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


 


HIS HONOUR JUDGE D SEROTA QC

1. This is an appeal by the employer, to which I shall refer as 'Electrotec' against the decision of an Employment Tribunal in Southampton (Chairman D.N Cowling Esq sitting alone). Mr Cowling refused to grant an adjournment of a hearing to dispose of the application, fixed for 25^th February 2004. I gave permission to appeal and fixed the hearing for today, 24^th February, so that the appeal might be heard before the date fixed for hearing in the Employment Tribunal.
2. The Applicant ('Mr. Alderslade') presented his IT1 on 25^th November 2003. He had been employed for rather less than 3 months by Electrotec. He claims to have been dismissed because he had asserted the right to take his annual leave. Dismissal for assertion of such a right is, of course, automatically unfair. There are claims for compensation, including damages for breach of contract, (unpaid wages), and unpaid expenses and bonus.
3. Electrotec in its IT3 dated 9^th December 2003 denies any breach of contract and asserts that Mr Alderslade was not dismissed because he had asserted a right to his statutory holiday entitlement. Rather, Mr. Alderslade had told Mr Edward McCann (a director) that he would be leaving the job and buying a van to work on his own. He was ultimately dismissed on grounds of capability. There is a counterclaim against Mr Alderslade for damage caused by him when reversing a van.
4. On 14^th January The Employment Tribunal gave directions and fixed the hearing (listed for 1 day to include remedy if appropriate) for 25^th February. The parties were notified that

'Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds…….'

5. On 16th January Mr McCann wrote a long letter to the Employment Tribunal. He referred to a letter from the Tribunal that I have not seen. He notified the Employment Tribunal the he was 'in the main working away from home' and usually only saw correspondence on a Sunday. It appears to me that when this letter was written he had not received the directions order of 14^th January. He raised a number of issues as to the perceived demerits in Mr. Alderslade's case. He informed the Employment Tribunal that he was in a position to call a number of witnesses to refute Mr Alderslade's allegations and to support Electrotec's case. He asked that a preliminary hearing be arranged and a bond set for Mr. Alderslade. He concluded;

'I would like to request that as much of my time is spent working away and witness statement may need to be prepared, that a time consideration will be taken into account when setting a date'

6. The Employment Tribunal replied in two letters dated 29^th January. The first related to procedural matters. And in the second Ms Higgins informed Mr. McCann that Mr Cowling refused the request for a pre-hearing review Mr McCann was in telephone contact with the Employment Tribunal as is apparent from his letter to Mrs Higgins at the Regional Office 31^st January. In this letter, which was copied to Messrs Warner Goodman and Streat, Mr Alderslade's solicitors, he asked for a 'stay' of the hearing currently set for 25^th February 2004. He continued

As mentioned in my letter of 16^th January, most of my company's work is away from home and our engineers usually leave home on a Monday morning and do not return until Friday evening. With this in mind, it would be most helpful if the Tribunal day be set for a Monday which would then not disrupt our whole week too severely. It would also help to partially relieve the loss of bonuses for the employees and sub contractors I shall be calling as witnesses. As we are now planning our work schedule into March your early reply would be appreciated.'

No reply was received to this letter.

7. I assume, however, that it was copied by the Tribunal to Messrs Warner Goodman and Streat because that firm responded to a letter from the Tribunal I have not seen dated 4^th February. They objected to an adjournment on the basis that application should have been made within 14 days of the order for directions of 14^th January and because

'Our client has recently commenced new employment and has already made arrangements for the day off work for the hearing on 25^th February 2004'

8. On 10^th February Mr McCann had received the letter from Messrs Warner Goodman and Streat. He again requested a stay. He suggests that they are being deliberately unhelpful and unreasonable. He stresses that he is appearing without a solicitor. He mentions that one of his witnesses is currently in Japan and will not be returning until 16^th February so he has not been able to contact him.
9. On 10^th February Ms D Higgins (on behalf of the Regional Secretary) wrote to inform Mr McCann that his application for an adjournment had been refused in the following terms.

'A Chairman of Tribunal, Mr D.N. Cowling, has refused your request for a postponement. The hearing stands as arranged'.

No reasons are given at all. I feel bound to say that good practice requires some reasons, however brief, to be given when a request for an adjournment is allowed or refused.

