United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J WAITHE (OF COUNSEL) (Instructed by) Tramboo Partnership Solicitors 168a High Street Hounslow Middlesex TW3 1BQ
For the Respondents	MR E COPPINGER (REPRESENTATIVE FROM) Hounslow Law Centre Ltd 51 Lampton Road Hounslow Middlesex TW3 1JG


 


JUDGE J ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (South) on 13^th August 1998. On the morning of the Hearing the Employment Tribunal heard an application from Mr Williams on behalf of the Appellants who were the Respondents before the Employment Tribunal for an adjournment.

1. The decision dealing with this matter was recorded as follows:

"The Respondents' represented by Mr Williams applied for an adjournment of the proceedings which was refused by the Tribunal."

2. That sentence did not form, physically, part of the decision of the Employment Tribunal but was embodied in the part headed "Extended Reasons". No other reference was made to the application for an adjournment made on the morning of the Hearing. The Appellant's appeal on three grounds, but at the preliminary hearing in this Tribunal they were permitted to proceed on ground 1 which stated:

"They (referring to the Employment Tribunal) failed to allow the Appellants' requests in writing and their Counsel to grant an adjournment"

3. Technically speaking, the Appeal from the refusal to adjourn the case before the hearing is out of time and the only matter that is in time is the refusal on the morning of the hearing, but that is largely technical, because the reasons given interlocutorily before the hearing are all part of the background to this case.
4. The history very briefly is as follows. There were two Applicants before the Employment Tribunal, Naseem Yousef, whose employment ended on 19^th March 1998 and who made application to the Employment Tribunal on 2^nd June 1998 (interestingly, only 17 days before the expiry of the 3 month time limit) and Ambreen Mahmood, whose employment ended on 29^th April 1998 who made her application to the Employment Tribunal on the same date, 2^nd June some two months after the ending of her employment.
5. The Appellants entered their Notice of Appearance in time, 22^nd June, without seeking any adjournment at that stage or postponement of the entry of the Notice of Appearance. The claims essentially were under the Wages Act for unpaid wages and in respect of Mrs Yousef a claim for unfair dismissal. The responses in some detail of the Appellants showed, on the face of it, substantial issues to be heard but questions arose clearly from those documents as to the extent to which deductions could lawfully be made from pay, even in respect of sums removed by way of misconduct, the extent to which one employee had acted badly, the extent to which either of them were entitled to pay under the Wages Act in view of their status allegedly as undertaking work experience. We have not sought to analyse the issues any further.
6. On 25^th June a Notice of Hearing was sent out for a hearing on 13^th August. It bore the following inscription.

"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the 6 weeks following the above hearing date."

7. That wording reproduced the wording of what is called "Industrial Tribunal's Practice Direction No 1," which is also described as guidance on judicial procedure for the Industrial Tribunals in England and Wales (November 1994). However, the notes to the Direction point out that this is not a practice direction directed to the parties as to their obligations in litigation but is to assist practitioners in knowing the normal practice of Tribunals.
8. That practice direction deals also with late postponements which we quote at this stage.

"Late postponements of a hearing is rarely granted. We will normally only postpone the hearing if something serious happens to prevent the attendance of someone whose absence would put either side at a serious or unfair disadvantage. Non-availability of a particular Counsel, solicitor or paid representative is not normally sufficient reason for postponing a hearing. Postponement requests must be in writing and include full reasons."

