United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER OLDHAM (of Counsel) London Fire & Civil Defence Authority Legal Services Dept. Room 611 Main Building fire Brigade Headquarters 8 Albert Embankment London SE1 7SD
For the Respondent	Respondent neither Present or Represented


 


JUDGE CLARK

1. This is an appeal by the Respondent before the Stratford Employment Tribunal, LFCDA, against an interlocutory order made by an unidentified Chairman and contained in a letter dated 21 March 2000, refusing the Respondent's request for a postponement of the substantive hearing in this case fixed for 14 – 18 August 2000. That order was affirmed, following further written representations on behalf of the Respondent, by a letter dated 24 March.
2. These proceedings were commenced by the Applicant, Mr Samuels, a firefighter employed by the Respondent at Poplar Fire Station by an Originating Application presented on 26 August 1999. He complains of unlawful racial discrimination. Among those employees of the Respondent against whom allegations of discrimination are made, is Station Officer Byrne. The claim is resisted.
3. On 16 February 2000 a directions hearing took place before a Chairman at Stratford. The lawyer dealing with the Respondent's case was on holiday on that date. He instructed Counsel, Ms McCafferty to represent the Respondent's interests at that hearing.
4. Anticipating that at the hearing a date would be fixed for the substantive hearing that lawyer, Mr Bielby made enquiries of his witnesses as to their availability. Unwisely, he limited his enquiries to the months of May and June 2000, based on his experience of listing in another region, London (South). There were no dates to avoid during that period. In these circumstances, in discussing the case with Counsel before the Directions hearing, he did not raise the question of any dates to be avoided.
5. At the directions hearing the Chairman fixed the full hearing for 14 – 18 August without objection or comment by Ms McCafferty.
6. Following Mr Bielby's return from holiday on 21 February he spoke to Counsel and then learned that the hearing had been fixed for 14 – 18 August. He then spoke to Mr Byrne, who said that he had booked his holiday for the period 7 – 26 August. He planned to spend the first week in Cumbria with his family and then to take them to Spain for the remainder of the holiday to visit his parents who live there.
7. The directions made by the Chairman on 16 February were recorded in a letter to the parties dated 24 February. Mr Bielby received his copy of that letter on 28 February.
8. The following day, 29 February, Mr Bielby wrote to the Tribunal stating that Mr Byrne would be on annual leave and out of the country for most of August. He could not attend the Employment Tribunal on any of the days listed. His evidence was important. He asked for an adjournment to dates after the 4 September.
9. The Employment Tribunal replied by letter of 7 March 2000, raising a number of questions, namely: -

(i) Why Mr Byrne's absence was not know to your representative at the hearing.

(ii) When was his holiday booked and what are the exact dates of his absence

(iii) Please supply a copy of his booking forms.

(iv) Has any consideration been given to asking Mr Byrne to take any alternative holiday?

10. Answers were given to those specific questions by a letter from the Respondent dated 20 March 2000. It was said that the Respondent was not aware that the full merits hearing would be listed so far in advance, but Mr Byrne was due to take annual leave from 14 July until the 26 August. From 14 July – 7 August he would be at home looking after his children, during their summer holidays. From 7 – 14 August he would be on holiday with his family in Cumbria and from 14 – 26 August, he and his family will be travelling to Spain where they will be staying with his parents. It was said that no travel bookings had been made for the holiday in Spain. By a letter dated 21 March the Chairman refused to order a postponement on the grounds, at first that the Respondent was asked to bring a details of availability to the directions hearing and they did not query the dates given. The second is that the witness Mr Byrne could be available, as he had no fixed arrangements.
11. The Respondent asked the Chairman to reconsider the decision, with grounds set out in a letter dated 23 March 2000. The matter was reconsidered, but the decision affirmed for the following reasons contained in the Tribunal's letter of the 24 March: -

(i) the parties were clearly warned to check on availability and no such indication was given that there would be problems over the dates

(ii) It would seem unlikely that the witness would be required to attend upon the first day of trial and his holiday in Cumbria would not be affected. He can also be released after he has given his evidence, as he has no fixed travel plans he should not be greatly inconvenienced.

(iii) If the witness declines to attend, you have the right to apply for a witness order.

(iv) None of the reasons you have put forward outweigh the interest of justice in bringing this matter to a hearing as fixed.

