Fox v Brett (t/a Silvershield Windscreens) [1995] UKEAT 344_95_0604

EAT
Fox v Brett (t/a Silvershield Windscreens)
[1995] UKEAT 344_95_0604 · 1995-04-06
MR JUSTICE MUMMERY (PRESIDENT): This is an interlocutory appeal by the applicant Mr K D Fox in proceedings for unfair dismissal from his position as a sales representative of the Respondents, B J and J G Brett who trade as Silvershield Windscreens.The proceedings were started by an originating application presented in January this year. It is not necessary for the purposes of this appeal to examine the grounds of the application. The case is defended by the Respondents who filed a Notice of Appearance on the form IT3 on 16th February.This appeal is concerned with the refusal of the Industrial Tribunal to postpone the hearing. The case was originally listed to be heard on 17th March. The representatives of Mr Fox, Professional Personnel Consultants Ltd, wrote on 22nd February, when they had received notification of the listing for 17th March, asking the Industrial Tribunal at Bury St Edmunds to consider an application postponing that date to an agreed date in the future. The reason given for the request was that, due to the very short notice given by the Tribunal, the representative at Professional Personnel Consultants Ltd, Mr Colin Henson, was already in a Tribunal in Norwich in another case and members of his organisation were committed to other actions, representations and so on, on that date. It was therefore impossible to provide representation to Mr Fox.The Tribunal replied, through the Regional Secretary, on 23rd February granting a postponement, postponing the hearing arranged at Bury St Edmunds for 17th March to a new hearing date on 20th April. That gave rise to another application for a postponement. Mr Henson sent a facsimile on 24th February saying that the 20th April was not convenient and urging relisting to be considered.The Regional Secretary replied, saying that the matter had been referred to the Chairman of Tribunals, Mr Ash. It was stated that the request was refused, and that the Chairman's comment was this:
"You do not say why the date is inconvenient. Unless there is a good and compelling reason to vacate the date the hearing goes ahead."
That letter was sent to Mr Henson on 27th February.Mr Henson replied on 1st March saying, in response to the request for an explanation as to why 20th April was inconvenient:
"... I must point out that I am already committed on that day, lecturing for a full day in the specialised area of Health and Safety at Work and Risk Assessment on behalf of my organisation. This is a long standing arrangement and has been arranged for some six months. It is impossible for any of my colleagues who do not have knowledge in this field to deputise for me due to the specialised nature of the work. Similarly, none of my colleagues are available on 20th April 1995."
The letter concluded:
"I feel, that due to my knowledge of the Case and relationship with the Applicant, justice would be better served if the continuity is maintained and therefore I respectfully ask you to re-consider your decision not to grant my request."
There was no delay in responding to that. The letter of 3rd March from the Industrial Tribunal contained the direction of the Chairman, in this case Mr Crome:
"The convenience of representatives is given a low priority in matters of listing. The case had already been before a Chairman who has come to his decision. The further explanation given in response to that decision is not sufficient weight for me to come to a different conclusion."
This matter has been followed up since on 8th March. Mr Fox personally wrote a letter in support of the application for a postponement. He referred to Mr Henson of Professional Personnel Consultants Ltd as someone known to him, and someone he could trust, and who had been involved in his case from day one. He had been advising him all the way along, so that he knew the details and the background. He said that he understood from him that the date of 20th April 1995 was one on which he was not available and had asked for a postponement, which has been refused. Mr Fox said:
"As I trust him implicitly and do not feel confident in being represented by anyone else. I am asking you to please postpone the hearing for my benefit so that I can have the best possible representation of my case."
He wrote a PS:

"It cannot be fair if I cannot have someone of my choice to represent me!"