9. It is alleged on behalf of the Appellant that on about 29^th June a phone call was made from their offices to the Employment Tribunal requesting a postponement but that no-one came back to them. Had the member of staff to whom anyone making a phone call spoken been adopting general practice, then the message would have gone back that such application must be put in writing. But all we can say at the moment is that it was in a later letter that the existence of such a phone call was first referred to. Before that, however, on 23^rd July, just under a month after the Notice of Hearing was received by the Appellants, Mr Tramboo, one of the main people in the partnership, wrote a letter. This partnership is said to be a firm of lawyers, not solicitors, practising in various areas on behalf of individuals. It was a request for a postponement, on the ground that Mr Tramboo, who it was asserted was directly involved in both matters and was a senior partner of the firm, had to be in Geneva attending a United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities in the capacity as a director of the International Human Rights Association of American Minorities. It appears that that appointment had been made as long before as January.
10. On 27^th July, the Employment Tribunal responded as follows, so far as it relates to this application for an adjournment. It is from a clerk, acting on behalf of the Regional Secretary of the Tribunals.

"I have referred the request for a pre-hearing review to a Chairman of the Tribunals who has asked me to reply … The request for a postponement is refused. The request has been received more than 14 days after the date of the Notice of Hearing and the request does not reveal wholly exceptional circumstances."

11. It appears on the face of that letter that this request has been treated by being tested against what is stated in the notice of hearing and, upon its not fitting, being rejected. It is not apparent what other reasons the Chairman, whoever it was who refused that application, had for so acting, nor does it on the face of the document disclose that the individual circumstances, the "pros and cons", had been weighed in any broader exercise of discretion than to see if it fitted what is said on the notice of hearing.
12. In receipt of that letter, 3 days later, and only a couple of days or less before he was due to depart for Switzerland, Mr Tramboo wrote again on 30^th August, reiterating his request, suggesting that there were wholly exceptional circumstances and adding a post script referring to the fact that another crucial witness, as he is described, was at Geneva at the same time, but that Mr Tramboo had only just discovered this. There was no reply in writing to that, although there was a request for a fax reply by return. If we may say so this was a rather inappropriate request, bearing in mind the delays on the part of the Appellants that had preceded these requests for adjournment. Nonetheless, the reply, we are told, was given orally by telephone on 4^th August. It must be implicit in that, it seems to us, that no reasons were given for that decision if it was done orally. Certainly, there is no letter on the file that that request was dealt with in that way, even though the letter of 30^th July raised a new matter, namely the difficulties with another witness.
13. On 13^th August, the hearing took place and Mr Williams was instructed by the Appellant to apply for an adjournment. We have seen the notes of evidence on this hearing, which have been most helpfully transcribed for the Tribunal by the Learned Chairman. Mr Williams appears to have been noted as having reiterated the history of the matter and Miss Nag for the Respondents replied pointing out the lack of communication between the parties on this issue, the delay after the 14 days had expired, the fact that there had been two previous refusals and suggesting that this was deliberately trying to avoid coming to Court. On that basis, having heard their submissions, the application was refused by the Tribunal.
14. The Rules of Procedure of Employment Tribunals provide that the Tribunal may grant or refuse a postponement of the hearing. On the face of it, this gives a very broad discretion to consider the merits in an individual case. We have been referred to a number of authorities on this matter, some of which are well-known, others unreported. In the case of Jacobs -v- Norsalter Ltd [1977] Industrial Cases Reports at P.189, Mr Justice Phillips said in relation to a case where there was an application to postpone because of proceedings in another jurisdiction,

"The power given must not be used arbitrarily or capriciously and must certainly not be used in order to defeat the general object of the legislation. Subject to that, it seems to us that the Industrial Tribunal has a complete discretion, so long as it exercises it judiciously, to postpone or to adjourn any case provided there is good, reasonable ground for so doing. Accordingly, we reject the first submission."

15. That is the well-known general statement of principle, a very broad and wide discretion that is not restricted in any way and must not be used in a way that could be described as arbitrary.
16. We were then referred to a decision of the Court of Appeal in Carter -v- Credit Change Ltd [1979] ICR P.913. . In that case the Employment Appeal Tribunal had sought to give a guideline for when to grant a postponement where there are concurrent proceedings in the High Court, and Lord Justice Stevenson said:

"The Appeal Tribunal seems to me in this case to have stepped out of line in seeking to lay down a general principle that an Industrial Tribunal must hear an application to it before High Court proceedings unless there are special reasons or unusual circumstances."

