Garner v Withnell Parish Council [1997] UKEAT 32_97_2201

EAT
Garner v Withnell Parish Council
[1997] UKEAT 32_97_2201 · 1997-01-22
MR JUSTICE KIRKWOOD: Mrs Garner, the Appellant, was employed for some while by the Respondent, Withnell Parish Council. Her employment was terminated on 24 October 1995 and on 12 January 1996 she applied to the Central Office of the Industrial Tribunals in respect of that dismissal.The case has had a chequered history since then. At first the Respondent put in issue whether Mrs Garner had been an employee. The preliminary hearing fixed for 30 May 1996 was then put off when the Respondents changed their contention about that. A further hearing was fixed for 24 June 1996, but fixed only for a day despite the Appellant's Solicitor having informed the Tribunal that two days would be needed. So that appointment had to be vacated as well.A further hearing was fixed for 25 September 1996 but postponed at the request of the Respondent, who apparently required more time to peruse documents provided by Mrs Garner. It was fixed again for 31 October and again postponed at the Respondent's request because of non-availability of witnesses. It was fixed again for 19 December and postponed again because the Appellant was not going to be available on that day, nor were her witnesses.When the Appellant's Solicitor wrote to the Tribunal about the December fixture, which they did promptly, the result was a letter re-fixing the hearing for 27 and 28 January. The notification of that was received by Mrs Garner's Solicitor on 26 November. As early as 2 December those Solicitors requested a postponement giving alternative availability dates. The reason for that was that Mrs Garner's Solicitor was not going to be available on 27 and 28 January because he had another commitment in respect of another case in another court that day. The Chairman declined to allow another postponement and persisted in that approach despite a number of other further requests from the Appellant and her Solicitor.The refusal of that request was in these terms:
"Your request for a postponement of this case has been considered and is refused, because the reasons put forward, ie. the non-availability of a particular member of a firm of solicitors to attend on the day of the hearing, does not constitute exceptional circumstances justifying the request being granted."
In the subsequent letter on 30 December from the Industrial Tribunal that was enlarged upon in these terms:
" ... The non-availability of a representative is not a wholly exceptional reason and the Chairman is satisfied that the interests of justice would not be served by a further postponement at this stage; and he notes in passing you yourselves were objecting to further delay in the letter which you sent to the Tribunal on 25th October 1996 objecting to a previous request for postponement from the Respondent's solicitors.
Further, and in any event, if the reasons for the particular member of your firm representing the Applicant are as compelling as you claim in your letter dated 20th December 1996, there is quite clearly ample time for alternative representation to be arranged (or an adjournment to be sought) in the other case in which he proposes to appear elsewhere on 27th and 28th January."Mrs Garner appeals against that refusal to postpone the case and we have considered the papers with some care.On the one hand, we recognise that the Industrial Tribunal is master of its own affairs and discretion lies with the Chairman as to the fixing of dates and altering of fixtures. On the other hand, we are concerned that, after the chequered history of this case, which I have outlined, no attempt seems to have been made by the Tribunal to fix the hearing in January for a date convenient to both parties. That is something that could have been done, and indeed, was done at an earlier stage and we feel sure that had it been done in this instance the difficulty would not have arisen.We are also concerned that Mrs Garner, plainly from her representations, feels very strongly indeed that she needs to have the Solicitor she has instructed and who has counselled and supported her throughout this distressing episode, to represent her at the hearing. It is plain that she may perceive an obstruction to that ambition as something about which she feels a grievance and we are satisfied that it is of the greatest importance that Mrs Garner should not be left, whatever the outcome of the hearing, with an abiding sense of grievance that things were not done in a way that would leave her feeling that she has had justice.We think that the Tribunal was wrong not to have regard to that, indeed wrong not to attach considerable weight to that, and we have concluded that Mrs Garner's appeal should be allowed; that the date fixed for 27 and 28 January should be vacated and that the hearing should be re-fixed, after consultation with Solicitors on both sides, to ensure that a date which everybody can manage is fixed and then adhered to. So the appeal will be allowed in that way.