United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ALAN PAYNE (of Counsel) Instructed By: Messrs Steven Bonfield Solicitors Prospect House 18 Clare Road Halifax HX1 2HX
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE J McMULLEN QC:

1. This is an interim appeal, on behalf of the Respondent, in proceedings due to be heard on 4 June 2003 before a Leeds Tribunal. The Applicant in the proceedings issued an Originating Application on 13 February 2003, alleging unfair dismissal and sex discrimination. A Notice of Appearance was filed and on 28 March a Notice of Hearing was indicated to take place on 15 May.
2. On 31 March the Respondent's representative informed the Tribunal that there was a clash of cases and 15 May ought to be vacated; it was. Another application was properly made in behalf of the Respondent to try and set aside the date of 4 June, which was subsequently notified to the parties. This is because a key witness, Mr McShane, will be unable to attend.
3. By a letter from the Regional Office of the Tribunal the request was refused. Obviously, the Chairman decided the matter in accordance with the overriding objective of Regulation 10(1) of the Rules of Procedure. Thus it is that the matter is put before me under Section 28(4) of the Employment Tribunals Act 1996, ie Judge alone.
4. The circumstances have changed somewhat since the appeal against the Chairman's decision was launched. Put before me, not available to the Chairman, is correspondence from the Applicant's side, indicating that she does not resist the appeal and has caused an application to be made herself to the Tribunal, seeking an alternate date. Thus, there is unanimity between the parties that the hearing cannot fairly go ahead on 4 June. In those circumstances, it would require very compelling reasons for this case to be driven forward.
5. I have carefully read the submissions made on behalf of the Respondent, by Mr Alan Payne, citing to me English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, at 2416, where fairness and justice require a properly reasoned decision and Teinaz v Wandsworth London Borough Council [2002] ICR 1471, at 1479, per Peter Gibson LJ, indicated how important it is to allow postponements where otherwise unfairness and injustice would occur.
6. It seems to me that a decision in relation to a postponement does not require elaborate reasons. It is properly to be regarded as case management and is noted as an exception to the normal rule in English itself.
7. It also seems to me that a refusal to review the matter is within the discretion of a Chairman. An Order is not a decision which is capable of being reviewed but only appealed.
8. In considering the overriding objective of dealing with the matter fairly and expeditiously, the Tribunal Chairman should have had regard to the following matters, as submitted in paragraph 9 of the Skeleton Argument, produced before me today, as follows:

"(i) the unavailable witness was crucial to the Appellant's case;

(ii) his absence would effectively deny the Appellant a chance of a fair hearing;

(iii) a decision to proceed with the hearing in his absence would amount to an interference with the Applicant's rights under Article 6 of ECHR;

(iv) the Applicant had acted promptly (within 4 working days of receipt of the notice of hearing) to postpone after the reason had become known to them;

(v) the application was being made 7 weeks prior to the hearing date;

(vi) the previous postponement had resulted in a marginal delay (18 days) of a claim issued in February 2003 and there was no reason why a further adjournment of a one day hearing would result in significant delay and/or prejudice;

(vii) this was not a case with long delays and postponements;

(viii) there was no objection from the Respondent."

9. I would be loathe to interfere with the exercise of discretion, but it does seem to me that the Chairman may not have borne in mind the judgment of the Court of Appeal in Teinaz and, certainly, the Chairman did not have the advantage which I have of seeing the joint approach of the parties to a postponement.
10. I could take the simple approach of indicating that an unopposed appeal has been argued before me, and there appeared to be a proper basis for allowing it. Yet a point of substance has been made about the unavailability of the primary witness for the Respondent and that may not have had the attention which it should have had, in the light of Teinaz, and so I will allow the appeal, and set aside the decision of the Chairman to order the matter to be heard on 4 June. A new date will be set when all parties give new dates to the Tribunal which they should do within three days of the sealed date of this Order.