Economics Ltd v McIvor [1996] UKEAT 1415_96_1812

EAT
Economics Ltd v McIvor
[1996] UKEAT 1415_96_1812 · 1996-12-18

JUDGE LEVY QC :

On 19th September 1996, the Industrial Tribunal received an application from Ian Henry McIvor making a complaint that there had been a breach of contract, non-payment of wages, holiday pay and expenses by his employer, Economics Ltd, and he sought a hearing from the Industrial Tribunal. The solicitors for the employers (the "Solicitors") put in a Notice of Appearance on 15th November 1996 claiming in terms that the wrong respondent had been chosen and making it clear that there were issues about conduct to be raised.The tribunal notified the parties that there was a hearing date on 3rd January 1997. That application was received by the solicitors for the respondent on 29th November 1996; on 4th December 1996 the Solicitors wrote to the Industrial Tribunal as follows:
"We are instructed by Economics Limited, the Respondent in the above-captioned case.
We are in receipt of the Notice of Hearing listing the Application to be heard at 10 am on Friday, 3 January 1997.Unfortunately, this date is not suitable since we are instructed that our client's principal witness, Mr Stephen Fox, will be in Hong Kong on business at that time. We are instructed that he is likely to be unavailable until the last week of January.Further, it occurs to us that the hearing of this matter may well take two days and this should be borne in mind when the matter is re-listed.

We look forward to hearing from you."

On 13th December, the Industrial Tribunal's office at London (South) wrote to acknowledge the letter of 4th December, and in a letter, which appears to be in standard form, said at 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. and your request is not backed up by any proof of booked flights and date of booking.The Chairman expects Respondents to ensure that their employees are at the hearing(s). You may seek a witness order against prospected witnesses if you wish.

Moreover, your opponent has objected to the postponement requested."

Obviously not all the contents of paragraph 2 are in pro forma form.On 16th December 1996 the Solicitors faxed the Industrial Tribunal thus:
"Further to our fax on Friday, 13 December, we attach to this letter details of flight confirmations for Mr Fox to Hong Kong.
We are advised by Mr Fox that the purpose of his trip to Hong Kong is to negotiate a contract for his company with a value of approximately £1.6 million. We are told that if these negotiations are successful, employment will be secured for approximately 100 people.

We look forward to hearing from you."

The fax which was sent appears to have included details of an air ticket, apparently booked on 6th December, showing Mr Fox travelling to Hong Kong by a night flight on 2nd January 1997 with an open return dated 28th June 1997.The Industrial Tribunal sent a further letter by fax to the Solicitors on 18th December 1996, which reads:
"Thank you for your letter of 16 December 1996, which has been referred to a Chairman of the Tribunals.
I have been directed to inform you that your renewed request for a postponement has been refused as the booking was made after the Tribunal set the Notice of Hearing, and in those circumstances the Tribunal hearing must take precedence."Against both the original refusal to adjourn and the second application to adjourn the Company makes an interlocutory appeal. Mrs Outhwaite appears for the Company on these appeals. She says in her clear and helpful submissions that the Chairman has wrongly exercised his discretion. He has failed to balance the needs of the responsible officer of the employer to be in Hong Kong and his needs to be present at the proposed hearing by refusing to adjourn the hearing to a date which is convenient to all parties.We can only interfere with the exercise of his discretion by a Chairman if we think it is a decision which he could not have reached having looked fairly at all the factors. It may be that another Chairman would have reached a different decision but we do not consider that his decision is in any way perverse. About the reasons given in correspondence, we observe that in the letter of 4th December, it is not stated that Mr Fox has to be Hong Kong on 3rd January 1997. We observe that the hearing date is on that date, a Friday. It does not seem to us to be beyond the powers of negotiation for Mr Fox's trip to Hong Kong to be postponed, so that he travels on Friday night, rather than on the date which he has at present booked, namely a night flight on 2nd January.In the circumstances we dismiss this appeal. We thank Mrs Outhwaite for her assistance this afternoon.