Automated Process Plant Ltd v Poole [1995] UKEAT 882_95_1109

EAT
Automated Process Plant Ltd v Poole
[1995] UKEAT 882_95_1109 · 1995-09-11

JUDGE HICKS Q.C. :

This is an application by the employer, Automated Process Plant Ltd by way of an appeal against the decision of the Chairman of the Industrial Tribunal refusing an application for a postponement of the hearing date fixed for Monday, 18th September 1995.The history is that the employment commenced on 12th January 1994 and was terminated in February 1995 by the employer. On 19th May 1995 the employees' application, on the basis of unfair dismissal, was received by the Industrial Tribunal. On 30th June 1995 the employer's Notice of Appearance was received. On 17th July 1995 the Tribunal office gave notice of hearing, as I have said, for 18th September 1995 at Sheffield, which was and is the employer's place of business.On 25th July 1995 there was notice of a counter-claim by the employer for misrepresentation. On the same date the employer made an application for one month's postponement of the hearing on grounds essentially of pressure of work. There was no reference at that stage to the health of the sole director of the employer. On 27th July 1995 the Chairman refused that application. On 31st July 1995 the employer applied for that decision to be re-considered and for a pre-hearing review; in that application the health of the director was referred to.On 3rd August 1995 the Chairman refused the application for the pre-hearing review, and then after an abortive attempt to apply to the Regional Chairman, who replied that he had no jurisdiction to intervene, the employer made this appeal, and has lodged with us a letter from the general practitioner of the director, Mr Knight.Neither party appears before us. So far as the appeal simpliciter is concerned, the position is that an appeal lies to this Tribunal only on a point of law, that the jurisdiction to grant or refuse an application for postponement is a discretionary jurisdiction in the Chairman, and that on well established principles this Tribunal can therefore only interfere if it is shown that the Chairman has taken into account matters that he should not have taken into account, or has failed to take into account relevant matters, or that, even in the absence of some specific point of that kind, the decision is so manifestly wrong that the Chairman must have operated on a wrong principle of law. In our view, there is absolutely no way in which we could interfere on those grounds.There is however the separate matter that by sending the doctor's letter, the appellant, presumably, is asking us to admit that as new evidence. We are not assisted by the fact that no one is here, but we have considered whether we should admit that new evidence. Again, on well established principles, that should be done only if it could not with reasonable diligence have been adduced to the Tribunal below. We are doubtful whether that criterion can be met here on the history that I have given, but, assuming in the appellant's favour that it can, the criteria that it is inherently credible, and that it might have had an effect on the decision are clearly satisfied. We therefore looked at the doctor's letter, dated 21st August 1995, and it says:
"... Mr Knight has been [ the writer's ] patient for that last 5 years. During the last few years he has contended with a number of personal, domestic and business anxieties. I am pleased to say that over the last few months he has almost returned to normal. However, he is very busy at work and is beginning to show signs of anxiety. I understand that he alone is running the company and that he also has been asked to prepare a case and appear before a tribunal in London in early September. [ I interpose that that is clearly a misunderstanding, because the Tribunal is in Mr Knight's home city, and where he carries on his business, of Sheffield. ] In my opinion, he is not able to meet all the deadlines that have been set. As a consequence, I feel that his mental state may be such that I will have to sign him as being unfit for work. I feel if the current state is allowed to continue, that he would not be fit to travel and unable to appear at the tribunal.
I do think that if he is given a little more time, that his business pressures will have subsided to the extent that he will be able to cope with the mental pressures associated with appearing at the Tribunal. I believe a postponement of the Tribunal hearing for 4-6 weeks would be sufficient to relieve this pressure."As I have said, assuming in the appellant's favour that an application to admit that new evidence would be successful, we have considered it, and, in our view, that is not evidence that justifies our interfering with the decision of the Chairman. The highest which the doctor puts the point is that he, Mr Knight, is beginning to show signs of anxiety, and that he feels that his mental state may be such, that he will have to sign him as being unfit for work. What the position may be next Monday when the case is called on at the Industrial Tribunal is not for us to speculate. At the moment we are clear that there are no grounds on which we ought to interfere with the refusal of the Chairman to grant a postponement of the date of the hearing.The appeal is therefore dismissed.