United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK:

1. This is an interlocutory appeal by Mr Samuel Rosenfeld, the applicant before the Stratford Employment Tribunal, against an order made by a chairman by letter dated 16 October 2001, refusing his application for postponement of a hearing of a preliminary issue fixed for 22 October.

Background

2. The applicant presented his Originating Application on 18 July 2001. He there complains of unfair dismissal by his former employer, the respondent Medirest, on 26 August 1999. His employment began on 12 July 1999. Thus he had completed less than one year's qualifying service with the respondent but he contends that the reason for his dismissal was that he had made a protected disclosure. If that is right, no qualifying period of service applies.
3. However, the respondent, in their Notice of Appearance, took the point that the complaint was well out of time. The primary three month limitation period expired on 25 November 1999; the Originating Application was not lodged until 18 July 2001. No explanation for the delay has yet been given by the applicant on the papers before me.
4. In these circumstances, by letter dated 17 September 2001 a chairman directed that the case be listed for hearing of a preliminary issue, that of limitation under section 111(2) of the Employment Rights Act 1996, on 22 October.
5. On 29 September the applicant wrote to the tribunal, applying for a postponement of that hearing, in these terms:

"I acknowledge your letter of the 17^th September and advise accordingly, I am presently instructing solicitors in respect of this matter.

Further your notification of a hearing date of the 22^nd of October. I will be unable to attend due to other commitments outside the (United Kingdom), it is unlikely I will be returning until (February 2002), as such please amend and provide notification of an alternative date, taking the above into consideration.

Please note that I have forwarded a copy of your communication to the Solicitors concerned who will be in a position to contact you shortly.

I therefore look forward to hearing from you in due course."

6. By letter dated 16 October the chairman refused the request for the following reason:

"This is a Preliminary Hearing to determine jurisdiction and a delay will seriously effect the eventual disposal of any issues within the jurisdiction. Having brought the originating application, you must make yourself available to deal with it. Consideration will be given to a particular difficulty, but to be unavailable for four months is not reasonable."

Interlocutory Appeals

7. It is well-established that appeals from interlocutory orders made by tribunal chairmen are no different from appeals against substantive tribunal decisions. My powers to interfere are limited to correcting errors of law. Medallion Holidays Ltd v Birch [1985] ICR 578.
8. In practice, three questions generally arise in such appeals.

(a) was the order made within the powers given to the tribunal

(b) if so, was discretion exercised within guiding legal principles

(c) can the exercise of discretion below be attacked on "Wednesbury grounds", that is to say, did the chairman fail to take into account relevant factors; take into account irrelevant factors or otherwise reach a conclusion which was legally "perverse". Carter v Credit Change Ltd [1979] ICR 908, 918, per Stephenson LJ.

This Appeal

9. Due to the urgency of this appeal, relating as it does to a tribunal hearing fixed for the next working day, I have considered this appeal on the papers. Neither party is present before me.
10. Mr Rosenfeld puts forward as his grounds of appeal that the order to postpone is both unfair and interferes with his right to an effective remedy; his human rights have been infringed.
11. I cannot accept that submission. It is sometimes overlooked that both parties are entitled to a fair trial. That means that unnecessary delay should be avoided. The respondent suddenly find themselves faced with a claim substantially out of time. They want the issue of limitation resolved as soon as possible. The tribunal has correctly listed that issue for an early hearing before further costs have incurred. The appellant's reason for seeking a four month postponement is opaque. He has lodged his appeal, giving his home address, today. Presumably he will be available for the hearing on Monday.
12. Reverting to the ordinary principles of domestic law set out above, the chairman had express power to refuse (or order) a postponement under rule 15(7) of the Employment Tribunals Rule of Procedure 2001; there is nothing to suggest that he overlooked any guiding legal principle; his reason for refusal discloses no relevant factor overlooked or irrelevant factor taken into account; his decision to refuse the postponement is, on the facts here, a permissible option in my judgment.
13. In these circumstances I shall dismiss this appeal.