United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C T LOCK (Personnel Consultant) PPCL Godwin House George Street Huntingdon Cambs PE18 6BU
For the Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This is an appeal by the Respondent employer to a claim of unfair dismissal brought by the Applicant, Miss Moore, currently proceeding in the London (North) Industrial Tribunal, against an interlocutory order made by a Chairman of Industrial Tribunals on 15 May 1997, refusing the Respondent's application for a postponement of the hearing of the complaint presently fixed for 27 May 1997.

The Applicant was employed by the Respondent from 17 May 1994 until 7 January 1997.

By an Originating Application presented on 19 March 1997 she gives the following details of her complaint:

"I was originally employed as a receptionist then promoted to personal assistant to the director then was later demoted. Dismissed on charge of refusing to carry out a reasonable and lawful instruction. I have never refused to carry out instructions connected with my employment."

She did not complete box 1 of the form IT1, but it would seem from box 10 that she claims that she was unfairly dismissed. However, Mr Lock makes the point that until he knows precisely what is the nature of her complaint or complaints he cannot be certain that that will be the only matter with which his clients have to deal. On 10 April 1997 Mr Lock of PPC Ltd, representing the Respondent, made the following request for Further and Better Particulars of the Originating Application by letter to the Applicant's advisers, Legal Plus:

"1. The nature of Miss Moore's complaint. Box 1 of the Originating Application has not been completed.

2. At Section 12. Miss Moore provides details relating to her claimed dismissal. In respect of these I would request further information relating to the following:-

a. When Miss Moore was promoted to Personal Assistant.

b. When Miss Moore was demoted from the position of Personal Assistant and the circumstances surrounding the claimed demotion.

c. Is it claimed, and if so, in what way is it claimed that the stated demotion is relevant to Miss Moore's, as yet, unspecified complaint (see Question 1. above).

d. What are the circumstances which it is claimed lead to Miss Moore's dismissal, particularly as they relate to the 'reasonable and lawful instruction' referred to. Please give further details of the date(s), parties involved, and sequence of events which lead to the claimed dismissal."

No reply was received to that request and on 18 April he sent a reminder, asking for the particulars within 14 days.

On 29 April the Tribunal gave notice of hearing to the parties. It contained the standard form warning to the effect that no postponement of the hearing date will be granted save in exceptional circumstances unless made within 14 days of the notice.

On 6 May Mr Lock faxed the Industrial Tribunal seeking an order for Further and Better Particulars, pointing out that the hearing was fixed for 27 May and asking that urgent consideration be given to the application.

Having heard nothing from the Industrial Tribunal he telephoned the Regional Office on 12 May to be told by a member of staff that his fax dated 6 May could not be found. It was re-faxed to the Tribunal.

On 13 May he again telephoned the Industrial Tribunal to be told that his application for Further and Better Particulars had been granted and the Applicant had been ordered to provide those particulars on or before Thursday 22 May.

On the same day he faxed the Industrial Tribunal seeking a postponement of the hearing fixed for 27 May on the grounds that he would have only one working day in which to prepare for the hearing after receipt of the particulars. We shall refer to the application for an adjournment in further detail later in this judgment.

By letter dated 15 May the Tribunal responded in these terms:

"Your letter of 13 May 1997 has been referred to a Chairman of the Tribunals who has refused to grant your request for a postponement of the hearing, listed to take place on 27 May 1997 for the following reasons:

The notice of hearing was sent on 29 April 1997.

The hearing will therefore take place on the date already notified."

Against that refusal the Respondent now appeals.

Interlocutory Appeals

Appeals to the Employment Appeal Tribunal against an Industrial Tribunal interlocutory order are no different from appeals against substantive decisions. Our powers to interfere are limited to correcting errors of law. Medallion Holidays Ltd v Birch [1985] ICR 578.

The correct approach is that set out by Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, 782, where he said that in order to reverse an interlocutory order:

"Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That passage was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918D.

This Appeal

The Chairman's reason for refusing to grant the Respondent's request for a postponement is cryptic. There has been no request made for full reasons for the order as strictly required by Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993. As we have pointed out in previous cases, there is no obligation on a Chairman to provide full reasons for an interlocutory order, if asked for them, under the Industrial Tribunal Rules of Procedure 1993. In the circumstances we shall exercise our discretion under Rule 39(2) of the EAT Rules and consider the appeal on the basis of the Industrial Tribunal's letter dated 15 May.

Mr Lock submits that, applying the approach in Bastick v James Lane, the Chairman has simply dismissed the application for an adjournment on the basis that it was made one day after the expiry of 14 days from the date of the Notice of Hearing. In so doing the Chairman has failed to take into account the grounds for the application contained in the fax dated 13 May. Those grounds include:

(1) The history of the matter, outlined above. Mr Lock submits that he has done all that was reasonable to discover the nature of the Applicant's case, but has received no response from her advisers. He sought an order from the Tribunal on 6 May, and his fax was lost due to a failure in the Industrial Tribunal office, until he made enquiries on 12 May and discovered that his fax had gone astray.

(2) The order for Further and Better Particulars means that the Respondent will have only one working day in which to prepare its defence in the light of those particulars. This raises a specific problem; the dismissing manager, Mr Puffet has left the Respondent's employment. He cannot be interviewed before the morning of the hearing, for which he has booked a day off work with his new employers, about the Applicant's newly pleaded case. Justice requires, in all the circumstances, that the Respondent be given a proper opportunity to prepare for this hearing.

In our judgment the Chairman has fallen into error, on the face of his reason for refusing the postponement, by applying slavishly the 14 day policy without considering all the relevant factors which he is required to take into account in reaching a judicial decision in this matter. In these circumstances we shall proceed to consider the matter ourselves under our powers contained in Section 35 of the Industrial Tribunals Act 1996.

The factors in favour of granting an adjournment are those advanced by Mr Lock in his letter dated 13 May. Against that it may be said:

(a) That the Respondent delayed in seeking an order for the particulars sought. Instead of writing a reminder to the Applicant's representative on 18 April a sensible course would have been to apply for a 7 day order at that stage. Further, the Notice of Hearing made clear that applications for postponement ought to be made within 14 days. Instead of applying for an order for particulars on receipt of the Notice dated 29 April, the Respondent waited until 6 May.

(b) This does not appear to be a difficult case. We have now seen the Notice of Appearance which alleges that the reason for dismissal was the Applicant's refusal to fill water jugs. It is therefore arguable that the Respondent would be in a position to fully prepare its defence once the Further and Better Particulars have been supplied.

(c) There is a public interest in the Industrial Tribunals being able to order the hearing of matters which it has to deal with and any adjournment does, of course, cause administrative inconvenience.

Weighing up the factors which we have identified both for and against granting a postponement, we have reached the conclusion, in the exercise of our discretion, that the interests of justice in this particular case, require that the date presently fixed for the hearing be vacated. A new date will be fixed through the usual channels.

This appeal is allowed.