limited are correct in referring to the applications for adjournments made by letter on the 20th July and 3rd August 1993. The decision simply records that the applications for adjournment had been refused. There is no reference in this decision to the reasons for the refusal. Unfortunately, we are unable to find in the scant documentation before us any statement, anywhere as to the grounds on which Mr Holland's two applications for adjournment were refused. It appears from the letters that he put forward grounds for an adjournment, namely that he would be unable to appear on the date fixed, 11th August, and that the witness he wished to call, who is now in other employment, would be unable to attend.

J H Printers Limited appeal against the decision of the 11th August 1993. A letter was sent by fax to this Tribunal on the 26th January 1994 in which it was stated by Mr Holland that he would be unable to attend the hearing on the 27th January 1994. The reasons are that he is unemployed, receiving no benefits, and is unable to afford the train fare to come to the hearing of the appeal. He attacks the truthfulness of Mrs Taylor. He complains in particular of the fact that the decision was made without him being able to attend and that he had been refused adjournments, although the Tribunal had itself, on a previous occasion, either cancelled the matter itself or granted an adjournment to Mrs Taylor.

In order to succeed on this preliminary hearing it is necessary to identify an arguable point of law. This is often difficult to establish in relation to the exercise of the discretion vested in the industrial tribunal and its chairmen in relation to the granting of adjournments. The legal position is that a tribunal may, in its discretion, postpone the day or time fixed for the hearing or may adjourn the hearing. This power may be exercised by the President or the chairman of the tribunal acting alone. It has been observed that the exercise by a tribunal of that discretion cannot easily be upset on appeal. It was held in the case of Bastik v. James Lane Turf Accountants Ltd [1979] ICR 778 by Mr Justice Arnold, a passage later approved by the Court of Appeal, that this Tribunal can only interfere with a decision refusing an adjournment (or a decision granting an adjournment), if there has been some taking into account by the Tribunal of a fact which it was not proper to take into account, or failure to take into account something which it was necessary to take into account, or if, viewed overall, the decision was one which, in the exercise of discretion, no reasonable chairman would have made. It is also emphasised in another case Jacobs v. Norsalta Ltd [1977] ICR 189, that the power to grant or refuse adjournments must not be used to defeat the general object of the legislation. It must be exercised judicially.

This case is one of those rare instances where this Tribunal should interfere with the exercise of the discretion. The application for the adjournment appears from the letters we have seen to have been made on grounds which would normally justify the grant of an adjournment; namely, the unavailability at the hearing of the party or one of his witnesses. It does not appear from any of the documents before us that any reason was ever given for rejecting the adjournment. The judicial exercise of discretion requires that a person should be given at least one reason why his application is refused. In the absence of any stated reason we are unable to see how a reasonable tribunal could have rejected an application for an adjournment based on the unavailability of a party and his witness on the date fixed for hearing.

There may be more background to this than the documents disclosed. But the documents that we have seen do not show that this is a case where a chairman of an industrial tribunal or the tribunal itself could infer that Mr Holland on behalf of J H Printers Ltd was seeking simply to put off a hearing without having adequate grounds.

As far as we know the 20th July was the first occasion on which he had sought an adjournment.

In those circumstances, we shall allow this appeal. We shall direct that this matter be remitted for hearing before an industrial tribunal differently constituted. We appreciate that this is not normally a course which would be taken by this Tribunal on a preliminary hearing. What we would normally do is allow the matter to proceed to a full hearing. But, unless there are any other materials available to a full hearing, we cannot see how a full hearing would arrive at any other decision than to allow this appeal. We will take this unusual course in deciding the matter now, but we will insert into the order, in case there is further documentation or evidence which we have not seen, that there shall be a liberty to Mrs Taylor to apply to this Tribunal to be heard on this matter, provided she gives such notice within seven days of being notified of this decision.

If she does not notify this Tribunal within seven days that she wishes to be heard the matter will automatically proceed to a re-hearing by a different industrial tribunal.

In those circumstances the appeal is allowed. The matter is remitted to a different industrial tribunal. That will proceed, unless Mrs Taylor within seven days notifies this Tribunal that she wishes to be heard in relation to this matter.