United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1203_95_1611

Appeal No. EAT/1203/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16th November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MRS M R SUNDERLAND JP

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MR MO OTOBO          APPELLANT

(1) KINGSMEAD PRIMARY SCHOOL

(2) J BROWN          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

INTERLOCUTORY - WRITTEN SUBMISSIONS

Revised


 


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APPEARANCES

NO APPEARANCES - WRITTEN SUBMISSIONS ONLY


 


MR JUSTICE MUMMERY (PRESIDENT): This is an interlocutory appeal brought to the Appeal Tribunal as a matter urgency because it effects the hearing of a case fixed to start in the Industrial Tribunal on Monday, 20th November 1995.

Over a year ago, on 12th September 1994, the applicant, Mr Otobo, presented an originating application complaining that he had been discriminated against in his position as a classroom teacher on racial grounds. The respondents to the case are Kingsmead Primary School and Miss J Brown.

The case was fixed to start on 20th November 1995 for two weeks. It was listed for a long time in advance. An application was made for the postponement of the hearing by letter of 12th November 1995. The application for postponement in that letter, was made on behalf of Mr Otobo by his representative Mr R A German. He wrote that he had been diagnosed as suffering from physical and mental exhaustion and was advised to take a complete rest for at least one month. He said:

"It will be impossible for me therefore to represent Mr Otobo as from November 20th 1995. I have in the past always met my deadlines and never requested a postponement. I regret very much the inconvenience this will cause to the Tribunal and the Respondents but because of the threat to my health at my age I am left with no option. Since I provide my services on a voluntary basis and since I work alone, it is impossible for me to get somebody to step into my shoes to present what is an involved and complex case.

I therefore respectfully request the Tribunal to postpone the hearing of this case until a date can be fixed and I am available to represent Mr Otobo who is the applicant in this case."

He faxed that letter on 12th November 1995. He later sent a medical certificate dated 13th November 1995 from Dr Lewis of Priory Road, Hampton, Middlesex. Certifying that Mr German was suffering from "stress", and is unable to attend work. No further details are given in the medical certificate.

The application for a postponement was opposed by the solicitors representing the respondents, Hodge Jones & Allen of Camden High Street, London N.W.1. They said in a letter of 14th November 1995 to the Stratford Office of the Industrial Tribunals, that their instructions were:

"... to oppose Mr German's request for adjournment ..."

for three reasons. First, the case had been listed a long time ago for two weeks. The Tribunal would not be able to find an alternative two week fixture for a considerable time. Secondly, although they appreciated that Mr German's illness put Mr Otobo in a difficult position, the nature of the illness led them to believe that it was uncertain when he would be better. It was possible that, if the case was adjourned, Mr German would still be unwell enough to represent Mr Otobo and he might still have to go ahead in any event without representation. Thirdly, they pointed out that Mr Otobo continued to be employed at Kingsmead Primary School. It was in the interests of him and the school that the matter should be resolved at the earliest possible opportunity. It had been outstanding for over a year and that was causing considerable distress to the respondents and to the individual respondent as well as considerable disruption at the school.

The decision of the Chairman, which is the subject of this appeal, was notified to Mr German on 15th November 1995. The decision was that the request was refused. The grounds stated:

"that it was 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."

There is another letter dated 15th November 1995 written in response to a telephone conversation which Mr German had on the morning of 15th November 1995 requesting the postponement. That letter said:

" The Chairman has asked me to inform you that if the postponement were to be granted the case would not be re-listed until August 1996. This is unfair on the Respondents and the Applicant. He adds that if you are unable to represent the Applicant you should consider instructing another representative.

The hearing stands as arranged."

The appeal served on 15th November 1995 is against the refusal to allow the postponement. The reason for the postponement relied on is the same, Mr German's inability to appear on medical grounds. It sets out that the second appeal is being made for the Industrial Tribunal Chairman to reconsider his decision, but that has been refused. The ground of appeal, signed by Mr German, is that he has been warned that at his age, nearly 69 years old, he would suffer a stroke if the stress from which he is suffering is prolonged or aggravated at this time.

We can only interfere with a decision of this kind, which involves the exercise of the discretion by the Tribunal Chairman, if it is shown that there is an error of law. It can only be shown that a exercise of discretion is erroneous in law if it is demonstrated that it is perverse, that no reasonable Chairman, appreciating all the facts relevant to the exercise of his discretion, could have reached this decision. In our judgment, that has not been shown in this case. The facts relevant to the exercise of the discretion were that the application was made near to the start of the hearing; that the hearing was going to be a long one, two weeks; that it had been fixed long ago. The postponement would mean that the case might not be relisted until the summer of 1996. The Chairman also took into account the fact that the postponement was sought on the grounds of the medical condition of the representative not of the applicant himself, and that it is possible to replace one representative by another. It was legitimate for the Chairman to take into account, as a general consideration, that adjournments should not be granted simply on the ground that a representative would not for one reason or another be available to argue the case. The Chairman knew that the representative was unwell, suffering from stress and that he was in a condition that might well get more serious if the case was not postponed.

It is clear that the Chairman was entitled to come to the decision he did on the basis of the various factors before him relevant to the exercise of his discretion. As there is no error of law in that exercise, we dismiss the appeal.

We would add this. It will be open to Mr Otobo or whoever represents him at the start of the hearing on 20th November 1995, to make a fresh application to the full Tribunal for a postponement. It is not for us to give any indication as to whether such an application should be made or if it is, what decision should be made on it. That would be a matter for the decision of the full Tribunal. The only decision taken so far is by the Chairman. He made, in the circumstances, a decision which a reasonable Chairman could make. The only order we make is that the appeal is dismissed on the grounds that there is no error of law in the order appealed against.