United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T WEISSELBERG (of Counsel) Messrs David Downton & Co Solicitors Harefield Chambers Furtho House 20 Towcester Road Old Statford Milton Keynes MK19 6AQ
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This is an interlocutory appeal against an order made by an unidentified Chairman of Industrial Tribunals sitting at Sheffield contained in a letter dated 27th April 1998, and confirmed by that same Chairman by letter dated 1st May, refusing an application by the appellant before us and respondent below, Daewoo Cars Ltd, for a postponement of the substantive hearing of what we take to be a complaint of unfair dismissal (described in the form IT1 as "Constructive dismissal through redundancy") made by its former employee, the applicant below, Mr Bunclark. In this judgment it will be convenient to refer to him as the applicant and Daewoo as the respondent.

We begin with the chronology of events leading up to this appeal. The applicant was employed by the respondent from 8th March 1995 until his dismissal with effect from 6th February 1998. On 25th February 1998 he presented his Originating Application to the Industrial Tribunal. The claim is resisted.

On 17th March 1998 the Industrial Tribunal sent out a Notice of Hearing to the parties listing the case for 5th May 1998. On 31st March 1998 the respondent's solicitor faxed the Industrial Tribunal requesting an adjournment because the respondent's Human Resources Director, Mr Ellis, described as their main witness, was out of the country on 5th May 1998. The solicitor asked for the case to be relisted avoiding 4th-16th May and two weeks commencing on 8th June 1998. We pause to observe that one date not to be avoided was 5th June 1998.

On 8th April 1998 a Chairman refused that application, indicating that the respondent wished to renew the application they should say why Mr Ellis' evidence was essential to their case.

On 14th April 1998 the respondent's solicitor faxed the tribunal explaining why they needed to call Mr Ellis and renewing the application. Again, we note that at this stage no alteration was made to the list of alternative of dates, nor was any mention made of other witnesses whom the respondent may wish to call.

That fax was followed up by a reminder dated 21st April 1998 in which again no alteration was made to the list of available dates.

On 22nd April 1998 the tribunal agreed to the postponement and at the same time relisted the case for 5th June.

On 24th April 1998 the respondent's solicitors faxed the tribunal again. The new date was inconvenient. The respondent's solicitor, a sole practitioner, had a new commitment on 5th June 1998; Mr Ellis had arranged his family holiday abroad covering that date and two further witnesses, Messrs Hayes and Wright were now to be called. A revised list of dates to avoid was submitted for the months of May and June 1998.

The papers before us do not indicate whether the applicant's views as to this further adjournment were sought. We are told by Mr Weisselberg that the applicant opposed the first application for an adjournment and we assume, judging by the written submissions made by the applicant to us in this appeal, that if he was asked he would have opposed this fresh application.

At all events, the further application was refused by a Chairman on 27th April 1998. On 29th April 1998 the respondent's solicitor faxed the tribunal asking for written reasons for the refusal, and on the same day made application to the Regional Chairman to reconsider the matter, setting out the history and current position so far as the respondent was concerned.

In the absence of the Regional Chairman that latter request was referred to the same Chairman who had refused the application on 27th April 1998. By letter of 29th April 1998 that Chairman refused to give written reasons for his refusal to order a postponement, on the basis that it was not the practice to do so, and on 1st May 1998 he repeated his refusal to order that the date of 5th June 1998 be vacated saying that there was no good reason for a further adjournment. On 7th May 1998 the respondent entered a Notice of Appeal against the Chairman's order of 27th April 1998.

The Appeal

Mr Weisselberg accepts that Industrial Tribunals have a wide discretion to grant or refuse a postponement under Rule 13(7) of the Industrial Tribunal Rules of Procedure 1993. However, that discretion must be exercised judicially. Our powers to interfere with such an order are limited to correcting errors of law. That will usually only arise in cases such as this where the order is perverse in the sense that the Chairman has taken into account an irrelevant factor or failed to take into account a relevant factor or otherwise reached a conclusion which no reasonable Chairman, properly directing himself, could reach. See Bastick v James Lane [1979] ICR 778 at 782B-C (per Arnold J); approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908, 918F (per Stephenson LJ).

We deal first with the point that the Chairman refused to give full written reasons for his refusal. As we have pointed out in earlier cases, whereas Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993 requires an appellant to serve with the Notice of Appeal a copy of the extended written reasons for the decision or order of the Industrial Tribunal appealed against, the Industrial Tribunal rules provide, by Rule 10, that the tribunal is required to give written reasons only for its decisions, and the definition of "decision" in Regulation 2(2) of the 1993 Regulations does not include an interlocutory order of the type under consideration in this case. In practice, we do hear such appeals, which a party is entitled to bring under s. 21(1) of the Industrial Tribunals Act 1996, by dispensing with the requirement for extended reasons under the power granted by rule 39(2) of the EAT Rules. Nevertheless, the position is unsatisfactory, in that in the absence of express written reasons we may be driven to infer that the order made by the Industrial Tribunal is irrational.

Mr Weisselberg points to the Chairman's letter of 1st May 1998, in which he opines that there is no good reason to adjourn the hearing fixed for 5th June 1998 and submits that there are in fact good reasons for allowing the adjournment, namely:

(1) the unavailability of Mr Ellis, whom it appears the Industrial Tribunal accepted was a necessary witness for the respondent because the initial refusal to adjourn the hearing fixed for 5th May 1998 was subsequently reversed.

(2) The case is now estimated to be likely to take two rather than one day. In these circumstances, it would be satisfactory all round if the case was listed for two successive days rather than one day followed by a further day some way distant.

In these circumstances, Mr Weisselberg submits:

(1) that the tribunal Chairman was wrong to say that there was no good reason for adjourning the date of 5th June 1998; or

(2) that looking at the result reached, which is that the 5th June hearing date is to go ahead, the tribunal Chairman must have erred to an extent where we can and should conclude that he has reached a perverse conclusion.

It seems to us that the Chairman was required to balance the interests of the parties and indeed the general public interest in ensuring the efficient disposal of the Industrial Tribunal business in reaching a conclusion on this application. On the respondent's side one adjournment had already been granted; new dates were given by the respondent, including 5th June 1998, which were said to be convenient and that position was not revised up to and including the respondent's solicitor's fax dated 21st April 1998. When the new date was fixed by the tribunal it appears that the respondent's position had changed again. There must be a point at which it is open to an Industrial Tribunal Chairman to say that enough is enough. The applicant points out, in his written submission to this tribunal, that he and his witnesses have already re-arranged holidays; he wants to get on with his case, and the tribunal Chairman, we infer, took into account the interests of the applicant as well as those of the respondent.

In these circumstances we have reached the conclusion that we cannot characterise this order as perverse. In our view no error of law is made out, and it follows that we must dismiss this appeal.