United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W HEMSEN (Of Counsel) Messrs Swepstone Walsh Solicitors 9 Lincoln's Inn Fields London WC2A 3BP
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman dated 17 June 1997, refusing the Respondent's application for an adjournment.

The Applicant, Mr Beck, had sold his business to the Respondents and entered into an agreement with them. Mr Beck presented a complaint to an Industrial Tribunal on 4 December 1996, complaining of breaches of the agreement. He claims that monies are due and owing to him and he also makes a complaint relating to his dismissal. The terms of the complaint include a paragraph saying the Applicant is 72 years old and placed great importance upon his security.

The principal of the Respondent company, Mr Whateley-Harris, has cancer of the throat and the first hearing date chosen by the Industrial Tribunal was postponed, as we understand it, for a period of three months because of a medical report indicating that he was undergoing radiotherapy at that stage. A new hearing date has been fixed for 24 June. There is a medical report relied upon by the Appellants dated 6 June 1997 which says this:

"Mr Whateley-Harris is currently taking high doses of Morphine to control his pain, he is unable to eat and swallow properly and is not in any physical or mental condition able to attend a court proceeding of the nature and duration of which you specify. We continue to review him monthly but it is my opinion that it is unlikely that he will be fit to appear in court for at least this year. Further progress will have to be assessed and further report may be available as his condition changes."

It will be noted that the doctor gives no prognosis and holds out no sensible prospect that Mr Whateley-Harris is going to be fit in the reasonably foreseeable future to give oral evidence in court. There is thus a problem for the administration of justice because the principal witness for the Respondents is too ill to give oral evidence. The Applicant is in the latter phase of his life and to him it is important that this case is heard and determined. There are likely to be issues of fact relating to the status of Mr Beck under the agreement to which we have referred, as to whether that gave rise to employment rights and jurisdiction in the Tribunal or not. We can quite well understand that there will be issues of fact which will call for resolution.

It seems to us that the decision of the Industrial Tribunal not to grant this further adjournment was one which they reasonably could take in the exercise of their discretion. It seems to us likely, that either Mr Whateley-Harris's evidence will have to be presented in written form with the Tribunal taking into account the reason why it is being presented in writing and/or supported by evidence from some other source.

It seems to us that the Tribunal will be faced with doing justice between the parties as best they can in the circumstances, unfortunate as they are, with which they are presented. We are not prepared to accede to an appeal against the decision of the Industrial Tribunal Chairman refusing the adjournment. We think that it was fully justified and we think that the case should proceed, as best as it may, on the date fixed for it.