United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION ON OR BEHALF THE APPELLANT
For the Respondents	NO APPEARANCE OR REPRESENTATION ON OR BEHALF THE RESPONDENT


 


JUDGE WILKIE:

1. This is an interlocutory Appeal brought by Atlas Equipment (London) Ltd against a decision of an interlocutory Employment Tribunal Chairman, dated 12 November refusing a postponement of the hearing, due to take place on the 17 November, of Mr Wards application's for a finding of wrongful and unfair dismissal.
2. The history of the matter, as far as hearings are concerned, is that the case was initially set down for hearing on the 29 September. That hearing was postponed on application from the Applicant's solicitors. A new Notice of Hearing was sent by the Employment Tribunal to the parties on the 4 October, setting the matter down for hearing on the 4 November. In that Notice of Hearing, which was in standard form, it was indicated that any application for a postponement, should be accompanied by an indication of dates to avoid, for the six weeks following the hearing date then to be on the 4 November.
3. On the 19 October the Appellant's Solicitors received notification from their principle witness, Mr Benyon who no longer works for them, but at the time was the applicant's line manager, that he could not attend the hearing on the 4 November. The final paragraph of that letter indicated that Mr Benyon would need four weeks notice of any new hearing, in order to ensure that his affairs could be arranged for him to attend.
4. The Employment Tribunal on receipt of the documentation, including that letter, decided to postpone the hearing of the 4 November and on the 22 October, wrote to the parties confirming that postponement, and relisting the case for the 17 November, that being a date within 4 weeks from the 22 October.
5. It is that new hearing date that the Appellant's sought to have postponed, on the footing that Mr Benyon informed them that he was out of the country during that week commencing the 14 November, and indeed that was the reason why he had indicated that he needed four weeks notice of any hearing.
6. The application to postpone was made by fax, dated 25 October that being the first date when the Appellant's Solicitors were made aware by Mr Benyon of his inability to attend on the 17 November. The Chairman refused that application by a letter on the 29 October, interalia, on the following ground. "That a postponement was granted on the 22 October, and before relisting the Tribunal received no indication from you, that the date now fixed would cause you problems".
7. Whilst that is factually strictly accurate, it ignores the fact that the Appellant's Solicitors had forwarded the letter from their witness, requesting four weeks notice of any new hearing. The application was renewed by fax dated 2 November when this matter was drawn to the Chairman's attention. He refused to reconsider his decision on the grounds that no new reasons had been put forward so the decision stands.
8. The matter was then ventilated again by lengthy letter dated 8 November from the Appellants Solicitors, and he confirmed his refusal of the request for a postponement on the 12 November for the reasons, firstly, that the notice of hearing sent on the 4 October alerted the parties to the need to give unavailable dates for the next six weeks with any postponement request, and that a request made within 14 days is not automatically granted. That we assume being within 14 days of the notification of the date, rather than within 14 days of the hearing.
9. Thirdly that the postponement granted on the 24 September was granted following applications and correspondence from both sides for different reasons, and it was for that reasons that the Applicant's request for a postponement was granted.
10. It seems to us that the Chairman unfortunately has simply misdirected himself in this case. It is right to say that the formal documentation does indicate the need for Applicants for a postponement to notify the Tribunal of non available dates for a period of six weeks from the date of the proposed postponed hearing. It seem to us that what the Appellants did falls within the spirit, if not the letter precisely, of that requirement in that they did indicate to the Employment Tribunal that their main witness required four weeks notice of any hearing date.
11. The Chairman in dealing with their request for a postponement, in the light of that knowledge, simply appears to have ignored that request, and slotted in a date which was within four weeks and therefore during the period that he must have been aware that the date was at risk as far as the main witness for appellant is concerned.
12. We are satisfied from perusing the IT1 and the IT3 in this matter, that the witness is indeed the crucial witness for the Appellant and that without him effectively they could not defend the claim. In the light of all of that it is our reluctant view, that the Chairman simply misdirected himself as to the proper approach by ignoring a relevant matter, namely the fact that he had been told that four weeks notice was requested by this particular witness, and therefore we feel constrained to allow this appeal.
13. However, the matter has now been postponed by way of its hearing on three separate occasions. The position of this witness is now known, namely, that any date beyond four weeks is likely to be one which is available for him to attend, and therefore we would be very surprised any Tribunal to look sympathetically upon any further application on behalf of the appellant to postpone on the grounds of this witness's non availability, if the hearing date is one which is notified more than four weeks in advance.
14. We also have had regard to the fact that the Applicant has indicated in his written opposition to this appeal that his availability is that he cannot attend during December and January and therefore February is the earliest date that he could attend a Tribunal hearing and further, that he has a witness whose availability has to be accommodated.
15. It is always a balancing matter between delay, and the justice to the individual parties in this case. In our judgement the balance is on this occasion in favour of granting the postponement and the Chairman misdirected himself in refusing it, even taking into account the position of the Applicant. It does seem therefore that a date in February is likely to be the date fixed by the Employment Tribunal. If it is that far in advance we can see no sensible reasons why there should be any further successful applications for a postponement by either side on the grounds of witness non-availability.