United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS J SLATTER (Representative) Human Resources Manager Bull Information Systems Ltd Windsor House 3-7 Albert Street Slough Berks SL1 2BH
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: By Originating Applications presented to the Employment Tribunal on, respectively, 5 June and 23 August 1998, the Applicants Darren Rose and Scott Joy contend that they were employed by the Respondent as apprentice desktop engineers from 14 April 1997 until termination by the Respondent on 1 May 1998. Mr Rose complains of unfair dismissal and breach of contract, Mr Joy of wrongful dismissal. The claims are resisted on the grounds, first that the Applicants were not employees of the Respondent; secondly that neither has two years continuous service for the purpose, in the case of Mr Rose, of unfair dismissal protection; alternatively, Mr Rose's dismissal was for some other substantial reason and was fair, and that both Applicants were dismissed lawfully in accordance with the terms of their contracts.

A preliminary issue, directed to the question of whether or not the contracts entered into between the two Applicants and the Respondent were apprenticeship schemes, is due to be heard on 14 April, that is tomorrow. That date was fixed by a Notice of Hearing dated 23 March after the parties had been canvassed as to convenient dates. At that time the date was convenient to all. It should be said that there has been a history and, in particular, a hearing fixed for November was aborted on the basis that there was insufficient Tribunal time to take the case.

On 6 April 1999 the Respondent applied for a postponement on the ground that its representative, Mr G. Reid, formerly employed in the Respondent's Legal Department, was unavailable for the hearing. His father has suffered a serious illness and Mr Reid junior has taken compassionate leave. The Applicants did not actively oppose that application.

The application was considered by a Chairman at Bury St Edmunds, Mr C.R. Ash. By letter dated 8 April the Employment Tribunal indicated that Mr Ash had refused the application on the ground that it had taken a long time to arrange a date, and he indicated that the Respondent would have to instruct an alternative representative.

Against that order the Respondent appealed by Notice dated 8 April. The Applicant, Mr Rose actively opposed the appeal and we have seen a skeleton argument submitted on his behalf by his Solicitors, Steele & Co. It is that Applicant's position that he wishes to get on with his case.

It is well-established in law that this Appeal Tribunal does not have a general power of review of interlocutory orders made by Employment Tribunals or a Chairman: see Adams & Raynor v West Sussex County Council [1990] ICR 546. An Appellant must first show an error of law on the part of the Chairman; that he took into account an irrelevant factor, failed to take into account a relevant factor, or otherwise reached a conclusion which can properly be characterised as perverse: see Carter v Credit Change Ltd [1979] ICR 908, 918, per Stephenson LJ, approving the approach of Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778.

Where is the error of law here? Ms Slatter has appeared before us on behalf of the Respondent company. She points out that the Respondent will be severely disadvantaged in preparing for the hearing tomorrow. Mr Reid has had conduct of this case throughout and agreed to continue acting after his contract in the Respondent's Legal Department came to an end. Unsurprisingly, they do not wish to start over again instructing new advisers at this late stage.

However, Ms Slatter has very properly told us that she has, on behalf of the Respondent, instructed very experienced Solicitors, Baker McKenzie, who in turn have arranged for Counsel to appear on behalf of the Respondent tomorrow. She further admits (with refreshing candour) that she comes here today without being able to point to any error of law on the part of the Chairman in the conclusion which he reached.

In the light of the current state of the law as we have summarised it above, it must follow that there are no grounds in law for us to interfere with the Chairman's exercise of his discretion. In these circumstances we have no alternative but to dismiss this appeal.