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


 


MR JUSTICE LINDSAY (PRESIDENT)

1. This is an Interlocutory Appeal of ECeurope.Com.Limited in the matter between Mr Bosredon and that company. It is concerned with the adjournment of a case fixed to be heard on 27 April, in other words, on Friday of this week, this being Tuesday. Neither side attends before us today, but we do have a full Notice of Appeal from solicitors for the Appellant, ECeurope.Com.Limited, and also a letter from the solicitors to the Respondent, Mr Bosredon, which indicates, if not that they are content that the appeal should be allowed, at least that they are indifferent as to whether it is not.
2. The Notice of Appeal sets out the background to the matter. It begins at paragraph 5(a):

"5(a) The Originating Application was received and stamped by the tribunal on 23 February 2001. The Notice of Appearance was then submitted on 16 March 2001. On 30 March 2001 the Tribunal wrote to the parties listing the case for hearing on 27 April 2001 (Annexe 1)"

3. The IT1 is for constructive dismissal, breach of contract and wrongful deduction of wages. The IT3 asserts that there was no dismissal and no breach of contract and a detailed defence is asserted by the company over some two and three quarter pages of close typing.
4. To continue with the Notice of Appeal, at 5(c) it reads as follows:

"5(c) …….No pre-listing letter was sent to the parties. Therefore, in advance of listing the case for hearing the parties were not told when it was proposed to deal with the listing of their case. Nor were the parties asked to give their estimate of the time to be taken by the hearing. Nor were the parties asked which days in a specified period they would be able to attend with their representatives and their witnesses."

A little later the Notice of Appeal quotes part of the Notice of Hearing which is given to the parties in standard form of any particular hearing and it reads as follows:

"5 (e) "unless there are wholly exceptional circumstances, no application for a postponement due to non-availability of witnesses or for other reasons will be granted if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date for hearings of up to one day."

We shall have to come back to the Notice of Hearing .

5. The Notice of Appeal says, and there is no reason to doubt it, as follows:

"Those representing the Appellant sent a fax to the tribunal dated 6 April but actually sent on 9 April (well within the 14 day time limit) requesting a postponement and setting out the information requested. (Annexe 2)"

The letter or fax which is dated 6 April, albeit not sent until 9 April, says this, from Messrs Field Fisher Waterhouse, acting for the company, as follows:

"We write further to the Notice of Hearing listing this case for Friday 27 April at 10.00 am.

We intend to call three witnesses. Unfortunately one of those witnesses is due to return from Australia on a fixed ticket on that day and would therefore be unable to attend at the hearing. There is no one else who can give the evidence that this witness is required to give. Please also note that the solicitor who has been advising in this matter and who will both prepare and present the case at the Tribunal has a prepaid and pre-booked overseas holiday from 16 April to 27 April (inclusive).

In the circumstances, we request an adjournment. Should the Tribunal be minded to grant this adjournment then we ask that the following dates be avoided when the case is relisted."

And then six working days which Field Fisher Waterhouse cannot manage in May are then specified: nine days which they cannot do in June, and five days they cannot do in July; there are no days that they could not do in August and there were five days they could not do in September.

6. The Notice of Appeal continues, at sub-paragraph (f):

"Those representing the Appellant wrote to those representing the applicant to notify them of the postponement request. Those representing the applicant wrote back to confirm their agreement to the postponement request and that they would write to the tribunal to confirm this."

And, indeed, they did, because we have the letter from Witham Weld, solicitors acting for Mr Bosredon, that said to Field Fisher Waterhouse, with a copy to the Employment Tribunal:

"Thank you for your fax today seeking an adjournment of the hearing fixed for the 27^th April 2001.

We have now telephoned the Employment Tribunal and left a message on their voice mail consenting to your request on behalf of the applicant.

We are writing to you by post today with the applicant's list of documents and look forward to receiving the respondent's bundle by return."

So it is plain that, as at 11 April, the documentary side of the case was not yet complete.

7. To return to the Notice of Appeal, which sets out, as we have mentioned, the chronology of the matter, at sub-paragraph (g) it says:

"Having heard nothing from the tribunal by 12 April, those representing the Appellant telephoned the tribunal and were told that the application was before a Chairman. A subsequent telephone message from the tribunal explained that the application had been refused."

Notice that at this stage no reason for the refusal seems to have been given and no identification of any particular shortcoming in the information which the company had supplied or seems to have been explained by the Tribunal and there was nothing in writing at all, at this stage, either. Going on with the Notice of Appeal, it continues:

"(g)………..Those representing the Appellant immediately faxed the tribunal asking for the matter to be reconsidered (Annexe 3) and later telephoned again only to be told that the application had again been refused. The reasons given verbally were unclear in relation to the non-availability of one of the Appellant's witnesses and that a postponement would not be granted for the non-availability of a representative."

