United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J STUART (of Counsel) Messrs Mullis & Peake Solicitors Marshalls Chambers 80a South Street Romford, Essex RM7 9EL
For the Respondent	MS P NEGUS-FANCEY (Solicitor) Messrs Swepstone Walsh Solicitors 9 Lincoln Inn Fields London WC2A 3BP


 


MR JUSTICE HOLLAND: We have before us an Interlocutory Appeal which arises in the following circumstances. By his IT1 dated 19 October 1998 the Applicant, Mr Anton Escalera complains of constructive unfair dismissal and of illegal deduction of wages and holiday pay. That complaint of unfair dismissal relates to his departure from employment with the Respondents as a chef on 3 September 1998. The application was met by a Notice of Appearance of 11 November and on 24 November 1998 the parties received a Notice of Hearing telling them first that the hearing was to be at Bury St. Edmunds and second, that it was to be on 4 January 1999.

Neither party, it would seem, was happy with that direction. The Respondents by letter applied for transfer to London with a new hearing date and the Applicant applied for an adjournment until after 18 January, his reason being was that he was making a trip to the West Indies with a view to obtaining fresh employment. The Bury St. Edmunds Tribunal responded by notifying a new hearing date, namely, a hearing on 1 March 1999. It was further at that stage that the Tribunal was given a time estimate of two days.

On 20 January 1999, the Applicant made a further application, this time for a transfer to London. That application was acceded to and the result was that a Notice of Hearing was given by the Tribunal at Stratford, specifying as a date the 14 and 15 April 1999. There then followed correspondence between the Respondents, by their solicitors, and the Employment Tribunal. The first letter was dated 4 March and it was in these short terms:

"We refer to the Notice of Hearing dated 23rd February. Unfortunately our clients main witness will not be available during the period 14th and 15th April due to being away on vacation.

We would appreciate it therefore if the Tribunal could fix an alternative date after the 26th April."

That elicited an early response from the Tribunal dated 8 March in reading so far as relevant:

"......

2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bring this case to a hearing without delay.

3. The Chairman refuses your request for the following reason:

This is not a meritorious reason, you may apply for a witness order to secure attendance if you wish, this case has already been delayed and is become stale and it is not in the interests of justice to delay it further".

That in its turn elicited a response from the Respondents' solicitors dated 12 March 1999. In the body of the letter they ask for facilities for a personal application for the Chairman. Thereafter they make various points in support of their initial application. That was answered by way of a letter of the same date, in terms:

"The Chairman has refused your application for a postpone, and states that, once again you have not indicated why the vacation of your clients main witnesses whom I now take to be the Managing Director and his wife, should take priority over the Tribunal hearing date. The Applicant objects to the postponement on the grounds that this case is taking a long time to come up for hearing.

The Chairman is of the view that delay in this case is not in the interest of justice, as the memory of witnesses will become dimmed even further with the passage of time."

The Respondents' solicitors reiterated by a letter of 16 March their wish to have a personal hearing before the Chairman and that gained a response dated 17 March 1999:

"The Chairman has refused your application, and further directs that you can of course renew your application before the full Tribunal on 14 April 1999."

It was in those circumstances that the Respondents initiated an appeal to this Tribunal which appeal has been resisted. The case for the Respondents is that the decision to refuse the adjournment was perverse in the sense that it cannot have reflected a proper exercise of judicial discretion. They point to the merits of their application which seemingly reflect some long standing arrangement. There is a further reliance upon the history of the matter, which shows a willingness to have this hearing at time reasonably approximate to September 1998 when the complaint arose and not to delay it excessively. There is further reliance upon the proposition that a two day allotment as made by the Tribunal is now seemingly inadequate having regard to the number of witnesses that each side proposes to call to deal with this matter.

In response the submission is that this was a decision with which we should not interfere and so far as the time estimate is concerned it is said, no doubt correctly, that at some earlier stage a two day estimate was fixed and currently there is no knowledge of circumstances that would serve to make that inappropriate.

We turn to our approach to this matter. We have to say that looking at the chronology that is put before us, it is difficult to discern the exercise of judicial discretion. In that regard, we draw attention to the fact that it is highly unlikely that the Chairman in question, making the decisions, first, to deny an adjournment and, second, to deny even an appointment for personal representations can have had all the full facts before him.

It is difficult further to reconcile a direction that the application could be renewed at the outset of the hearing on 14 April with the exercise of a discretion taking into account all the circumstances of the case.

Standing back from this matter, this is a complaint which arises as recently as September; granted that there is every pressure to get this matter before a Tribunal as soon as possible, nonetheless we are hardly looking at a period of grossly excessive delay. It is in those circumstances that we feel entitled to exercise the discretion again, and we do so by directing that the matter be taken out of the list for the 14 April, and listed on some subsequent date.

We wish to add forcefully that it is absolutely essential in this case that the parties now put their minds as a matter of urgency, to agreeing upon a time estimate that reflects the present anticipated state of the case. With such a time estimate we would invite the parties jointly to approach this Tribunal with a view to securing the earliest possible date, consistent with that time estimate, for this matter to be heard.

We would hope that the Tribunal itself would seek to give these parties the advantage of any apparent vacancy, perhaps even a vacancy that arises at short notice.

With joint co-operation, then there is no reason why this matter should not come before a Tribunal at a time that is genuinely convenient to both sides, and thus genuinely conducive to a full and adequate hearing before the Tribunals, so as to resolve these issues. We allow this appeal.