United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK: The Appellant, Mr Knauer, commenced these proceedings by an Originating Application presented on 15^th April 1999. The case is proceeding in the Stratford Employment Tribunal. His claims are resisted by the Respondents, St George North London Ltd, by whom he was employed from 28^th January 1998 until his summary dismissal on 19^th January 1999.

1. The issue in the case is whether he was unfairly and/or wrongfully dismissed for gross misconduct. The unfair dismissal claim has been stayed in view of his short service pending the outcome of the Seymour-Smith litigation. The remaining claim is due to be heard at Stratford on 23rd July 1999.
2. On 7^th July the Appellant applied for an adjournment on the basis that his Counsel, who is a personal friend assisting him on a pro bono basis, will not be available for the hearing on 23^rd July. He offered the 3^rd, 4^th & 5^th August as alternative dates. That application was opposed by the Respondent. Their grounds for doing so are set out in a fax to the Employment Tribunal dated 9^th July and are as follows:

1. "The chief witness for the Respondent, Mr Lewis, has made arrangements to be able to attend the hearing on 23^rd July 1999;

2. Mr Lewis will not be able to attend on the alternative dates suggested by the Applicant;

3. Mr Lewis will be out of the country from 16^th August 1999 until 3^rd September 1999 and on that basis, a postponement would lead to a lengthy delay in the eventual hearing of the application which is in neither parties best interest;

4. The Respondent has prepared its case on the basis that it will proceed on 23^rd July and to this end has engaged Counsel;

5. We note that the sole reason for the request for the delay is non-availability of the Applicant's chosen Counsel. We would point out that the notes accompanying the Notice of Hearing refer to the fact that non-availability of a particular Counsel is not normally a sufficient reason for postponing a hearing. In this case the Applicant has instructed solicitors who will presumably be able to appear on his behalf."

3. The Appellant responded to that fax on 12^th July. He said that he did not feel that his solicitor was in a state of mind to represent him. He did not feel able to represent himself. On the same date, a Chairman refused the application for an adjournment. His stated reason for so doing was that the Appellant was a senior employee in a well-paid position and must be capable of presenting his own case. Against that Order Mr Knauer now appeals.
4. Neither party appears before us today and we have considered the Appeal on the papers. Our powers to interfere with an Interlocutory Order made by an Employment Tribunal or a Chairman are correctly set out in the Respondent's written submission which is before us. We shall apply the principles set out by Mr Justice Arnold in Bastick -v- Jones Lane [1979] ICR 778, 782, as approved by the Court of Appeal in Carter -v- Credit Change Ltd [1979] ICR 908, 918.
5. The basis for the Appeal is that the Appellant will not have representation at the Hearing before the Employment Tribunal fixed for the 23^rd July. That submission was considered and rejected by the Chairman, having taken into account the grounds for opposition advanced by the Respondent. We are unable to say that in so deciding, the Chairman exercised his discretion impermissibly. He must balance the interests of both parties. In our judgment no error of law is made out in this Appeal, and consequently, it must be dismissed.