And that is borne out by Field Fisher Waterhouse's fax to Ms Scarrow of the Employment Tribunal of 12 April which reads:

"I understand that you have telephoned and left a message that my request for an adjournment for this case has been refused. This is both extremely disappointing and extremely surprising and I respectfully request that a chairman reconsider the request. In doing so I would like to summarise the request as follows:

this is a first request for a postponement;

the Applicant has written to the Tribunal to consent to the request;

the Respondent has only three witnesses, one of whom is unable to attend because he will be out of the country on the day of the hearing and his evidence cannot be given by any other witness.

today is my last day before a two week holiday. I will therefore be away over the period when the case is listed. This holiday was booked and paid for before the case was listed. I have had conduct of this case since the beginning and am responsible for both preparation and representation. This situation is therefore different from the unavailability of Counsel.

My client's ability to defend this claim is likely to be damaged if it is forced to appear with only two out of three witnesses. My client will also have to incur additional costs in handing over conduct of the case to another representative. Whilst it is in everyone's interests for cases to be listed quickly this must also be balanced against an overriding consideration to deal with cases justly. Since the Applicant has consented to the adjournment I respectfully submit that the balance of justice is heavily in favour of granting this first request for postponement.

If the chairman has any questions I am more than happy to deal with these. In view of the fact that today is my last day in the office, I would be extremely grateful if this matter could be dealt with today and if you could telephone me with the chairman's response. If the adjournment is refused, I ask that the chairman provide written reasons for that refusal."

8. Going back to the Notice of Appeal, at paragraph 6, it continues:

"6. The grounds upon which this appeal is brought are that the employment tribunal chairman erred in law in that his or her decision to refuse to grant an adjournment was perverse in view of the following circumstances:

(a) The date upon which the case has been listed was not fixed by agreement with or after consulting the parties

(b) The applicant consents to the postponement.

(c) This was a first request for a postponement.

(d) One of the three witnesses that the Appellant wishes to call is unavailable on the date of the hearing due to an overseas holiday. No other person can give the evidence which that witness will give.

(c) The unavailability of a representative may be a good reason for granting a postponement and should not be disregarded."

And then that is further explained, and part of the further explanation is:

"In this case however, the solicitor who is preparing the case intended also to present it. He is not so easily replaced especially where there are only 8 working days before the hearing. The Appellant has already incurred wasted costs in finding a substitute solicitor to handle the case and in arranging that handover. Indeed, the solicitor who was dealing with the case is having to work on a bank holiday to make this application and prepare handover notes. Further wasted costs will be incurred next week when the Appellant meets the substitute solicitor to run through issues for a second time."

9. Then two letters came forward from the Employment Tribunal, by fax, on 17 April. Dealing with the one that deals with the earlier letter of 6 April from Field Fisher Waterhouse, it says this:

"1. I refer to your letter of 6 April 2001 in which you requested a postponement of the hearing in this case.

2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

3. The Chairman refuses your request for the following reason(s):

(1) You have not stated:

(a) the name of the witness
(b) what the witness can give evidence about
(c) how that evidence is relevant to the issue(s).

Have you considered whether some other witness can give the necessary evidence?"

- that last point being a slightly strange matter because, as I have already read, the fax of 12 April 2001 expressly stated, not for the first time, that the prospectively missing witness's evidence could not be given by any other witness. The fax of 17 April continues, from the Employment Tribunal :

"(2) It is noted that your opponent consents to the postponement, but ultimately a postponement is a matter for the Chairman's discretion exercised in the interests of justice."

The other fax of 17 April from the Employment Tribunal says:

"1. I refer to your letter of 12 April 2001 in which you renewed your request for a postponement of the hearing in this case.

2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

3. The Chairman refuses your request for the following reason(s):

(1) The information regarding the witness has not been supplied.

(2) If a particular advocate wishes to represent a party he must advise the Tribunal of his availability at the earliest stages."

10. It is to be noted that the identification of the information which the Tribunal regarded as lacking was given in the first letter we have quoted of 17 April. It was on that very same day by a fax that it was complained that:

"The information regarding the witness has not been supplied."

which seems slightly unfair, to put it no higher. No authority is given for the proposition that if a particular advocate wishes to represent a party it must advise the Tribunal of his availability at the earliest stages, although, obviously, that it is good sense. But Messrs Field Fisher Waterhouse had advised the Tribunal earlier of their unavailability without undue delay after being told of the date that had been fixed. They had not previously been given any indication of the broad parameters of the period during which a hearing MIGHT be offered, which would, doubtless, depend in part on the estimated length of the hearing, as to which the Tribunal had made no request.