17. Later on, he said:

"I would deplore any attempt to take from the Chairmen of Industrial Tribunals the discretion which the rule gives them to decide what is best to do in each individual case ...

I would lay down no principle except the principle (if it can be called a principle) that the Industrial Tribunal Chairman should attempt to do justice as best as he or she can do in each individual case."

18. Mr Waite, on behalf of the Appellant, points out, therefore, that in that case a restriction on the general discretion to be exercised in the individual case was postulated by the Employment Appeal Tribunal. Such general restriction was disapproved of because, in effect, it operates as a fetter upon the exercise of discretion in the individual case.
19. We were then referred to the case of Green & Ors which is an unreported decision of this Tribunal, EAT/351/92, before Mr Justice Wood and lay members and a quotation was there incorporated from the case reported in the Giblet -v- Manpower Services Commission AC [1981] P.249 in which it was suggested that it was a fundamental principle of the administration of justice in the Industrial Tribunals as in other fields that you should hear both sides and that considerations of administrative convenience must not be allowed to infringe the fundamental principle.
20. We recognise that there are enormous pressures of time upon listing in Employment Tribunals, that it is a matter of justice that cases should be dealt with expeditiously and speedily. It is a matter of justice that there should not be late notifications of requests for adjournment because the consequence of late notices is to create voids in the lists of Employment Tribunals which is an injustice as it inhibits speedy proceedings, not only in the instant case but in such other cases which could otherwise have used the time available in the Employment Tribunal and are otherwise delayed longer than would have been necessary. So we consider this is not simply a matter of competing interests of justice on the one hand and administrative convenience on the other. However, we would agree entirely that any attempt to impose an administrative yardstick does defeat the interests of justice in the individual case.
21. We were also referred to the case of McCarthy Crisante Mafay Incorporated –v- Brown, another unreported decision of this Tribunal, EAT/1019/93, before Mr Justice Mummery. That is in a way, a more pertinent case and the facts are worth just referring to, because in that case, there had been one postponement and a further hearing date was given. A second postponement was applied for on the grounds that the main witness would be in South Africa and that she was clearly someone who was going to give relevant evidence and the Employment Appeal Tribunal recognised that postponing a 2-day hearing at very short notice would increase rather than diminish the problems of what was then the Industrial Tribunal in managing its case load. Mr Justice Mummery as he then was said:

"We have to view that general difficulty, however, against what is required as a matter of justice between these parties. We can only interfere with a decision of refusing postponement if we are satisfied that no reasonable Tribunal would have refused an adjournment in these circumstances. We have to be satisfied of that because the jurisdiction of this Tribunal is limited to errors of law on the part of an Industrial Tribunal. We have reluctantly come to the conclusion that the only reasonable step that could have been taken by the Tribunal in this case was to grant an adjournment. If the matter had proceeded on 20^th December in the absence of Loretta Gell, there would still have had to be an adjournment of a part of the case for her evidence to be given at a later date."

