Cowan v Interactive Audiotext Services Ltd [1998] UKEAT 778_98_0106

EAT
Cowan v Interactive Audiotext Services Ltd
[1998] UKEAT 778_98_0106 · 1998-06-01

JUDGE PETER CLARK :

This is an interlocutory appeal by Miss Cowan, the Applicant before the Stratford Industrial Tribunal, against an order of a Chairman made on 4 June 1998, refusing her application for a postponement of the hearing of her complaint of unfair dismissal against the Respondent, Interactive Audiotext Services Ltd, presently fixed for 24 June 1998.The background is as follows. The Appellant commenced employment with the Respondent as a telephone operator in July 1995. During the employment she presented two Originating Applications to the Industrial Tribunal complaining of unauthorised deductions from her wages and breach of contract against the Respondent which came on for hearing before an Industrial Tribunal Chairman, sitting alone at Stratford on 15 September and 17 November 1997. The Chairman upheld the complaints in part, awarded her £100, and ordered her to pay £50 towards the Respondent's costs, by a decision with summary reasons dated 18 December 1997. That was followed by extended reasons dated 15 January 1998.On 12 December 1997 the Appellant was given notice of dismissal to take effect on 31 December. On 24 March 1998 she presented a further Originating Application to the Industrial Tribunal, alleging that her dismissal was automatically unfair, the reason for it being that she had asserted a statutory right; alternatively that the dismissal was unfair under section 98 (4) of the Employment Rights Act 1996 (the material complaint). In her Originating Application she did not name a representative. The material complaint was resisted by the Respondent whose Notice of Appearance dated 9 April 1998 was drafted by Solicitors, Welburn & Co.On 27 May 1998 the Industrial Tribunal sent out a Notice of Hearing to the parties, fixing the date for hearing of the material complaint on 24 June 1998.On 3 June 1998 the North Lewisham Law Centre faxed the Industrial Tribunal, stating that they were now instructed on behalf of the Appellant and applying for a postponement. The reason given for the application was as follows:
"Unfortunately the lawyer dealing with this case is on annual leave on this date and we would therefore request an adjournment of this case. As you will appreciate The Law Centre is a charity and offers free legal advice, assistance and representation. If this adjournment is not granted our client would have to attend The Tribunal unrepresented as she does not have the funds to instruct private solicitors. Unfortunately the other lawyer dealing with employment law at The Law Centre is also already engaged on that date as well.
We would respectfully refer you to De Souza v British Telecom EAT/400/96 which clearly set out that the Industrial Tribunal should have particular regard to the limit of resources of the Law Centre when reaching a decision on granting postponements."The letter goes on to suggest further dates for the vacated hearing, up until 12 August. At any rate, the dates to be avoided during that period.The Industrial Tribunal, on receipt of that application, contacted the Respondent's Solicitors who faxed the Tribunal on the same day. They objected to the postponement. They did not consider that the holiday arrangements of the Appellant's recently appointed representative provided good grounds for delaying the hearing.On 4 June the Tribunal faxed the Appellant's representative, refusing the postponement in the following terms:
"A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.
The Chairman refuses your request for the following reason:'The Applicant's representative's holiday is not a meritorious ground for granting a postponement'."Against that order the Appellant appealed by a letter dated 8 June. They contended that the Chairman had given no consideration to the EAT decision in De Souza v British Telecom .It also appears that the Appellant applied on 9 June to the Industrial Tribunal for a review of the Chairman's decision. In fact, an order refusing a postponement is not a decision capable of review under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . However, the Chairman did reconsider his order in the light of De Souza . He distinguished that case on its facts and affirmed his original order. Specifically, in the letter from the Industrial Tribunal dated 9 June it is said:
"The Chairman has taken into account the Law Centre's logistical difficulties but has weighed the reason given for unavailability against the representations made by the Respondent in their letter of 3 June 1998.
We stress, as did the Appeal Tribunal presided over by Judge Hargrove QC in De Souza , and in many other cases of this type, that the circumstances in which we can interfere with interlocutory orders of Industrial Tribunals are limited to correcting errors of law.In the De Souza case the Appeal Tribunal held that the Industrial Tribunal Chairman had proceeded on an erroneous view of the facts and had impermissibly fettered his discretion. Accordingly, that Chairman had fallen into error, allowing this Appeal Tribunal to interfere on the facts of that case.Before us today Ms Johnson submits that the error of law, on the part of the Chairman in this case, was his failure to take account of all the factors advanced on behalf of the Appellant in the Law Centre's letter of 3 June; in particular, the fact that late instructions were received by the Law Centre on 2 June; that there was then an immediate request for an adjournment within the 14 day period referred to in the Notice of Appearance; that this is a complex case involving the principle of dismissal by reason of asserting a statutory right and the fact that it is in the interest, not only of the Appellant but also of the Industrial Tribunal, if not the Respondent, that the Appellant is legally represented in these proceedings.We have considered that submission and we find ourselves sympathetic to the basis for the application, but we must resist the temptation to simply substitute the exercise of our discretion for that of the Chairman.It seems to us that this is a case in which the Chairman is not shown to have failed to take into account any relevant factor, nor taken into account any irrelevant factor. He had to balance the conflicting interests of the Appellant and the Respondent who wants to get on with this case, coupled with the general public interest in having Industrial Tribunal cases dealt with as soon as practicable.Bearing all these matters into account, we have reached the conclusion that no error of law is made out in this appeal and consequently, we must dismiss it.