11. Possible issues as to perversity arise against the background that we have explained, and also as to Article 6 in Schedule 1 of the Human Rights Act 1998. "A hearing is to be fair and within a reasonable time." It must be arguable that a time can be unreasonably early, or be fixed unreasonably, as well as being, as is commonly complained of, unreasonably late. Moreover, whilst expressly in Article 6 the Human Rights are defined to include rights as to defending oneself by legal assistance of one's own choosing and as to the attendance of witnesses on one's own behalf, but are described as minimum rights related only to persons charged with criminal offences, it is, at lowest, arguable that such minimum rights are also part of the concept of a "fair trial", which expressly relates to the determination of civil rights and obligations as well. So there is a possibility of a Human Rights argument arising in this case.
12. But there is a preliminary point which concerns us which arises out of Rule 5(1) of the Employment Tribunal Rules:

"5 Time and place of hearing

(1) The President or a Regional Chairman shall fix the date, time and place of the originating application and the Secretary shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents, representation by another person and the making of written representations."

Rule 13(9) says:

"Any act required or authorised by rules 3(4)…..13(7) and 15 to be done by a chairman may be done by a tribunal or on the direction of a chairman."

And 10 says:

"Any function of the Secretary may be performed by a Regional Secretary or by a person acting with the authority of the Secretary or of a Regional Secretary."

13. The Notice of 30 March does not indicate and therefore we must raise the question of whether the date or time or place was fixed by the President or by a Regional Chairman or by someone duly authorised on his or her behalf. Unless that can be shown to be the case, we cannot be sure that the Notice of Hearing is one that complies with Rule 5(1). If, of course, it does not, then for want of compliance with Rule 5 there cannot properly be a hearing on the date it purports to prescribe: namely 27 April, at any rate without the consent of the parties, which is lacking. As we shall mention, this, unusually, is not a case in which it can simply be assumed that what should have been done was done.
14. That is one point on the Notice of Hearing, but it manifestly was not sent by the Secretary; it is signed "pp" and then there is name which cannot be read but which plainly is not that of Alan Westley. Underneath the signature it says: "Mr Alan Westley, for Regional Secretary of the Tribunals, dated 30 March 2001". So it is not, on the face of things, signed by a delegate of the Regional Secretary because that, on the face of things, would seem to be Mr Alan Westley, but at best it was signed by a delegate of a delegate of the Regional Secretary of the Tribunals, someone, perhaps, to whom Mr Westley had delegated the task. But (although one is now not encouraged to use Latin) one has to bear in mind the principle "Delegatus non potest delegare" - a delegate cannot himself delegate. Unless the signatory was directly authorised to send the document by the Secretary or by the Regional Secretary, which does not appear to be the case, the Notice of Hearing would seem, on its face, not to comply with Rule 5. Was the signatory authorised to send the document?
15. Given this apparent error, we cannot simply assume that all has been done that should have been done, or, to use yet another maxim which is not now permitted; "Omnia acta esse rite praesumunta". We need to adjourn the appeal to find out whether, contrary to its face, the Notice of Hearing did indeed comply with Rule 5.
16. In the circumstances we must do as follows: first of all, the Employment Tribunal must, even at this hour, three minutes past four in the afternoon, be telephoned by our associate at the Employment Appeal Tribunal, as soon as is practicable after we have arisen, to be told that the hearing for 27 April must be vacated and that the reasons for its vacation will be sent on to the Employment Tribunal as soon as is possible, when this judgment has been transcribed. Secondly, both firms of solicitors engaged in the case must be told that also. Thirdly, the Employment Appeal Tribunal will put in hand the transcription of this judgment. It is very unlikely that it will be able to be completed until some time late on Thursday, at the earliest, which is one of the reasons why the hearing of 27 April will have to be adjourned.
17. If either party wishes to restore the appeal for further hearing, we will need to be given the information as to due compliance or not with Employment Tribunal Rule 5 which we have identified and for that purpose one or other or both of the parties will, if the appeal is to be restored, need to ask the Tribunal for the answers to the questions that we have raised.
18. For the moment, we simply adjourn the appeal generally, with liberty to restore. If it transpires, as is not improbable, that the appeal is abandoned, then the party abandoning the appeal, namely ECeurope.Com. Limited, should write to the Employment Appeal Tribunal and to the Employment Tribunal to indicate that that is the case. The Employment Tribunal will then need to consider whether, when it comes to re-appointing a new date for the hearing of the case, whether the original Notice of Hearing of 30 March is defective in either of the ways that we have indicated (in which case it will presumably need to serve a fresh Notice of Hearing, properly framed) or if its enquiries establish that it was, indeed, the President or a Regional Chairman who fixed the date for the hearing originally, or that that was done by someone duly authorised on his or her behalf and that the 30 March Notice was, indeed, properly sent out, or whether it suffices simply to write a less formal Notice, indicating the fresh hearing date. That we leave to the Employment Tribunal.
19. To revert simply to what we are doing immediately today, apart from inviting the associate, immediately, to telephone the Employment Tribunal in the manner that we have indicated, requiring the hearing of 27 April to be vacated, we simply adjourn the appeal generally, with liberty to restore.