22. In argument before us, Mr Waite, on behalf of the Appellant, having directed ourselves to those various matters, suggests that 2 weeks or so at the time the request was first made would not have caused any injustice in this case and that speed should not be preferred to justice, and the refusal of the application amounts to sacrificing justice for speed. Mr Coppinger, on behalf of the Respondents, says that the Chairman, on 13^th August, was faced with a clear situation in which a legal organisation appearing as Respondents, had not complied with the general guidance on the Notice of Hearing, had attended at the Hearing by instructing Counsel to apply for an adjournment but not to take part in the proceedings, had not produced any written statements from witnesses or anything of that kind supporting the case. He submits that many of the issues, in any event, could have been dealt with in other ways without the attendance of the witness to whom reference was made. He also points out that none of the requests had actually detailed the specific evidence that would have been given. He suggests that the matters contained in the Notice of Appearance, so far as there are Wages Act claim, would not have been an answer except by the production of evidence which could have been done by anyone in the partnership, because an employer could not set off claims against a Wages Act claim unless he could show an entitlement in writing from the Contract of Employment. In any event, a suggestion that someone is not an employee overlooks the wording of entitlement of any worker, whether employee or not, under the Wages Act. So far as unfair dismissal is concerned, he would suggest that the absence of these witnesses was not obviously crucial in any event.
23. However, it is clear on the face of the decision that no reference was made by the Learned Chairman to any of the matters raised in the Notice of Appearance, so that whether or not any of those matters formed part of the thought processes of the Tribunal is a matter that we do not know about one way or the other.
24. The exercise of a discretion by the Employment Tribunal as to whether or not to grant an adjournment has been said, rightly in our view, to be an exceedingly difficult judicial decision to reach. It requires, as the authorities have made clear, that a Chairman views the facts of each individual case and weighs the issues. The importance of refusing an adjournment is significant because in reality, the final outcome of the whole case may be determined if an adjournment is refused because of the effect it has upon the evidence available before the Employment Tribunal. In this case, we would make reference to two features of the way the discretion was exercised. Although we recognise that there is guidance in the form of a practice direction from the then President of the Industrial Tribunals as to when applications for postponement will be refused, we note first of all, that the non-availability of witnesses is specifically referred to, but we would also point out, indeed in line with the decision of the Court of Appeal in Carter -v- Credit Change Limited that to seek to provide by any general practice or rule a filter which is effectively applied to individual cases is, in itself, to restrict the exercise of discretion in that individual case. On the face of the very letter which was written in this case, it can be seen that when dealing with the application in correspondence to grant an adjournment, on the face of the letter, the Chairman did not consider the facts of the individual case, weighing the different elements, including the prejudice to one party if refused, the prejudice to the other party if granted. Rather the discretion was exercised in the light of the question, "How does this fit with the guidance contained in the Notice of Hearing" and that is a much more limited exercise of discretion. Of course, in exercising discretion in the individual case, a Chairman will have regard to what is written on the Notice of Hearing and the guidance given there, but that is a very different matter from using it as a yardstick by which to assess an application for an adjournment.
25. It seems to us that it is contrary to the provisions of the Rules to exercise discretion in that way. The Rules require a broad exercise of discretion in the individual case. It seems to us therefore, that we are driven to conclude that the Chairman, whoever it was who exercised discretion in that case, did so contrary to principle. But that, as we have said, is not the substance of this Appeal, because an Appeal from that directly is out of time. However, such a decision appears to have been adopted down the line and on the morning of the Hearing an application was made which was refused and we have to record that it was refused without any reasons having been given. To refuse an adjournment is a decision of an Industrial Tribunal. It was part of the decision that was made at the final Hearing and the Rules do require that reasons must be given for a decision. We recognise the enormous pressure that an Employment Tribunal is under. We recognise that the Chairman on this occasion may have had very good reason for refusing the application, but on this occasion, it seems to us that we are driven to conclude that a very experienced Chairman indeed, on this particular issue, omitted to state the reasons for her decision and that of her colleagues and thereby, committed an error of law to which we must react.
26. Therefore, because on the one hand it is essential that applications for adjournment are dealt with on their own merits in the light of the particular circumstances of the case, with a view to the general guidance but not compliance with it as being a condition precedent to the granting of it, and on the other because no reason was stated we allow this Appeal. We are not, on the information before us, able to form a judgment one way or the other, as to whether the application to adjourn should have been granted on the morning of the Hearing. We therefore, do not substitute any view about that and of course, it is now of academic interest. It seems to us that the only way this matter can now be dealt with satisfactorily is for it to be remitted for a re-hearing jointly of both applications in full before a differently constituted Employment Tribunal.