United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	WRITTEN SUBMISSION
For the Respondent	WRITTEN SUBMISSION


 


MR JUSTICE MORISON: This is an appeal against the Tribunal's refusal to adjourn a hearing which is due to take place on 9 September. The grounds on which the application for an adjournment has been made on more than one occasion to the Employment Tribunal is the unavailability of the chief witness for the Respondents to the application for unfair dismissal brought by Mr Gotts against Sainsburys Supermarkets Ltd, namely Mr Gotts' Manager (Mr Parry) at the branch where he worked who was responsible for selecting him for redundancy.

1. The information provided to the Employment Tribunal is that Mr Parry is to undergo exploratory heart surgery on 10 September 1999, in other words, the day after the date fixed for the hearing. No information is given as to the nature of the exploratory operation but apparently he has been diagnosed as suffering from coronary heart disease which will result in open-heart surgery. Nor is it possible for Sainsburys to indicate when it is that Mr Parry will be available to give evidence in relation to Mr Gotts' complaint which was presented to the Employment Tribunal on 22 June 1999 in relation to his dismissal which took effect from 4 June.
2. The Tribunal has indicated that the case will proceed as listed on 9 September and that Sainsburys will have to call such witnesses as are available to present its case. If it becomes clear that the issues cannot properly be determined on the basis of the evidence then available, the Tribunal will give further directions on the day. In other words the Tribunal is indicating that they want to see how the case can progress without Mr Parry if he is not to be called as a witness and whether it is going to be necessary to await his recovery from his heart surgery if that is what he eventually has to undergo before continuing with the case.
3. It is the President's experience that applications for adjournments of cases are particularly difficult to adjudicate upon. The Court will have regard to the interests of both parties as well as to the wider public interest in ensuring that cases are heard as soon as practicable and in accordance with the listing arrangements made by the particular Court or Tribunal.
4. In this case Mr Gotts opposes the application and the appeal on the basis that he finds it difficult to understand how the Respondents come to say that Mr Parry is unfit. He puts it this way:

"I am left in some confusion as "Eversheds" (the solicitors for Sainsburys) letter of 27/08/99 states that Mr Parry is currently undertaking only light duties for two and a half days per week.

I know for a fact that Mr Parry worked on Friday 3^rd Sept.., All day Sunday 5^th Sept. and again all day today the 6^th of September."

Because the decision whether to grant an adjournment or not is both important and difficult to take, having regard to the conflicting interests, it is seldom that the Employment Appeal Tribunal will think it appropriate to interfere with the discretion which unquestionably the Chairman has.

5. The argument presented by the Appellant in this appeal is that they recognise that the Tribunals have a wide discretion to grant or decline applications for adjournments. They recognise that the Employment Appeal Tribunals ability therefore to interfere with the exercise of a discretion, such as the Tribunal has in interlocutory matters, is limited. They submit, as is the case, that the Employment Appeal Tribunal has jurisdiction to allow an appeal in appropriate circumstances and they invite me to take the view that the decision of the Employment Tribunal was perverse. They say that the reason why they have not been able to say when Mr Parry will be available to give evidence is obvious from the circumstances outlined. They submit that it appears that the Tribunal have made their decision on the basis that Mr Parry is particularly ill and that if he had been less ill the postponement would have been granted. Thirdly they say that it is unfair because the Applicant has previously requested an adjournment, which adjournment was granted without question. This submission is made:

"It is outrageous to deal with the Appellant's request on manifestly more pressing grounds in the manner in which it has done so."

And we were invited to take the view that the decision of the Tribunal was truly perverse.

6. I have to say that the language with which some of those submissions have been couched is more extreme than one would have expected in a case such as this. Whilst obviously the Tribunal has to be even-handed it does not follow that because one party has been granted an adjournment it becomes just or sensible to grant the other party's request. The word "outrageous" is inappropriate. This is a difficult balancing exercise for the Employment Tribunal. Very sensibly the Tribunal has not shut the door to the possibility that the case may not be able to proceed, doing justice to both parties, in the absence of Mr Parry, but they are entitled to require Sainsburys to demonstrate to them at the hearing, which is fixed for 9 September, that indeed their case cannot properly be presented without Mr Parry and that indeed Mr Parry is genuinely unavailable for that day. It also is likely that the Tribunal will wish to explore with Sainsburys whether in the event of Mr Parry being unavailable it is possible for his evidence to be given in the form of an affidavit or written witness statement and they will no doubt wish to ask questions of Sainsburys' advisors to find out what steps have been taken to obtain a statement from Mr Parry the moment they realised there was going to be a problem over the timing.
7. In those circumstances, because the Tribunal is entitled to review this matter again at the hearing on 9 September, I am very far from being persuaded that the way the Tribunal has approached this matter so far could be described as 'perverse'. Indeed it seems to me, on the basis of the material I have seen, that their decision was entirely reasonable. They can review the matter on 9 September as I have indicated in the light of proper information provided to them which will enable them to make sure that justice is done between the parties. Accordingly this appeal is dismissed.