Hilton Contracts Ltd v Lennon [1997] UKEAT 1247_97_1111

EAT
Hilton Contracts Ltd v Lennon
[1997] UKEAT 1247_97_1111 · 1997-11-11

JUDGE PETER CLARK :

This is an appeal by the Respondent employer before the Stratford Industrial Tribunal, Hilton Contracts Ltd, against a Chairman's interlocutory order made by letter dated 4 November 1997, refusing the Respondent's application for a postponement of the hearing of this complaint listed for 12 November.The background is as follows. On 26 April 1997 the Applicant, Mr Lennon, presented an Originating Application to the Industrial Tribunal complaining of breach of contract; failure to provide a statement of particulars of his terms and conditions of employment; failure to provide itemised pay slips and unlawful deductions from wages. He alleged that he was employed by the Respondent as Head Chef from 24 February until 15 April 1997.By its Notice of Appearance the Respondent contended that the Appellant had been engaged on a self-employed basis, and that his services had been terminated for cause. The claims are disputed.On 16 May the Industrial Tribunal made an order for directions, including first an order for discovery, namely that each party should within 14 days disclose to the other all documents on which it is intended to rely at the hearing. A formal order for discovery and inspection of documents was to be made upon application by either party. Further, there was a direction for exchange of witness statements. That reads:
"It is the usual practice in the Region for the evidence of witnesses to be given by reference to their written statements and then to be cross-examined by the other party. Witness statements should be exchanged by the parties not later than 7 days before the date fixed for the hearing."
On 18 August the Respondent wrote to the Industrial Tribunal asking for a postponement of the hearing of the case, then due to be heard shortly, due to non-availability of witnesses. A complaint was also made in that letter that the Respondent had not received the Appellant's bundle from his representative, Mr Cato of the North Lambeth Law Centre.On 20 October the Industrial Tribunal gave notice of the hearing fixed for 12 November. By a fax which is undated but was probably transmitted in early November, the Respondent again applied for a postponement, on the grounds of non-availability of witnesses, and because it was said that the Applicant's representative had not sent a copy of his bundle.On 4 November the Tribunal replied, indicating that a Chairman had refused the application for a postponement.Now there is an appeal against that refusal.We felt obliged to raise with Mr Wixted, who appears on behalf of the Respondent, the fact that one of the Applicant's complaints relates to an alleged breach of contract.It has been recently pointed out to this Appeal Tribunal, and the President has recently so ruled, that there is a lacuna in the new legislation, that is the Employment Rights Act and the Industrial Tribunals Act 1996 , which replaces the Employment Protection (Consolidation) Act 1978 , amongst other statutes. Whereas under the 1978 Act we plainly had jurisdiction to entertain appeals on questions of law arising in breach of contract proceedings before Industrial Tribunals, it now appears, by virtue of a combination of Sections 3 and 21 of the Industrials Tribunals Act, that we no longer have that jurisdiction. Accordingly we are unable to entertain an appeal against this Tribunal's order to postpone the breach of contract claim.However, that leaves three further complaints in respect of which we do have jurisdiction provided that an error of law is made out.Appeals against interlocutory orders of Industrial Tribunals are no different from appeals against substantive decisions. We can only interfere where first an error of law is identified: see Medallion Holidays v Birch [1985] ICR 578.The Industrial Tribunal's power to order a postponement of a hearing is expressly provided for in Rule 13(7) of the Industrial Tribunal Rules of Procedure 1993 . If such an order is to be successfully attacked, it must be shown that the Chairman took into account an irrelevant factor, failed to take into account a relevant factor, or otherwise reached a conclusion which was perverse: see Bastick v James Lane Ltd [1979] ICR 778, 782 B - C per Arnold J.Here the contention on behalf of the Respondent before the Industrial Tribunal Chairman was that it had not received a copy of the Applicant's "bundle". In fact, the Applicant's representative wrote to the Respondent on 4 June 1997, enclosing a list of four documents on which the Applicant intends to rely, together with copies of those documents. Thus, the basis for the application for a postponement before the Chairman falls away. There is no error of law here made out. The appeal fails and must be dismissed.What Mr Wixted complains of today is not a failure to disclose the Applicant's documents, but delay in serving the Applicant's witness statement, a point which he has failed to make in correspondence and the Notice of Appeal before today. He tells us that he has, some time ago, served six of his own witness statements on the Applicant's representative. We have not seen the covering letter which went with those statements. He says that he only received the Applicant's witness statement yesterday. He submits that it is now too late to deal with the matters raised in that witness statement, and to take legal advice so far as is necessary on the contents of that statement, before tomorrow's hearing before the Industrial Tribunal.That is not a matter with which we can deal in this appeal. His remedy, if any, lies in renewing his application for an adjournment before the Industrial Tribunal tomorrow if the Respondent still feels unable to deal with the matter. That will then lie within the discretion of the Industrial Tribunal which sits to hear the substantive case.Having dismissed this appeal we have considered the application contained in the Applicant's representative's letter of 10 November 1997 for an order for the Applicant's costs in this appeal in the sum of £75. That application is opposed by Mr Wixted.Bearing in mind the limited powers which we have to make orders for costs under Rule 34(1) of the EAT Rules 1993 and given that we have reached the conclusion that there was some misunderstanding on the part of Mr Wixted as to precisely what was the basis on which he was applying for an adjournment to the Industrial Tribunal, we have decided that this is not a proper case in which to order costs. Had we thought it was a proper case, we would have done so. We were not impressed by Mr Wixted's contention that his solvent limited company could not afford £75.