Oxford & Swindon Co-Op Society Ltd v Chambers [1992] UKEAT 502_92_3107

EAT
Oxford & Swindon Co-Op Society Ltd v Chambers
[1992] UKEAT 502_92_3107 · 1992-07-31
MR JUSTICE WOOD (PRESIDENT): This is an appeal by the Oxford & Swindon Co-operative Society Ltd against a refusal by a Chairman at Reading to adjourn the hearing of an application by a Mrs Chambers in which she alleged unfair dismissal; failure to honour maternity rights; and claims for wages. The very fact that those three matters are raised would indicate that it is a matter which may have some complications, more especially in the light of the recent decisions in the European Court of Justice and the Court of Appeal and indeed a case we await at the moment from the House of Lords in Webb .This is the second appeal within 24 hours from a decision of a Chairman sitting at Reading. We gave a judgment yesterday at about 4 o'clock, which has not yet been transcribed in which our comments might well be described as stringent.The chronology is as follows. On the 11th February 1992 the Originating Application was filed. On the 28th February the Notice of Appearance was filed. On the 3rd March a notice was sent nominating a day, there was also a request for Further and Better Particulars which was dealt with within the week. At that stage the Respondent to the application, the employers, were not represented. Although it is a large firm it had had very little experience of this jurisdiction and in each of the cases which had arisen, through the services of ACAS, there had been an agreed solution. It became apparent to the Company in the early part of June that this matter was more complicated than might have seemed at first sight and they approached the Co-operative Employers' Federation who have a Legal Department of three lawyers who are prepared to represent companies who are members of that Federation. When they were so approached the gentleman, Mr Bell, who was to deal with this case, appreciated that on the day fixed, the 6th August, he would be involved in a case fixed at Sheffield for two days, a colleague was involved in Scotland and the third member of the team was away, and would be away, ill. He therefore wrote on the 18th June indicating that he had been asked to represent the Company saying that he was therefore applying at once for the 6th August date to be vacated and ending his letter"I apologise for any inconvenience this may cause".A reply was sent on the 25th June refusing his application. On the 1st July he wrote asking for a review and he set out in a most courteous and explicit way the problems he was facing emphasising that the Respondents were entitled to professional advice, that they wished to be represented, there are no particular time limits and indeed he emphasised that there were cases where applications had been made far nearer the date of trial for change of representation where there had been no problems about adjournment.A reply came back of the 8th July. That reply emphasised the contents of the note of the letter nominating 6th August as the trial date and emphasising that it contained the following words:
"`Unless there are exceptional circumstances, no application for postponement will be entertained if received more than 14 days after the date hereof. Any such application must be in writing and state the full grounds.'"
Having referred to that the Secretary at Reading then added the following paragraph:
"Should a party despite that express warning delay seeking advice he cannot complain later save in exceptional circumstances. There is nothing exceptional outlined in your letter. The respondents predicament is caused entirely by their own default. Further, there is plenty of time to instruct others."
One would merely pause there, it is difficult to see on the facts that we now know that there was any culpability on the part of the Company, and as for plenty of time to instruct others, the representation through the Federation would have been free, because of their membership. If they had to instruct others they would have incurred the cost of a solicitor and possibly, we do not know, of Counsel. However, the point taken by Miss Woodward, which in our judgment is a good point, is that the phraseology in that notice is one which fetters the discretion of the Tribunal and it is wrong in law to fetter a general discretion.We can hear some saying, what are we to do? The Industrial Tribunals are simply being drowned in the pressure of work, that everyone knows, we face the same situation here, but it seems to us that the notice could be phrased in a way which did not fetter the discretion to treat each application on its merits and to do justice, that which is fair, just and reasonable between the parties. For instance, it might have run something like this:
"As you must know the pressure of work at industrial tribunals is very severe, hundreds of parties await the opportunity to have their cases heard and every date vacated deprives someone of that opportunity. We must therefore ask you to notify us within 28 days of the date of this letter if the date fixed above is inconvenient. Unless you do so we will assume that it is convenient both for you and for your witnesses. You must realise that as the date fixed for hearing draws closer so it will become more difficult for an application to vacate that date to succeed because the inconvenience and prejudice to others is likely to have been increased. Please therefore consider the suggested date now and consider the relevant facts which you must bear in mind."
Something of that nature would have been perfectly proper, it would have explained the situation and it would not fetter the discretion of an industrial tribunal to do what was fair on an application.However, in this case there was a further application in a letter of the 10th July and in that Mr Bell referred to two or three cases and dealt with the question of "being plenty of time to instruct others" and elaborated on the reasons for his request.On the 14th July there was a further refusal.On the 20th July Mr Bell asked for a review. That clearly was inappropriate and he received a letter of the 21st July saying:
"There is no misunderstanding. The Chairman has refused to postpone the hearing;......
The Chairman does not propose to enter into further correspondence in the matter."As we have already indicated, in our judgment, there was an error of law in that the learned Chairman fettered the discretion to consider the application on its merits and added an ingredient which was not within the rules and not within the overall discretion.We therefore are in a position to decide what we might ourselves have done under paragraph 21(1) of the 11th Schedule of the 1978 Act, we have no doubt whatsoever that the appropriate Order here is that the date should be vacated. The application was made some two months before the date, the question of representation is always important, the attitude of those making the application has been reason itself and reasonableness itself, and it is the view of those sitting with me, which I endorse, that there is only one answer to the application to adjourn in this case and that is that the date should be vacated. It is therefore vacated for a date to be fixed which is convenient to the parties.We have received a document from the Respondents to this appeal saying they objected and we have taken that into account.The appeal will therefore be allowed and that Order will be substituted.