United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1308_95_1212

Appeal No. EAT/1308/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 December 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

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(1) SEFTON MBC

(2) CHATTERTON (BUILDING SERVICES) LTD          APPELLANTS

(1) MR J A LUNN AND OTHERS

(2) BUILDING AND STRUCTURAL SERVICES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised


 


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APPEARANCES

For the 1st Appellant MR JOHN CAVANAGH

(of Counsel)

Mr J M W Lewis

Deputy Director of Legal and Administrative Services

Sefton Metropolitan Borough Council

Town Hall

Lord Street

Southport

PR8 1DA

For the 2nd Appellant MR ANDREW CLARK

(of Counsel)

Susan A Thompson

Messrs Rowe & Maw

20 Black Friars Lane

London

EC4V 6HD

For the Respondents NO APPEARANCE BY OR ON BEHALF OF ANY OTHER PARTY


 


MR JUSTICE MUMMERY (PRESIDENT): This is an interlocutory appeal against the refusal of the Chairman of the Industrial Tribunal in Liverpool to accede to a joint application by the parties for an adjournment of the preliminary hearing in consolidated proceedings listed for hearing in Liverpool for three days, starting on Monday 18 December.

In the listing of cases, the Tribunal has a discretion. As to the postponement of cases listed, the Chairman has a discretion conferred by Rule 13(7) of the Industrial Tribunal Rules of Procedure. Under that provision:

"13(7) A chairman may postpone the day or time fixed for, or adjourn, any hearing (particularly where an enactment provides for conciliation in relation to the case, for the purpose of giving an opportunity for the case to be settled by way of conciliation and withdrawn) and vary such postponement or adjournment."

In this case negotiations have been going on for some time between the parties in a complicated Transfer of Undertakings case, but they have still not produced a settlement.

On 12 September 1995 the Industrial Tribunal in Liverpool at Liverpool notified the parties that the case would be heard on Monday 18 December to Wednesday 20 December inclusive. The letter giving that notice contains this warning:

"Unless there are wholly exceptional circumstances no application for postponement due to non-availability of witnesses or for other reasons, will be entertained if it is received more than 14 days after the date of the notice.

Any such application must be in writing and state the full grounds."

In this case negotiations carried on. There was a meeting on 7 December. On 8 December letters to the Industrial Tribunal were written on behalf of the parties saying that the settlement negotiations were at an advanced stage and requesting that the three-day hearing days be vacated and the matter re-listed for the first available date in the New Year by which time it was hoped that a settlement would have been concluded. Each of the parties' solicitors wrote letters in similar terms. A more lengthy explanation was sent by the firm of Brian Thompson and Partners, who act for the Applicants.

The Chairman refused to grant the postponement. He sent a letter dated 11 December to Brian Thompson and Partners, with copies to the Solicitors acting for the other parties. The Solicitors were Sefton Metropolitan Borough Council, Brian Moore and Richard Hall and Partners. The Chairman said:

"Thank you for your two letters dated 8 December 1995, which, together with letters from the three respondents representatives, have been referred to a Chairman of Industrial Tribunals.

The Chairman has instructed me to write and say that the parties have had ample time to explore settlement.

These cases were listed for a three day hearing as early as August, yet this is the first suggestion that that will be insufficient. In any event, your request comes more than fourteen days since notification of the hearing. The prospect of settlement is not an `exceptional circumstance' regardless of the number of applicants.

The cases will therefore remain in the list."

There were further representations to the office of Industrial Tribunals in Liverpool. The letter sent by Brian Thompson and Partners on 12 December set out the position saying that there are a large number of Applicants, 137 falling into three different categories. The letter explains who belongs to those categories. It says that there have been negotiations over a number of months. The final meeting to discuss settlement terms took place on 7 December. The letter continues:

"I have now met with the officers of the four trade unions representing the Applicants, and it is proposed to write to each Applicant seeking instructions upon a set of proposals. A mass meeting of Applicants may be arranged to explain the basis of the proposals which involve more than simply a cash settlement. I do not consider that there is sufficient time to take instructions by 18th December, and, bearing in mind the time of year, one could not guarantee that letters in relation to an offer would even be received by Applicants within this timescale.

