United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M G KHAN (Director)
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: In this case, which is proceeding in the Reading Employment Tribunal, the Applicant, Mr Elroy Baptiste, brings a complaint of unfair dismissal and breach of contract against his former employer, Mohammad Gulistan Khan & Co Ltd (the Company), by whom he was employed between February 1995 and 23 June 1999.

From the Originating Application presented on 9 July 1998 and the Notice of Appearance drafted by Mr Khan and dated 22 July 1999, it appears that the fact of and circumstances leading to the alleged dismissal are in issue. It seems to be common ground that the Applicant's hours of work as Foreman Mechanic and Warehouse Manager were reduced from 40 to 20 hours per week. Reading the grounds for resistance it appears that the evidence on the Respondent's side will come from Mr Khan, the principal of the Company, and possibly his fellow Director and the Company Secretary, Mr Ali.

At the end of the Notice of Appearance, the following appears:

"Please note the following periods will not be convenient because the undersigned will either be out of the Country or has other Court appearances relating to Company's bad debts and there is no other employee who can perform these duties.

From 2.8.99 to 21.8.99

From 20.9.99 to 10.11.99"

On 11 August the Employment Tribunal gave notice of a hearing in this case to take place on 1 October to both parties. At that time Mr Khan was out of the country.

On 31 August upon his return to the United Kingdom Mr Khan wrote to the Employment Tribunal. He said that the Tribunal's Notice of Hearing had not been replied to earlier because he had been out of the country and had only returned to the office that day.

He there pointed out the inconvenient dates listed in the Notice of Appearance, including the period 20 September to 10 November 1999. He asked that the hearing be postponed until after 12 November.

By a letter dated 3 September the Tribunal replied, after the postponement request had been referred to a Chairman, as follows:

"A Chairman refuses to grant your request for a postponement of the hearing on Friday 1 October 1999, on the basis that it is not acceptable for a party to submit so many unavailable dates. A Tribunal hearing must have priority over any other business arrangement.

The hearing stands as arranged."

Against that refusal to order a postponement the Company now appeals.

We remind ourselves that our powers to interfere with an interlocutory order of the Employment Tribunal are limited to correcting errors of law. That means, in practice, that it will be for the Appellant to show that the order was made in circumstances where the Chairman failed to take into account relevant factors or took into account irrelevant factors, or otherwise reached a conclusion which was legally perverse in the sense that no reasonable Chairman properly directing himself could reach that conclusion: see Carter v Credit Change Ltd [1979] ICR 908, 918.

The Applicant does not appear before us today, but we have taken into account his Answer, in which he resists the appeal. He wants to get on with his case.

Before us Mr Khan has provided a little more information. He tells us that whilst he was in Pakistan his mother died on 17 August and that a ceremony in her honour will be held on 25 September. He has also shown us an airline ticket providing for him to fly from London, Heathrow, to Islamabad on 18/19 September and he will then remain in Pakistan, flying to Lahore for one day on 7 October until his return on 12 October.

Returning to the principles laid down in Carter v Credit Change, it seems to us that the Chairman fell into error in two ways. No account having been taken in the initial listing arrangement of the unavailable dates put forward in the Notice of Appearance, it seems to us that he took into account an irrelevant factor, that is simply the number of unavailable dates put forward by the Respondent. What he failed to take into account, being the relevant factor, were the reasons for unavailability put forward by the Respondent.

In these circumstances we are satisfied that this order cannot stand and we shall set it aside. The hearing fixed for 1 October will be vacated. Having considered the basis on which the application for a postponement is made by Mr Khan, exercising the powers of the Employment Tribunal, we shall further direct that this case be listed for one day, not before 12 November 1999.

We should add this. We appreciate, of course, the importance of Tribunals getting on with their business in the interests of justice generally. We have allowed this appeal but in circumstances where we think it highly unlikely that any further application for an adjournment of this case will be favourably entertained.

In these circumstances the appeal is allowed.