United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R BRONKHURST Interchange Legal Advisory Service InterChange Studios Dalby Street London NW5 3NQ
For the Respondent	NO APPEARANCE BY OR REPRESENTATION FOR THE RESPONDENT


 


JUDGE CLARK: This is an appeal by the Respondent employer before the London (North) Industrial Tribunal, the Management Committee and Members of the Iranian Association, against an order of a Chairman of that Tribunal contained in a letter dated 15 October 1997, refusing an application to postpone the substantive hearing of this complaint of unfair dismissal, listed for 6 and 7 November 1997.

The background is as follows: the Respondent is a charitable refugee organisation funded by the London Borough Grants Committee. The Applicant, Mr Adibi was employed by the Respondent as a co-ordinator from 20 October 1987 until 18 October 1996, when he was dismissed, allegedly on the grounds of incapability and misconduct. Following that dismissal he presented an Originating Application to the Industrial Tribunal on 30 December 1996.

We are told by Mr Bronkhurst, who appears on behalf of the Respondent, that a hearing was originally fixed for 29 July 1996, but that date was adjourned at the request of the Applicant. The parties were then asked to indicate dates on which they were unavailable. Mr Bronkhurst gave his dates, which did not then include 6 November 1997.

On 2 October the Tribunal sent out Notice of Hearing to the parties fixing the dates for the substantive hearing on 6 and 7 November. Shortly before receipt of that Notice Mr Bronkhurst had received an appointment with a consultant surgeon (in connection with surgery which he may have to undergo) for 6 November. He therefore promptly faxed the Industrial Tribunal on 3 October in these terms:

"I am unable to manage the 6th and 7th November, I have a hospital appointment on the 6th November, and I have an all day teaching session on November 7th. The way Interchange [that is the organisation for which Mr Bronkhurst works] works for very small charities, of which this is one, is that we act pro bono. I am the only advisor at InterChange Legal Advisory Service dealing with employment law. This very small charity has no funds and no chance of obtaining funds to enable it to pay for representation. Most of its management committee do not speak English. If I am not available to help them, they have no chance of being in a position to instruct someone else. Please will you accordingly vacate the 6th and 7th November dates, and rearrange the date with reference to me."

That application was refused by the Tribunal's letter of 15 October for these reasons:

"(1) The hearing was fixed to avoid your [Mr Bronkhurst] unavailable dates.

(2) It is not normally the practice of these Tribunals to postpone hearings because a particular representative is unable to attend. The Chairman expects the representative to ensure that alternative representation is arranged.

(3) Moreover your opponent has objected to the postponement requested."

It appears from the letter faxed to the Industrial Tribunal by Mr Jaggers, the Trade Union official representing the Applicant, on 16 October that he was contacted by telephone by the Tribunal staff on Friday 10 October regarding the request by the Respondent for a postponement. He says in that letter that he responded by telephoning the Tribunal offices on Monday 13 October. He did not have a copy of the Respondent's application and so was not in a position to support or approve the request. What he said in this letter was:

"..... I merely stated that the applicant was in a position to proceed on the 6/7 November 1997.

Having now received a copy of the request, attached, from the respondents' representative, by fax on Wednesday, 15 October, I am very sympathetic to the request and would urge the Chairman to reassess the circumstances, as we believe the absence of the respondents' representative would not assist either party."

Mr Bronkhurst, on behalf of the Respondent, now appeals against the Tribunal Chairman's Order.

Industrial Tribunals have a wide discretion under Rule 13(7) of the Rules of Procedure in deciding whether or not to grant a postponement of a hearing. We have no jurisdiction to interfere with the exercise of that discretion, unless it can be said that the Industrial Tribunal failed to take into account a relevant factor; or took into account an improper factor, or otherwise reached a perverse decision. (See the judgment of Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 at page 782 B-C.)

In these circumstances we reject Mr Bronkhurst's first submission which is that, as a general rule an adjournment must be granted if a refusal would either defeat the rights of one of the parties or if a refusal to grant it would cause an injustice to one of the parties. It is argued that both of these apply in this situation.

In our judgement there are no mandatory circumstances in which an adjournment must be granted. It is essentially a matter for the Tribunal's discretion. However, he further submits that the Chairman incorrectly took into account that the Applicant's representative objected to the application for a postponement. Looking at Mr Jaggers' letter of 16 October, which has not been contradicted, he appears to have taken a neutral position. That is materially different from the basis on which the Chairman approached the exercise of his discretion in dealing with this application. If Mr Jaggers had indeed objected and wanted to get on with the case, that would be a material factor in favour of refusing the adjournment. As it turns out, had he been told of the basis of the Respondent's application he would have supported the application, not opposed it, as he does now. This appeal is not resisted.

We think that the Chairman has, possibly inadvertently, fallen into error in taking into account an improper factor in the exercise of his discretion, that is the misconception that the Applicants' representative objected to the application for a postponement.

Having identified an error of law, we must then decide what course to take. In our judgement the proper course is for us to exercise the powers of the Industrial Tribunal afforded to us by Section 35(1) of the Industrial Tribunals Act 1996. Exercising our discretion on the basis of the material now before us, we shall direct that the hearing date fixed for 6 and 7 November be vacated and the case re-listed after the parties have again provided dates on which they are unavailable to the Regional Office, for the following reasons:

(1) The Respondent's representative has a medical appointment on 6 November. He is the only member of his organisation experienced in employment law; the Respondent is a charity without funds available for professional representation.

(2) The Applicants' representative supports the postponement on the basis that it will not assist the fair disposal of this case for the Respondent to be unrepresented.

(3) Accordingly the interests of justice and of both parties, which in this case outweigh the administrative inconvenience to the Industrial Tribunal of having to vacate these dates, require that the case be adjourned.

In these circumstances we shall allow this appeal.