The reply to Mr Fox from the Regional Secretary was that:
"Two applications for an adjournment have already been refused. No new grounds have been shown and the application must therefore be refused. The hearing will go ahead on 20th April 1995."
This led to a further letter from Mr Fox, in which he sought to appeal against the decision of the Bury St Edmunds office not to alter the hearing of the case between himself and Messrs Brett. He referred to the circumstances in which he had engaged Mr Henson, and he made certain comments about his treatment by the Respondents. He finished:
"I really do not see why it is so impossible to give another date and appeal to your sense of fair play and justice ..."
That is how matters have stood since the middle of March.The Employment Appeal Tribunal received at Notice of Appeal lodged by Professional Personnel Consultants Ltd on behalf of Mr Fox on 5th April. It is an appeal against the decision not to grant a postponement of the hearing, in just two weeks time.The Notice of Appeal sets out the background. The ground of appeal makes this comment:
"I would have thought that the Applicant, who is the injured party, should be given a greater consideration that a Respondent, and it is not unknown in such circumstances, for Tribunals where the applicant is represented by a Union or Citizens Advice Bureau, that the unavailability of representatives has been sufficient for the Tribunal to consider and grant postponements, similarly it is also not unknown, and has happened to the Applicant's representative twice in the last three months, for only 24 hours notice to be given for a postponement, due regrettably to the non-availability of a Chairman. Such inconsistency does not, in the Applicant's mind in this case seem fair, and I am quoting from the Applicant's own views."
The grounds of appeal go on to say that the applicant is most concerned at the Tribunal's failure to accede to his request. The Notice of Appeal concludes:
"It is considered that the decision of the local Tribunals to refuse such Application denies the basic tenant [ sic ] of an individual to have, what he considered to be, the best possible representation. In the circumstances, if this Appeal is denied then Mr Fox is in two minds as whether to pursue the Application due to the uncertainty it has now raised in his mind, or failing that to attend without representation, in which case any decision from any local Tribunal will be flawed and there will almost automatically be an Appeal should the Applicant fail in his case."
"I therefore urge, on behalf of the Applicant, that you consider his request most carefully and overturn the local Tribunals decision to refuse a postponement for valid reasons."
That appeal has been heard at short notice. Nobody has attended on either side. We deal with the case on the basis of the Notice of Appeal and the accompanying papers.We have decided that we should not interfere with the exercise of the Tribunal's discretion to refuse a postponement. The position under the rules is that the Tribunal has a discretion whether or not to grant adjournments of proceedings. We only have jurisdiction to review a decision of an Industrial Tribunal on the grounds of an error of law. The exercise of a discretion is only flawed by error of law if the discretion is exercised on the basis on a wrong principle or by taking into account irrelevant factors or leaving out of account relevant factors, or if it can be said that the decision is one that no reasonable tribunal could have reached in all the circumstances of the case.We are unable to find an error in this decision on any of those grounds. It seems to be argued in the papers that it is an error on that part of a tribunal to give a low priority to the convenience of representatives in matters of listing. In our view that is not an error. That was clearly something that had been taken into account, but was not regarded as of sufficient weight, in the circumstances, to vacate a date, fixed after the postponement of an earlier date. The convenience of representatives is a relevant factor, because the representative has been selected by client. It is relevant to take into account the client's wish to have a particular representative. That is not, however, decisive. It is for the Tribunal to decide what weight to give to that factor. In matters of listing, other factors are also relevant. One relevant matter is that cases before an Industrial Tribunal are meant to be brought on as speedily as possible. This case was started in January. The Industrial Tribunal wanted to reach a decision as soon as possible. The Tribunal were entitled, having postponed the hearing from 17th March to 20th April, to say "No. The hearing should go ahead on 20th April, we refuse to postpone it." There is no error of law involved in the exercise of the discretion. We therefore dismiss the Appeal.We add this. There is nothing in the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 to prevent a fresh application for an adjournment to the Tribunal convened to hear the case on 20th April. Whether an application made then is granted is entirely a matter for that Tribunal, depending on the circumstances. We are not encouraging an application to be made. The only proper course for Mr Fox and his advisors to take is that the hearing is likely to be effective on 20th April. They should be prepared for it. Efforts must be made to find another representative for Mr Fox, if Mr Henson is unable to extricate himself from his commitment to give a lecture. If it is not possible to find another representative in Mr Henson's organisation, or another representative elsewhere, then Mr Fox should attend personally at the Tribunal ready to conduct the case, or if he is not able to do so, to explain his predicament to the Tribunal.It is a matter for the Tribunal how they deal with any application made on 20th April. We have no doubt that there is no error of law here.