I am anxious to avoid unnecessary delay, but also when the parties have put so much time and effort into the creation of a settlement opportunity I believe that some chance should be given for matters to be resolved. As the Tribunal will appreciate even if I believe that a proposal is reasonable I cannot withdraw or compromise the proceedings in the Tribunal without obtaining a decision from each individual Applicant. I would therefore repeat my request for a postponement of this case. From the Applicants' side I cannot answer for when the Respondents will or will not put proposals forward, but once proposals are made I must take instructions upon them and in the meantime take all steps to save the legal costs of the four trade unions which would be incurred if this hearing proceeds in the light of the above information. ... "

I have not seen a letter in reply, but I understand from Counsel that the Chairman has persisted in the decision to refuse the adjournment.

In those circumstances, it has been submitted by Mr Clark and by Mr Cavanagh on behalf of the Respondents, Sefton Metropolitan Borough Council and Chatterton (Building Services) Ltd, that there is an error of law in the Chairman's decision.

In support of the application I have been referred, not only to the Industrial Tribunals Rules, but also to the principles laid down in the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908. It is submitted that, in the light of the various matters submitted in correspondence, it is unreasonable and perverse of the Chairman to refuse the adjournment. They point to a number of factors; the advanced stage of the negotiations which are expected to be successfully concluded; the logistic difficulties of putting the proposals to trade union representatives and the Applicants; the practical difficulties in getting the consent of all the Applicants to a settlement before 18 December; the fact that, if an adjournment is not granted, costs of the preliminary hearing will be incurred which may jeopardise the settlement; and the fact that a short adjournment would not prejudice any of the parties, whereas the refusal of an adjournment would prejudice all the parties. If no settlement is reached as a consequence the Tribunal itself would suffer prejudice, because the additional burden of substantive hearings would be greater than any inconvenience caused by a late adjournment.

It is also submitted that the decision is flawed by a misdirection in that the Chairman, instead of applying the rule conferring a discretion in the terms of Rule 13(7), applied a test said to emanate from the President of Industrial Tribunals. It is a different test than provided in the rules. There is therefore a flawed exercise of the discretion. In exercising the discretion regard should be had to the wide nature of it, in particular the reference to "enactments providing for conciliation". All the circumstances should be taken into account, at whatever stage the application for an adjournment is made.

I see the force of the arguments, but I am not persuaded that the decision of the Chairman is either an erroneous exercise of discretion by applying the wrong test or is a conclusion that no reasonable Chairman could have reached. As I see it, the options open to the parties are these. First they could turn up at the hearing on 18 December and fight the preliminary issues set down for a decision months ago; secondly, they can turn up on Monday and present a united front to the Tribunal, saying that they all want an adjournment. This would be an application to the whole Tribunal, not just to the Chairman. They could explain the grounds advanced in correspondence and on this appeal in support of the renewed application.

The full Tribunal would not be bound to follow the decision that the Chairman had taken if, in all the circumstances, they were satisfied that it was proper to grant an adjournment. A third possibility is that they turn up on Monday and, if they are refused an adjournment on a renewed application, say that they wish to appeal and for that purpose seek an adjournment pending the decision of the appeal.

Further, they could, by agreement between themselves, all stay away from the hearing on Monday and, as a matter of courtesy, write letters to the Industrial Tribunal explaining why they had decided not to turn up. Each of them could ask (with reasons supporting the request) that the Tribunal should not make any order in the proceedings in the absence of the parties.

If that final course is to be taken, then the sooner the better. It is not for this Tribunal to advise the parties as to which, if any, of these courses they should follow. My role is simply to say whether, on an appeal, there is an error of law in the decision of the Chairman. For reasons I have attempted to explain I am not satisfied that there is an error. I hope that, in the circumstances, some sensible way will be found of dealing with this matter. But it is not for me to interfere with a decision of an Industrial Tribunal, even if, were I exercising the discretion, I would perhaps exercise it differently.

It is important that this Appeal Tribunal respects the wide limits of the discretion that Industrial Tribunals have and does not question the integrity of those decisions, except on the clearest possible grounds. There are no such grounds here. The appeal is therefore dismissed.