United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	SIMON DEVONSHIRE (of Counsel) Instructed by: Messrs Keene Marsland Solicitors Dragoon House 37 Artillery Lane Bishopsgate London E1 7LT
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


MR JUSTICE HOOPER

1. The Appellant Company, Donatantonio PLC appeals against the decision of an Employment Tribunal contained in a letter dated 26 January of this year, refusing the company's request for a postponement of the remedies hearing due to take place on 8 March of this year, following a determination by the Employment Tribunal in favour of Mr Peyser, in his claim for unfair dismissal.
2. Mr Peyser began his employment with the company in July 1998 and was dismissed in February 2000. In May he claimed unfair dismissal and his claim can be found at page 18 - 22. The ET3 is at pages 23 - 26.
3. On the first day of the hearing, on 5 October, unfair dismissal was conceded by the Appellant. The Appellant's case was the Respondent had been dismissed for reasons of redundancy. Nonetheless it was conceded that the proper procedural steps had not been taken, therefore the dismissal was unfair. It was further submitted however, that since his employment would, in any event, have been determined in the near future on the grounds of redundancy, that would reduce substantially any compensation which he might receive.
4. On the second day of the hearing the Tribunal considered the remaining issues, other than the issue of mitigation. That, it is important to note, was not dealt with because of lack of time. On 5 January the Employment Tribunal rejected the Appellant's case that the Respondent had been dismissed for reasons of redundancy, and accordingly rejected what is known as the "Polkey" argument. The Tribunal directed a reconvened hearing on 8 March to deal with remedy/mitigation. In the course of the hearing we are told that the Employment Tribunal generally preferred the evidence of the Respondent.
5. On 18 January the Appellant lodged an appeal against the substantive decision to which we have made reference. The basis of the appeal is that the Employment Tribunal misunderstood the evidence about the existence of certain vacancies. We have seen a letter today which concerns that appeal and the Respondent is arguing that the Appellant has misunderstood, or is in error about the evidence which was given.
6. Mr Devonshire, in his admirably brief submissions, has told us that the issue of what evidence was actually given will probably have to be resolved by the production of the Chairman's Notes of Evidence. We were told by Mr Devonshire that he would expect an appeal of this kind to be heard within 4 to 6 months.
7. On 18 January the Appellant wrote to the Tribunal with the Notice of Appeal and requested a postponement of the hearing fixed for 8 March on the basis that the remedies hearing would be largely academic, if its appeal succeeded. On 26 January that request for a postponement was refused on the basis that it was not in the interests of justice. It is that decision to refuse the request for a postponement that is the subject matter of the appeal before us today.
8. The Appellant asked the Employment Tribunal to provide full reasons for its refusal to postpone the remedies hearing. The reply was that it was not in the interests of justice to delay that hearing, pending the outcome of the appeal on the substantive matters.
9. Again, the Appellant requested extended reasons. In its reply, the Employment Tribunal said it was not in the interests of justice to postpone the remedies hearing and went on to write as follows:

"You will be aware that by virtue of sections 112 and following of the Employment Rights Act 1996, where a tribunal finds a complaint of unfair dismissal well founded, it is under a duty to deal with remedy."

10. It is submitted on behalf of the Appellant that that letter disclosed an error of law, namely that the Employment Tribunal was giving weight to, and only to, the passage which we have cited from the letter. That submission ignores the reference in that letter, and in previous correspondence to "the interests of justice". Mr Devonshire submits that to say that a postponement was not "in the interests of justice" is a conclusion and not an explanation of why it was not "in the interests of justice". We take the view that it is impossible to characterise what is contained in the letter which we have cited as an error of law. It is inconceivable that the Tribunal did not undertake the balancing exercise that has to be undertaken, when considering whether or not to accede to a request of this type
11. The only other grounds upon which Mr Devonshire could succeed was if he was able to show that the decision not to postpone was a perverse decision, one which no reasonable Tribunal could reach. We are unanimously of the view that he cannot show that, and therefore this appeal fails.