United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR MICHAEL DUGGAN (of Counsel) Messrs Mills & Reeves Solicitors Francis House 112 Hills Road Cambridge CB2 1PH


 


MR RECORDER LANGSTAFF QC

1. This is an Interlocutory Appeal which is brought to us in the context of ongoing proceedings brought by the Appellant against the Imperial College Management School. It concerns a request for an adjournment which has its origin in the tragic events of 11 September 2001 in the United States. The Appellant wrote on 12 September 2001, in consequence of those events, seeking an adjournment of his forthcoming hearing. That was refused by letter dated
   17 September 2001. However, it was indicated in the refusal that the Appellant was free to reapply in the light of change of the situation.
2. It is not entirely clear that we have all the correspondence, but certainly a further application was made for an adjournment. That too was rejected. It was rejected in these terms:

"1 I refer to your letter of 20 September 2001 renewing your request for a postponement of the hearing fixed for 4 and 5 October 2001. The Chairman (Mrs R J Mason) has asked me to reply as follows.

2 In refusing your postponement request made on 12 September 2001, the day after the events in New York, the Chairman said that you could reapply when the situation became clearer. You may still do so. However, you must provide proper grounds for your application. If you are applying on the ground of ill health, you must provide a letter from your Doctor saying you are not fit enough to attend the Tribunal. A medical certificate merely stating you should refrain from work is not sufficient. If, on the other hand, you have suffered a bereavement, you should say so and set out the circumstances and the Chairman will consider them.

3 You should note that the granting of postponements by other courts and other Tribunals are not a sufficient ground of application for a postponement of the hearing in this case. The various enclosures to your letter of 20 September 2001 relevant to those (or otherwise) are not accepted as providing grounds for granting a postponement in this case.

That last paragraph is a reference to the fact that in his letter of 20 September 2001 the Appellant enclosed copies of a number of orders in a number of other proceedings which he has ongoing against other academic institutions in the United Kingdom in which the Chairmen of various Tribunals have granted postponements. His argument in essence is that there is inconsistency if this Tribunal too does not grant him an adjournment. "They have done it. Why don't you?" He also has obtained a Doctor's certificate which certifies him unfit to work for six weeks from 12 September 2001 suffering, it appears, from vertigo, anxiety, depression and stress.

3. We can only interfere with a discretionary decision as to adjournment if the Tribunal have exercised their discretion on some mistaken principle. We see no error of law in the approach which this Tribunal has taken. It is free to decide an application for adjournment in a different way to the way in which other Tribunals in the country may decide an adjournment, even on similar grounds. However, we would emphasise that it is made clear in the letter of
   21 September 2001 that if Mr Deman is unwell so as not to be fit to attend the hearing on 4 and 5 October, he may apply to the Tribunal again with a letter from his Doctor saying that he is not fit enough to attend the Tribunal. The Chairman here is drawing a distinction between a certificate which indicates unfitness for work and a letter which specifically makes reference to unfitness for Court or Tribunal proceedings. It follows that on that basis the appeal must be dismissed.
4. There is a second but unspecific appeal against an aspect of the letter of 17 September 2001 in which the Chairman indicated her unwillingness to vary a refusal made earlier to request written answers from the Respondent. We see no reason advanced why that decision by the Chairman was necessarily wrong in law. If follows that the appeal must be rejected on that ground too. This appeal is therefore dismissed.
5. We are faced with an application for costs by Mr Duggan which it would be very tempting indeed to accede to. He brings his request under Rule 34 of the Employment Appeal Tribunal Rules 1993 on the basis that this appeal was unnecessary. It was unnecessary, he says, because the door was held open by the Tribunal Chairman by the letter of 21 September 2001 for the Appellant to have returned with a letter from his Doctor saying simply that he was unfit to attend the Tribunal. Had he done so, the likelihood is that this appeal would have been entirely unnecessary.
6. We are not going to accede, however, to that submission for these reasons. First, there was no absolute certainty that had he returned to the Chairman that would have been the result, although we suspect it probably would have been. Secondly, he had some grounds for bringing the appeal upon the basis that other Tribunals had accepted his request for postponement on similar grounds. This Tribunal was the one which did not. It may have occurred to him that therefore this Tribunal was in error of law. It sometimes is difficult for a layman to understand that inconsistency as between Tribunal decisions is a necessary consequence of giving Tribunals a free and unfettered discretion. That discretion may be exercised in one case in a way which is a way that is the opposite of the way that it might be exercised in another. Thirdly, this appeal is not just concerned with the hearing date, it concerns also the refusal of a request for further and better particulars.
7. However, as we have indicated, we are sympathetic to the appeal. We would simply say this, that the decision of this Tribunal today should not preclude the Respondent, through Mr Duggan or otherwise, from raising the Appellant's conduct in coming to this Tribunal on this appeal at this time as part and parcel of the facts and matters which may lie behind any subsequent application they might contemplate making to the Employment Tribunal if it is thought appropriate to make one upon such grounds as then appear satisfactory for seeking a costs order.