Employment Service v Nathan [1995] UKEAT 1316_95_2012

EAT

Employment Service v Nathan

[1995] UKEAT 1316_95_2012 · 1995-12-20

JUDGE CLARK:

This is an appeal by the employer against an interlocutory order made by the Regional Chairman at the London (South) Industrial Tribunal by letter dated 15 December 1995 refusing applications by both parties for postponement of a hearing date fixed for 2 and 3 January 1996 by a notice of hearing sent out on 27 November 1995.

The standard form hearing notice states at paragraph 2:

"2. 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 is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds."

The letter from the Applicant's representative, Mr Lloyd of the CPSA, dated 8 December 1995, requesting a postponement, reads:

"I shall be on leave that particular week and outside of the London area. I would request that the hearing is rescheduled for March onwards since between late January and early February I shall be absent from work on paternity leave."

The letter from the Treasury Solicitor on behalf of the employer dated 12 December 1995, begins:

"I am instructed in respect of the above matter on behalf of the Respondent. This matter has been fixed for a two day hearing on 2nd and 3rd January 1996 but unfortunately one of my witnesses will be unavailable as she will be away on annual leave at the time."

In response the Tribunal's letter dated 15 December 1995 states in paragraph 2:

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

(s) :

Inconvenience to witnesses is an insufficient ground for granting a postponement.

In view of the hearing date your request comes too late. Please refer to the warning regarding this point which is in the Notice of Hearing.

It is not normally the practice in these Tribunals to postpone hearings because a particular representative is unable to attend. The Chairman expects the representative to ensure that alternative representation is arranged."

In support of the appeal Miss Heal, whilst recognising that a Tribunal Chairman has a wide discretion in relation to applications for postponement under Rule 13(7) of the Industrial Tribunal Rules of Procedure 1993 , which discretion can only be interfered with in the limited circumstances identified by the Court of Appeal in Carter v Credit Change Limited

[1978] ICR 908

, nevertheless submits that the Regional Chairman's reasoning in this case was erroneous in that

(a) she failed to take into account wholly exceptional circumstances in this case

(b) she allowed her discretion to be fettered and

(c) she elevated the factor of delay to being a general principle, overriding the other factors which ought to have been taken into account.

Dealing with those submissions in turn:

(1) We cannot see that the circumstances here were wholly exceptional. We are now told, although the Industrial Tribunal Chairman was not, that the unavailable witness for the employers was the dismissing manager. That fact ought to have been brought to the Tribunal's attention in case it might make a difference to the outcome of the application. Similarly, it seems that Mr Lloyd omitted to inform the Tribunal that he had represented the Applicant throughout the internal disciplinary proceedings. The Chairman cannot be criticised for failing to take into account matters which were not put before her. On the face of the letters from the parties dated 8 and 12 December 1995, there was nothing wholly exceptional about the grounds put forward for the adjournment. Both the dismissing officer, Miss Carty and Mr Lloyd happened to have leave booked out for those two days. Neither, so far as we know, will be abroad.

(2) and (3) we take together.

We can see nothing in the Chairman's reasons which indicate that she has accepted a fetter on her discretion, nor elevated the factor of avoiding delay to a general principle to be applied in all circumstances. She states in terms that she has considered everything said by the parties and balanced that against the desirability of avoiding delay. In our view that is precisely the sort of balancing act which Parliament has entrusted to Industrial Tribunal Chairmen, and with which we have no power to interfere.

In these circumstances we are unable to discern any error of law on the part of the Chairman in refusing a postponement in this case and accordingly this appeal must be dismissed.