United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK:

1. The appellant, Mr Fielding, was a senior employee of the Respondent Financial Services company from 1 August 1995 until his resignation effective on 7 July 2000.
2. The circumstances of his resignation are in dispute. He contends that he left to pursue his own business interests with the blessing of his employers; they say that he sought to poach their employees for his new venture, leading him to resign in circumstances where they would otherwise have been entitled to dismiss him for gross misconduct.
3. We note that the respondents commenced County Court proceedings designed to enforce certain restrictive covenants contained in his contract of employment. Those proceedings were compromised by a Consent Order dated 7 November 2000, under which the appellant gave undertakings in the terms of those restrictive covenants and paid the respondents' costs in the agreed sum of £3,300.
4. Meanwhile, on 3 October 2000 he presented an originating application to the Bury St Edmunds Employment Tribunal complaining of breach of contract, wrongful (but not unfair) dismissal; and unlawful deductions from wages. In summary, he seeks to recover pay in lieu of notice; various bonus payments and other pension and insurance benefits.
5. The claim is resisted. The respondents say that in the circumstances he is not entitled to any payment, but if he is, the calculation of bonus payments owing, if any, is complicated by their claw-back provisions.
6. It is also worth observing that for the purposes both of these proceedings and the County Court proceedings the appellant was represented by local solicitors, Messrs Gross & Co.
7. The substantive Employment Tribunal hearing was originally fixed for 15 January 2001, but that was then adjourned due to the unavailability of a chairman. We understand that shortly thereafter a directions hearing was held, at which it was directed that the wrongful dismissal claim should be heard first and, on a subsequent date, the various bonus claims. The wrongful dismissal hearing was re-listed by a notice dated 25 January for hearing on 15 March, that is tomorrow.
8. On 9 March the appellant faxed the tribunal applying for a postponement of the hearing fixed for 15 March. He gave as his reasons:

1. The withdrawal of his solicitors, Gross & Co, requiring him to find alternative legal representation.

2. His understanding from an ACAS officer that the respondents would be proposing a settlement of the case.

3. The respondents' failure to lodge a counter-schedule to his detailed claim.

9. That application was refused by a chairman, Mr B.G. Mitchell, by letter dated 9 March. On 12 March the appellant renewed his application. On the same day the chairman repeated his earlier refusal. His reasons for doing so were given as follows:

"This case was fixed originally for 15 January but postponed because of pressure of other cases. It was re-listed on 25 January for 15/3/01. On 7/3/01 the Applicant's solicitors wrote to say that they could not get hold of him to get instructions. On 9/3/01 the Applicant sought a postponement on the basis that he wanted to instruct a different solicitor. The Respondent objects. It is not satisfactory to seek to change solicitors 2 months after the listed hearing and 6 days before the adjourned date."

10. Accordingly, the application for postponement was refused. Against that interlocutory order the appellant now appeals. He appears before us today and advances the appeal on two levels. First, he has put before us a skeleton argument prepared by his current legal advisers. Secondly, he has advanced his case on the basis of what he sees as the justice of the position.
11. We remind ourselves that we do not have a general power of review over interlocutory orders made by the Employment Tribunal or a chairman alone. That approach, to be found in British Library v Palyza [1984] ICR 504 (EAT Nolan J) was not followed in the later case of Medallion Holidays Ltd v Birch [1985] ICR 578 (EAT Waite J) and was disapproved by the Court of Appeal in Ashmore v British Coal Corporation [1990] IRLR 283. Instead we must first discern an error of law in the chairman's approach before we can interfere. In practice, that means finding perversity in the wide exercise of the chairman's discretion under rule 13(7) of the Employment Tribunals Rules of Procedure: see Bastick v James Lane [1979] ICR 778, approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908. As we understand the skeleton argument submitted on behalf of the appellant that principle is not disputed on his behalf.
12. Perversity, in the Wednesbury sense, involves a finding that the chairman failed to take into account relevant factors; took into account irrelevant factors, or otherwise reached a conclusion which no reasonable chairman, properly directing himself as to the law, could reach: see Bastick.
13. Dealing first with the arguments raised in the skeleton argument, it seems to us that there are two. First it is submitted that the chairman, Mr Mitchell, failed to take account of the fact that ACAS were attempting to negotiate a settlement with Beckett.
14. Pausing there, we are not satisfied that the chairman disregarded that matter, which was raised in the original application for a postponement made by Mr Fielding, but we wonder how material it is.
15. Parties are encouraged to settle their differences and avoid a determination by the tribunal. However, whilst negotiations are going on it is the duty of parties to prepare themselves for the worst, that is a contested hearing before the tribunal. Furthermore, this is not a case in which both parties have approached the tribunal for a postponement on the basis that a settlement is imminent. On the contrary, from the material that we have seen the parties still appear to be some way apart.
16. We would therefore reject that first ground of appeal. Secondly, it is submitted that the interests of justice demand that Mr Fielding should be legally represented at the tribunal in order to ensure that he receives a fair and public hearing, guaranteed to him by Article 6 of the European Convention on Human Rights, now incorporated into English law by the Human Rights Act 1998. Reference was made to the European Court decision in Airey v Ireland [1979 – 80] 2 EHRR 305.
17. It seems to us that Mr Fielding lost confidence in his former solicitors, at the latest a little over three weeks ago. Instead of then instructing new solicitors in a case which he himself describes as complex, so as to give them an opportunity to master the detail of the case and to represent him on 15 March, he hoped that a settlement might be achieved. Consequently, he forbore running up the costs of instructing new solicitors and has simply taken advice, essentially this week from his new solicitors, in order to assist him in this appeal. In our judgment he is not deprived of legal representation at the tribunal hearing but has put himself into a position where he does not have it in place. Accordingly, we reject both grounds advanced in the skeleton argument.
18. Turning then to the submissions made by Mr Fielding, he contends that having already spent some £13,000 on solicitors, feeling that he has not had proper representation, that it would be unjust to expect him to incur yet further costs, particularly in circumstances where he believed there was a real prospect of a settlement which would obviate the need for a tribunal hearing. He also points to the fact that he was ready and available for the hearing fixed for 15 January and through no fault of his own that was adjourned.
19. These are all matters to be canvassed before an Employment Tribunal chairman in support of an application for an adjournment. They were and on balance the chairman decided that the interests of justice required the matter to go ahead, the respondents being anxious to get on with the proceedings. In our judgment it cannot be said that such a conclusion is perverse or in any other way legally flawed. It follows, in the absence of any error of law, that we must dismiss this appeal.