12. Against the Chairman's order refusing a postponement this appeal is brought. The appeal is resisted by the Applicant. He has not attended today and is not represented and no submissions have been made on his behalf.
13. As we understand the limits of our jurisdiction the Employment Appeal Tribunal does not have the general power of review of interlocutory orders. See Ashmore –v- British Coal Corporation (1990) IRLR 283, approving the judgment of Waite J in Medallion Holidays Ltd –v- Birch (1985) ICR 578. The limits on the Employment Appeal Tribunal's power to interfere with interlocutory orders is illustrated by the Court of Appeal judgment in Carter –v- Credit Charge Ltd (1979) ICR 908, a postponement case. In Carter the Court approved the approach of Arnold J sitting in the Employment Appeal Tribunal in Bastick –v- James (1979) ICR 778, 782. The Employment Appeal Tribunal will only interfere on Wednesbury principles, that is to say that the Chairman has taken into account irrelevant factors, failed to take into account relevant factors, or has otherwise reached a perverse conclusion, that is one which no reasonable Chairman properly directing himself could reach.
14. Mr Oldham has referred us to a number of further Employment Appeal Tribunal decisions in which the question of ordering a postponement has arisen.
15. The first in time is Masters of Beckenham –v- Green (1977) ICR 535. That case pre-dates Carter. Although it has never since been expressly disapproved, our reading of the judgment of Kilner Brown J suggests that the Employment Appeal Tribunal in Green adopted the approach disapproved in Ashmore, that is to consider the exercise of discretion de novo. That, we are satisfied, is the wrong approach.
16. Next he referred us to a number of Employment Appeal Tribunal judgments delivered by Wood J, in the cases of First Class Ltd –v- West (1989) ICR 72; Warnock –v- Scarborough FC (1989) ICR 489; Bowater Plc –v- Charlwood (1991) ICR 789; JMCC Ltd –v- Conroy (1990) ICR 179.
17. Mr Oldham submitted that taken as a whole those cases indicate a departure from the strict Wednesbury test approved by the Court of Appeal in Carter. If such an approach can properly be discerned from any of those cases it is not, in our view, correct. However, we think that each of those cases turns on its own facts and circumstances. What is clear is that in each case Wood J correctly regarded the Employment Appeal Tribunal as being bound by the test approved in Carter.
18. Thus, applying the Wednesbury test to the facts of this case, has Mr Oldham succeeded in persuading us that the Chairman fell into error? He has not.
19. First he submits that Mr Byrne is a critical witness for the Respondent and, in the absence of express acknowledgement of that fact and the Chairman's short reasons it can properly be inferred that this relevant factor was not taken into account by the Chairman. We accept that Mr Byrne is an important witness. That is clear from the pleadings and correspondence which were before the Chairman. We are not prepared to infer that he disregarded that factor.
20. Secondly, it is said that the Chairman was wrong to conclude that Mr Byrne had no fixed travel plans. We disagree. What the Chairman was observing was that there was no pre-booked crossing to the continent for the purpose of the journey to Spain.
21. Third, that the failure to avoid Mr Byrne's holiday dates at the directions hearing was an innocent and explicable mistake. We accept that it was innocent and has been explained. Mr Bielby did not think to look far enough ahead when considering dates to be avoided. However, we cannot see how that assists the Respondents in this appeal.
22. Fourth, that the use of a witness order does not meet the underlying question as to whether or not an adjournment ought to be granted. However, that was not the sole factor taken into account by the Chairman. Nor is it irrelevant. The Respondent requires Mr Byrne's attendance for its defence to the Applicant's claim. If, and we are not entirely satisfied that this is the case, he is not willing to attend voluntarily then his attendance may be ensured compulsorily.
23. Fifth, there was not prejudice to the Applicant. Had the date been re-fixed at the time of the original application made on 29 February we accept that little or no prejudice would have been caused to the Applicant. However that is only one of a number of factors for the Chairman to take into account. It is not conclusive.
24. Sixth, the interests of justice. Mr Oldham asks rhetorically what interests of justice was served by refusing this application. The answer is, first it is in the interests of these parties to have this case heard as soon as is practicable. Secondly, and more generally, it is in the interests of all parties before Employment Tribunals that the Employment Tribunal system works speedily and efficiently. That requires parties to comply with the simple direction that they come to a directions hearing armed with dates to be avoided. The Respondent failed in that task in this case. Looking at the overall administration of justice in the Employment Tribunals we think that a Chairman is entitled to take into account this general consideration when considering a particular application to adjourn.
25. Finally, perversity. Having considered the matter as a whole we are not persuaded that this decision can be characterised as perverse in the legal sense. Another Chairman might well have granted the postponement in the circumstances of this case. That is not to say that either view is incorrect as a matter of law.
26. In these circumstances we shall dismiss this appeal.