10. Mr McCann, in a letter that accompanied his notice of appeal (dated 10^th February) complains that the fact he worked away from home and ran a small business was not given adequate consideration and that despite 2 requests for an adjournment he had been given no reasons on the one occasion when his request was considered. He then informs the EAT that he has discovered that Mr Alderslade has made a similar application in the past, which he infers was without merit. He had just had contact with a Mr Kimber who would be in a position to confirm that Mr Alderslade had lied when interviewed by Mr McCann for his job with Electrotec, when asked about his previous employment history. Mr Kimber was unavailable to give evidence on 25^th February, as Mr Kimber has himself now confirmed to the EAT. Mr McCann makes the point that Mr Alderslade should have little difficulty, if the hearing is adjourned, in obtaining a later date as leave. In his letter of 19^th February he suggests that Mr Alderslade is now self employed.
11. I should also note that on 11^th February after discussions with Miss Higgins, Mr McCann applied for a Witness Order to secure the attendance of Mr Kimber. A Witness Order was issued but apparently Mr Kimber is unable to attend and has written to the Tribunal to that effect. Mr McCann made clear to the Tribunal in his letter of 11^th February that Mr. Kimber could not attend on 25^th February and asked that this point be considered with his application for an adjournment.
12. It has been agreed that I should deal with this matter on the basis of written submissions. I have been referred to the correspondence and documents I have mentioned and to letters from Mr Edward McCann who represents Electrotec, dated 10^th and 19^th February, and to an answer from Messrs Warner Goodman and Streat received on 19^th February.
13. Mr McCann suggests in his letter of 19^th February to the EAT that he intends (or wishes) to call 5 witnesses in addition to himself.
14. Mr Alderslade in his Answer maintains that the Tribunal exercised its discretion fairly. He repeats the points made in the letter of 6^th February from his solicitors and states that

'Due to the close proximity of the hearing it would be unreasonable for the Respondent to re-arrange this date with his new employers. The Respondent is affected by stress and anxiety given the pending Tribunal proceedings and wishes to have the matter dealt with at the Tribunal's earliest convenience'.

15. I have considered all the matters raised by both parties. There are grounds shown by Electrotec that would justify the Tribunal exercising its discretion in favour of granting an adjournment and grounds shown by Mr Alderslade that would justify a refusal. Unfortunately as I have already said, the Tribunal has given no reasons whatever and neither I nor the parties know on what basis the discretion has been exercised, if exercised at all. I cannot accept that the Tribunal exercised its discretion fairly (as suggested by Mr Alderslade) because I simply do not know how it was exercised. I am not prepared to deal with this matter on the basis that the discretion could have been exercised on the facts in favour of an adjournment; as such an approach places a premium on a Tribunal not giving reasons for its decisions. If such an approach were to be followed, then in effect a decision for which no reasons are given could be justified on grounds not in fact relied upon by the Tribunal but capable of being relied upon. Such a decision would be more difficult to overturn than one for which reasons had been given.
16. I cannot be satisfied that the Employment Tribunal took all relevant matters into account, in particular the position of Mr Kimber, because I do not know the reasons on which its decision was based. I have to consider what order to make in the circumstances.
17. I take into account the points made by the parties which I have mentioned above. I also have regard to the following in arriving at my decision.

a. I do not think much of the point that Mr D McCann was in Japan until 16^th February. He is available to give evidence and to have been interviewed.

b. I also do not think the fact that Mr Alderslade has arranged with his new employer to take tomorrow off is a reason in itself for refusing to adjourn.

c. I do consider that Mr McCann was somewhat late in seeking an adjournment and should have done so promptly when he received the order of 14^th January.

d. I have regard to the overriding objective and the need to deal with cases justly. I must bear in mind in this regard the expense to the parties and to the public that will be caused by an adjournment and the effect on other parties to proceedings in the Tribunal.

e. It should be possible to accommodate both the hearing tomorrow and the taking of Mr Kimber's evidence at a later date.

f. I regard the points at (c) (d) and (e) as outweighing any inconvenience caused to Mr McCann and his witnesses by maintaining the existing date for hearing the application.

18. In the circumstances I would not permit the entire claim to be adjourned. However, I would direct that the case proceeds as far as possible tomorrow. I note that even without Mr Kimber there are likely to be at least 5 witnesses including Mr Edward McCann and Mr Alderslade. These witnesses may well take most of the day. Mr Kimber's evidence (and that of any other witness at the discretion of the Tribunal) are to be taken on another day to be fixed in consultation with the parties, provided that Mr McCann provides to Mr Alderslade and the Employment Tribunal by 10.00 a.m tomorrow 25th February a witness statement of Mr Kimber or a synopsis of the evidence he will give.