United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARC JONES (Solicitor) Instructed By: Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE CHARLES: We have before us today an appeal in a case where the parties are a Mr Jones who is the Applicant and the Appellant before us and East Surrey College. The claim is one for discrimination by way of victimisation.

1. A notice of the hearing was sent by the Employment Tribunal, London (South), dated 22 September for a full merits hearing listed for 3 November. That was received by Mr Jones' Solicitor on 25 September and, very promptly, they wrote to the Tribunal seeking an adjournment.
2. The basis of that request was that Mr Marc Jones of Underwoods had acted for Mr Anthony Jones, the Applicant, throughout and the Applicant wished to have Mr Marc Jones of Underwoods representing him at the Employment Tribunal. In that letter the Applicant's Solicitors make the assertion that they do not think that the Respondent would be prejudiced. It is apparent, however, from the letter that they had not contacted the Respondent who were represented by Eversheds, as to what their attitude was.
3. We have been told today by Mr Marc Jones of Underwoods that his understanding of the practice is that the Employment Tribunal make contact with the other side. That may or may not be the practice of this and other Employment Tribunals; we do not know. However accepting that it is, to our minds it is nonetheless remarkable that any firm of Solicitors seeking an adjournment on the basis that their client wishes them to represent him at an Employment Tribunal would not think it appropriate to contact the Solicitors on the other side to ask them what their stance is and to discover what, if any, allegation of prejudice would be made on behalf of the Respondent.
4. The first time that we are aware of anybody asking the Respondent directly of their position is when the Registrar of this Tribunal wrote to Eversheds in connection with the appeal and in response to that by a letter of 11 October 2000 they say:

"We can confirm that East Surrey College does not wish to oppose the appeal.

We can also confirm that we did not object to the original application for a postponement, which was made by the Appellant."

That letter was copied to Mr Marc Jones of Underwoods and it is unclear to us whether that non-objection was conveyed to the Chairman of the Employment Tribunal before he made his decision.

5. As will be apparent from what I have already said, the Chairman refused to adjourn the hearing and also he refused a review. In his reasons he does not refer to the fact that Respondent are not objecting to an adjournment and accordingly, are not asserting that they would suffer any prejudice. The reason for that may be that he simply was not given or did not obtain this information. We repeat that whatever the practice of an Employment Tribunal in respect of applications for an adjournment, it seems to us that any party seeking the indulgence of an adjournment should take steps to ensure that an Employment Tribunal is made aware of the attitude of the others, so far as he can do so.
6. We accept that there might be difficulty in this respect when a party on the other side is not represented: that was not this case. Underwoods could undoubtedly have talked to Eversheds and given the Chairman of the Employment Tribunal the advantage of the views of both firms.
7. However, in the above circumstances it seems to us that the Chairman, for whatever reason, has not taken into account a material factor in the exercise of the discretion whether or not to allow an adjournment, that factor being that the Respondent had and has no objection and thus would suffer no prejudice.
8. This was the first time that the matter was due to come on for a full hearing and, in those circumstances, it seems to us that an error of law can be established, not on the basis that the Employment Tribunal reached a decision that no reasonable Employment Tribunal could reach but on the basis that a relevant factor was not taken into account (or shown by the reasons given to have been taken into account).
9. We have sympathy for the Chairman as to this because it does not seem to us that it is incumbent upon him to carry out investigations so far as the Respondent is concerned. However, for the reason we have given, it seems to us that the appropriate course is for us to allow this appeal.
10. There are no additional facts which would be put before a Chairman on the re-exercise of discretion. Therefore, it seems to us that we should exercise the discretion ourselves. In doing so it seems to us that the compelling factors in this case are that the Respondent has no objection to an adjournment, this was the first date for the hearing and the application was made very promptly. Additionally, the claim is one for victimisation and we would accept that in such a case there is an advantage in, although not a necessity for, the Applicant being represented.
11. In the skeleton argument that was put before us a number of points were raised which we do not consider it necessary to deal with. We were also asked to give general guidance. It seems to me that it would be inappropriate to do that in the absence of argument from the other side, particularly when Human Rights points are raised.
12. We would comment however, that a point is raised that it is the policy of the Applicant's firm not to instruct agents or counsel. In part that is, as we understand it, based on them acting on a contingency fee basis. We confess that our preliminary view is that we would be troubled if such a policy were generally to be treated as a strong factor in favour of the grant of adjournments or something that founded an adjournment. Of course, each case would have to be considered on its own facts. But further and, in any event, it seems to us that any firm that operates such a policy should inform its clients expressly of the possible problems that could arise, having regard to the listing of their hearings and the well accepted public interest in the promotion of justice by hearings taking place as soon as is practical. That public interest relates not only to the litigants in the given case but also to litigants more generally.
13. In this case for the reasons we have given, we allow the appeal. We express our sympathy for the Chairman. We remit the listing to the relevant Employment Tribunal with an indication that in this case, we are the view that on re-listing, the availability of the Respondent's advisers (who have not objected to the adjournment) should be taken into account.