United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS M WHITEHOUSE (Representative) AEI Rediffusion Music Ltd Cray Avenue Orpington Kent BR5 3QP
For the Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: This case is currently proceeding in the Leeds Industrial Tribunal.

Background

The Applicant was employed by the Respondent, AEI Rediffusion Music Ltd from 14 September 1992 until his dismissal effective on 31 December 1996. He was finally employed in the capacity of sales manager.

By an Originating Application presented on 26 March 1997 the Applicant claimed compensation for unfair dismissal. He disputes the reason advanced by the Respondent for his dismissal, namely redundancy. By a Notice of Appearance dated 24 April 1997 the Respondent resisted the claim, contending that he was dismissed by reason of redundancy, and that the dismissal was fair.

By a Notice dated 28 April 1997 the Leeds Industrial Tribunal informed the parties that the complaint would be heard on 19 June 1997. Following receipt of that Notice the Respondent's Human Resources Manager, Ms Whitehouse, faxed the Tribunal on 2 May 1997, asking that the case be transferred to the London (South) region at Croydon, on the basis that the Company is based at Orpington, and thus Croydon would be a more convenient venue.

That application was opposed by the Applicant's representative by letter dated 13 May 1997. On 16 May a Chairman at Leeds refused the Respondent's application to transfer. Thus far, no indication had been given by the Respondent of witness difficulties on 19 June.

On 29 May Ms Whitehouse again requested a postponement. This time because a potential witness, Mrs Kendrick, would be on leave during the week 16 - 23 June. Again that application was opposed by the Applicant's representative for the reasons set out in a fax dated 30 May 1997.

By letter dated 4 June 1997 the Tribunal informed the parties that the Respondent's application for a postponement had been refused by a Chairman who had considered the written representations of both sides.

On 6 June the Respondent lodged a Notice of Appeal to this Tribunal against the Order of 4 June. On the same day Ms Whitehouse faxed the Leeds Tribunal, asking for a postponement of the Industrial Tribunal hearing, pending determination of this appeal.

The Tribunal responded on 9 June in these terms:

"Your faxed letter dated 6 June 1997 has been referred to a Tribunal Chairman who has refused your postponement request on the following grounds:-

a) To grant the application would defeat the object of the original refusal in the event of the EAT rejecting the appeal and would thereby lead to an injutsice to the applicant.

b) The EAT will doubtless be able to deal with the appeal expeditiously in the circumstances.

c) In any event as the Tribunal is able to regulate its own procedure it would be possible to hear all the available witnesses for both parties on the 19 June 1997 and then for the respondent to ask for an adjournment if it is still felt, at that stage, that the unavailable witness is still essential. The parties and the Tribunal will then be in a much better position to make an informed decision on the relevance or otherwise of the witness to the proceedings.

It is the Tribunal's experience, over many years that this is often the most effective and just way to deal with such matters.

d) Clearly the Regional Chairman has weighed his discretion judicially after carefully considering the written representations of both parties and accordingly this is a case where the likelihood of success in the EAT is slight, particularly in view of the matters referred to in c) above.

The case remains as listed for Thursday 19 June 1997 at the above address (3rd floor)."

This afternoon the appeal has been listed before us and we have heard oral submissions from Ms Whitehouse. The Respondent does not appear and is not represented., although we have taken into account his Answer.

Interlocutory Appeals

It is now well-settled that appeals against Interlocutory rulings of Industrial Tribunals are subject to the same guiding principle as appeals against substantive Tribunal decisions. Our powers to interfere are limited to correcting errors of law. Medallion Holidays Ltd v Birch [1985] ICR 578.

The Industrial Tribunals' power to grant or refuse a postponement is specifically provided for in Rule 13(7) of the Industrial Tribunal Rules of Procedure 1993. The grounds upon which this Appeal Tribunal may interfere with a Chairman's exercise of discretion, and reverse his order are helpfully set out in the following words of Arnold J in Bastick v Lane [1979] ICR 778, 782:

"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 far 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 [1979] ICR 908, 918 F.

The Appeal

Ms Whitehouse told us today that at the time that the original Notice of Hearing was sent out she was unaware of any difficulty so far as Mrs Kendrick's attendance as a witness on 19 June was concerned. She then applied for the matter to be transferred to Croydon and, as we have indicated, that application was refused.

It was not until 29 May, the day on which the second application for a postponement was made, that Ms Whitehouse learned that although Mrs Kendrick had earlier been notified of the date of hearing in Leeds she, Mrs Kendrick, had opted to take leave of absence for the week of 16 to 23 June. She is still an employee of the Respondent and apparently that request for leave at that particular time was accepted.

It now turns out that Mrs Kendrick is not leaving the country during this week and, indeed, has indicated to Ms Whitehouse that she is prepared to make herself available in Leeds on 19 June. In those circumstances, as a matter of sheer practicality, the basis upon which the application for postponement was originally made to the Leeds Industrial Tribunal has gone. But reverting to the principles to which we referred, we are quite unable to discern in the Chairman's approach to this application, any error of law. In particular, the Chairman balanced the interests of the respective parties, as well as the need for Industrial Tribunals to proceed with their business as quickly as practicable. Justice delayed is justice denied.

On the face of the correspondence it was not clear to the Chairman that Mrs Kendrick's evidence was critical; but if it was, it would be open to the Respondent to apply for an adjournment after other evidence is called on 19 June if this was considered necessary. In the event, as we have observed, that will not be necessary because Mrs Kendrick will be there to give her evidence.

In these circumstances there are no grounds for interfering with this Chairman's exercise of his discretion and accordingly, this appeal must be dismissed.