United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J McCARTHY (Solicitor)
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: This case is proceeding in the London (South) Employment Tribunal.

1. On 18 November 1999 the Applicant, Mr James Coleman, presented an Originating Application to the Tribunal complaining of unfair dismissal and disability discrimination. He named as Respondent (1) his former employer, Rentokil Initial Security Services Ltd (Rentokil) and (2) Workplace Management Ltd (WML), which provided management services to the Company, Wang Global, to whom the Applicant's services were provided by Rentokil.
2. On 4 February 2000 the Tribunal sent out a Notice of Hearing to the parties, fixing a preliminary hearing for 20 April. We assume that that Notice contained the usual warning that "unless there are wholly exceptional circumstances no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this Notice. Any such application must be in writing and state the full grounds and any other available dates in the six weeks following the above hearing date".
3. Within that 14 day period, by a letter dated 16 February, Employment Consultants, David Wilcox Associates, who were advising WML, applied for an adjournment on the grounds that "all three advocates are unavailable that day due to existing commitments". It turns out that that was a reference to the three Solicitors in the firm of Richard Hutchinson & Co, Mr Hutchinson the Principal and the two Associate Solicitors, Sally Mackie and Jo McCarthy.
4. David Wilcox Associates offered alternative dates beginning with 8 May 2000.
5. By a letter dated 18 February 2000 a Chairman refused that request for the following reasons:

"(1) The Chairman does not feel that the interests of justice require it.

(2) It is not normally the practice in these Tribunals to postpone hearings because a particular representative is unable to attend. The Chairman expects the representative to ensure that alternative representation is arranged.

(3) It is noted that your opponent consents to the postponement, but ultimately a postponement is a matter for the Chairman's discretion exercised in the interests of justice."

6. Following receipt of that letter, by a letter dated 22 February, Mr Hutchinson, the Solicitor, renewed the application for a postponement. He pointed out that he had a prior training commitment booked for 20 April and the other two advocates in his firm would be on pre-booked holidays on that date. Further, he indicated that WML wished Mr Hutchinson to represent them. He was the advocate of their choice.
7. By a letter dated 29 February the Chairman reconsidered the matter but affirmed his earlier order.
8. Against those two orders WML now appeal by a Notice dated 14 March.
9. In response to the appeal Mr Coleman opposes it on the basis, he says, that WML have had sufficient time since 4 February to arrange alternative representation for 20 April. Rentokil do not oppose the appeal, but make this point in their letter to the EAT dated 24 March, that as far as they are concerned the decision to postpone the preliminary hearing was a matter for the Chairman's discretion exercised in the interests of justice and that they are of the opinion that this is a point which the Employment Appeal Tribunal does not have jurisdiction to hear on appeal.
10. Dealing with that latter point, it is now well established that in considering appeals against interlocutory orders such as this, that is an order refusing a postponement under rule 13(7) of the Employment Tribunals Rules of Procedure, we do not have a general power of review. We can only interfere when an error of law is made out. That means, as Arnold J explained in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, 782 B to C, that the decision is challengeable on Wednesbury principles. That statement of the law was expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918 F.
11. Today, Miss McCarthy appears before us on behalf of WML. In support of the appeal she first reminds us of the points which were made in support of the postponement application. They are these.

(1) That all three advocates at the WML's Solicitors were unavailable due to one having a prior training commitment and the other two having pre-arranged holidays.

(2) That the other parties did not object to the original application for a postponement.

(3) That other dates within the following six week period were made available.

(4) That no objection would have been taken on behalf of WML if the hearing date had been brought forward.

(5) That WML particularly wanted Mr Hutchinson to represent them.

(6) That Mr Hutchinson had already provided significant advice in this particular case.

12. Next, she has referred us to the notice on the original Notice of Hearing and also an extract from what she describes as "the Practice Direction" which says this:

"Postponements

The guideline is that, apart from the period of 14 days after the first notice of hearing is despatched (assuming no prior consultation), postponements will be allowed in exceptional circumstances only. In particular they will not normally be granted because a lawyer is unavailable."

13. She submits that that Practice Direction and the rubric on the Notice of Hearing are ambiguous, in that it is open to the interpretation that an application for a postponement within the first 14 days after the date of the Notice of Hearing will, in normal circumstances, be granted. That is not how we understand the wording. It seems to us that it is a warning to parties that, if they delay for more than 14 days, their application for a postponement will usually only be granted in exceptional circumstances. It does not indicate to us that an application made within the first 14 days will, as a matter of course, be allowed. In any event, each case must be decided on its own facts by the exercise of judicial discretion.
14. She next submits that what has happened in this case is that instead of exercising his or her discretion judicially, the Chairman has simply applied a rigid policy. Finally, she has drawn our attention to a decision of this Appeal Tribunal, Morison J presiding, in Yearwood v Royal Mail, (EAT/843/97, 11 July 1997, Unreported). In that case an application was made for an adjournment by the Applicant's representative, a worker with the Wellingborough District Racial Equality Council. This Appeal Tribunal allowed an appeal against a Chairman's refusal to grant that adjournment and at page 3 F, Morison J said:

"Therefore, with difficulty, we have on balance been prepared to accede to this appeal. Although for technical reasons we are forced to say that the refusal of an adjournment was, in our judgment, so unreasonable as to be worthy of our interfering with it, we would like to make it quite clear that we are not unappreciative of the reasons which must have lain behind the attitude which has been taken by the Chairman in this case."

15. That was a case in which the ground for applying for an adjournment was the unavailability of the Applicant's representative and in allowing the appeal, the Appeal Tribunal took into account that the Racial Equality Council was a charity and one which was not in receipt of substantial funds. Even then, it seems to us with great respect, this Appeal Tribunal had some difficulty in fitting the case into the legal matrix identified by Arnold J in Bastick v James Lane (Turf Accountants) Ltd. However, they also make this observation, at page 2 E of the judgment:

"Had the organisation to which I have referred been a professional firm of Solicitors, there could be no doubt but that it would have been the right decision to have refused an adjournment and to require Mr Yearwood to obtain alternative legal services, or possibly the services of a different partner within the same firm."

16. We have considered those arguments with care. However, we cannot be satisfied that the Chairman has simply adopted an inflexible policy in this case. The normal practice, he indicates, is not to grant a postponement because a representative is unavailable. That does not mean that in every case no postponement will be granted, it simply sets out what is the normal practice of the Employment Tribunals, which have to deal with the listing of a vast number of cases. Interests of justice require that the interests of all litigants are considered in the context of any particular case, as well as the specific interests of the parties.
17. In our judgment the Chairman cannot be said to have reached a perverse conclusion in law. This is a case in which the Appellant's Solicitors could have instructed Counsel and/or could have instructed agents for the hearing in Croydon, they being based in Nottingham. There is no suggestion that WML are impecunious.
18. In these circumstances it seems to us that the perversity test has not been made out and consequently we have, as Rentokil submitted, no power to interfere with this Chairman's decision. Accordingly, this appeal must be dismissed.