James v Wesleyan Assurance Society Ltd [1997] UKEAT 287_97_1303

EAT
James v Wesleyan Assurance Society Ltd
[1997] UKEAT 287_97_1303 · 1997-03-13

JUDGE PETER CLARK :

This appeal raises the vexed question of what course Industrial Tribunals, and indeed this appeal tribunal, ought to take in cases potentially affected by the pending decision of the House of Lords in R v Secretary of State for Employment ex-parte Seymour-Smith and Perez . The Court of Appeal decision in that case is reported at [1995] ICR 889 . We have heard the oral submissions of the appellant and have also taken into account the written submissions of the respondent's solicitors dated 11th March 1997.

Background

On 14th October 1987 the appellant was dismissed by the respondent from his position as an ordinary life inspector working from the Gloucester and Bath District offices. At that time he had completed just under two years continuous service.He presented a complaint of unfair dismissal within three months of the date of dismissal. ["The 1987 application"]. No action was taken on that complaint.On 7th September 1995, following the Court of Appeal judgment in Seymour-Smith , the appellant presented a second Origination Application ["the 1995 application"] based on his original complaint of unfair dismissal against this respondent.The matter was listed for hearing before a Chairman sitting alone at Bristol on 27th November 1995. The Chairman held that he had no jurisdiction to entertain the complaint because it had not been presented within three months of dismissal.Against that decision the appellant appealed, and on 27th January 1997 a division of this appeal tribunal, presided over by Judge Colin Smith QC allowed the appeal, reversed the tribunal's decision, and directed that the matter be remitted to the Industrial Tribunal for determination. We refer to the judgment of Judge Colin Smith QC for the appeal tribunal's reasoning.Following promulgation of the Employment Appeal Tribunal's order the Industrial Tribunal gave notice to the parties by letter dated 26th February 1997 that the case would be listed for a preliminary hearing on 18th March 1997. The preliminary issue to be decided is whether the appellant had completed two years continuous service with the respondent prior to his dismissal for the purposes of s.108(1) of the Employment Rights Act 1996 .Upon receipt of that notice the appellant promptly wrote to the tribunal on 27th February seeking an adjournment of the hearing fixed for 18th March on the grounds that the House of Lords had yet to decide the appeal in Seymour-Smith , and further that the determination of the questions in that case would ultimately be a matter for the European Court of Justice.On 28th February solicitors for the respondent, Wragge & Co, wrote to the tribunal asking that the claim be dismissed, not adjourned. They pointed to the considerable costs already incurred in defending this claim.On 3rd March the Regional Chairman, Mr M E Woods, refused the appellant's application for a postponement. His reasons for so doing were expressed to be as follows:
"1 This application arises out of a dismissal on 14 October 1987. The evidence relating to it is already stale and a further postponement of a final hearing for an indefinite period can only worsen the position in this respect and may ultimately make the matter impossible of having a fair hearing. The respondents have already been prejudiced by the delay in the final determination of this matter by the applicant's failure in 1987 to respond to the Rule 1 letter. Their position may be worsened by further delay because of the ability of the respondents' witnesses to recall the facts will be further impaired and their witnesses may be lost altogether by events such as death.
2 In my view the duty of the tribunal of first instance is to deal as expeditiously as possible with cases on the basis of its current understanding of the law. That is the approach that tribunal are now taking to these cases and I can see no justification for varying that approach in this case. Indeed, by reason of the matters referred to in paragraph 1 it appears to me that the interests of justice now require a speedy final determination of this case. My view in this respect is reinforced by what Mr Justice Holland said in the case of Ms P Thomas v The National Training Partnership Ltd (Appeal No. EAT.1126/96) when the Employment Appeal Tribunal refused an appeal against the decision of an Industrial Tribunal to grant a postponement in another case involving Seymour-Smith point. A copy of the transcript of that decision is enclosed with this order for the information of the parties.3 The respondents oppose a postponement for the reasons set out in their solicitors' letter of 28 February 1997 a copy of which is enclosed to the applicant."Against that order the appellant now appeals.

Seymour-Smith

The House heard argument in that case last year. It is still to give judgment. Our understanding is that the parties are currently attempting to formulate questions for the European Court of Justice. If questions are referred to Europe yet further delays will occur before the issues in the case are finally resolved.There are many cases pending before Industrial Tribunals in which the question of qualifying service arises.For some time those cases were held in suspense. However, the matter has now dragged on for so long that steps are presently being taken to determine those applications. We have seen, for example, a letter to the respondent from the Birmingham Industrial Tribunal dated 17th February 1997 which sets out the current Industrial Tribunal practice to which the Chairman referred in his reasons.Meanwhile, appeals to the Employment Appeal Tribunal in cases where applications have been dismissed on the grounds of insufficient qualifying service remain in suspense until the resolution of the Seymour-Smith question. This case is an exception to the general practice, since it involves an appeal against a refusal to postpone a preliminary hearing held to determine the qualifying period issue.

This appeal

Chairmen of Industrial Tribunals have a wide discretion to grant or refuse a postponement under Rule 13(7) of the Industrial Tribunal Rules of Procedure 1993. Carter v Credit Change Ltd [1979] ICR 908 .The appellant complains that the order made on 3rd March was made without a hearing, and with no evidence having been called. The Chairman exceeded his authority. Further, he argues that the Chairman may have shown partiality by taking into account the respondent's solicitors desire to save their clients further costs.As those to those submissions:(1) it is not impermissible for such an application to be dealt with on paper, without a hearing. In our view, the appellant has jumped the gun by appealing the Chairman's existing order, rather than renewing it at the hearing on 18th March.(2) the Chairman plainly had the power to refuse the appellant's application for an adjournment.(3) he was entitled to take into account the expense to the parties of this litigation; in fact, he refused the respondent's solicitors application to dismiss the complaint on paper, which would have saved further expense, and instead has directed that the hearing on 18th March should proceed.In these circumstances we can see no grounds for interfering with the Chairman's exercise of discretion in making the order on 3rd March.This appeal is dismissed.However, that does not end the matter. The order made on 3rd March was an interlocutory, not a final order under Regulation 2 of the Industrial Tribunal regulations. It is, as we have observed, open to the appellant to renew his application for a postponement pending determination of the Seymour-Smith case at the oral hearing before the tribunal on 18th March. It will then be a matter for that tribunal, having heard the parties' representations, to determine whether or not the tribunal is in a position to decide the preliminary issue in the absence of a ruling by the House of Lords and/or the European Court of Justice on the validity of the two year qualifying period for complaints of unfair dismissal contained in s.108(1) of the Employment Rights Act 1996 .