Yakamoto Futon Centre Ltd v. Brown [1999] UKEAT 322_99_0903

EAT

Yakamoto Futon Centre Ltd v. Brown

[1999] UKEAT 322_99_0903 · 1999-03-09

JUDGE PETER CLARK:

On 27 October 1998 the Applicant, Miss Brown presented her complaint of unfair dismissal and breach of contract against her former employer, the Respondent Yakamoto Futon Centre Limited, to the Employment Tribunal. The claims are resisted. The case is proceeding in the London (North) Employment Tribunal.

On 21 January 1999, the Tribunal sent out a standard form notice of hearing to the parties, listing the case for hearing on 18/19 March 1999. That Notice stated:

"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."

On 17 February the Respondent's solicitors wrote to the Tribunal applying for a postponement of the hearing. They said this:

"We advised our client of the Notice of Hearing which had been set down for the 18th and 19th March. Our client company's two witnesses who would attend at the Hearing to give evidence are in the United States that week at a Futon Convention and this arrangement has been in place for many months now. If they do not attend this Convention a considerable amount of business and goodwill to their company could be lost.

Negotiations are currently progressing between the Respondent and Applicant via ACAS and as settlement to the claim is imminent and indeed it is envisaged that you will shortly receive confirmation of this from ACAS.

In all the circumstances we would respectfully ask you to withdraw the case from the List as our clients cannot attend on the two days allocated and if in the unfortunate event negotiations break down (which is not envisaged) a new date for the Hearing could be allocated at the Tribunal's convenience.

We await your confirmation that the above is acceptable and that the case has been withdrawn from the list of hearings due 18/19th March."

The Applicant opposed the application and by letter dated 26 February the Tribunal replied in these terms:

"1. I refer to your recent request for a postponement of the hearing in this case.

2. 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.

3. The Chairman refuses your request for the following reasons:

(1) You have not stated:

(a) the name of the witness

(b) what the witness can give evidence about

Have you considered whether some other witness can give the necessary evidence?

(2) Moreover your opponent has objected to the postponement requested."

Against that order refusing a postponement the Respondent appealed by Notice dated 4 March 1999. The appeal is resisted and we have taken into account the Applicant's answer, although she does not attend and is not represented today.

We are now told by Mr Doffman that two witnesses for the Respondent, Mr Robertson and Miss Kelly are booked to fly to the United States for the Futon Convention and will be away from 14 to 22 March. The Respondent is a small operation consisting of two directors and one other full time member of staff. There are no other witnesses to present the Respondent's case.

We remind ourselves of the test for interfering with Interlocutory Orders such as this. In Carter v Credit Change Ltd

[1979] ICR 908

/918, Stephenson LJ approved this passage from the judgment of Arnold J in Bastick v James Lane (Turf Accountants) Ltd

[1979] ICR 778

/782.

"Either we must find in order so to do that the Tribunal or its Chairman has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised or alternatively, if we do not find that that the decision which was made by the Tribunal or its Chairman in the exercise of its discretion was so far beyond what any reasonable Tribunal or Chairman could have decided that we are entitled to reject it as perverse."

In other words, it is not for us to look at the matter de novo. We also think that its right to consider the case on the basis of the material which was before the Chairman when making the order on 26 February.

No explanation has been given for the delay in applying outside the 14 day time period contained in the notice; as one might have expected, had this arrangement in fact been made prior to the notice of hearing going out. The only reason put forward on behalf of the Respondent is that negotiations were in train. That it seems to us does not bear on the question of whether or not the dates 18th and 19th March were convenient to the Respondent.

Further, we bear in mind that it is for the Tribunal Chairman exercising his or her discretion to take into account the interest of both parties. Plainly the Applicant is anxious that her case should proceed and be heard as soon as possible. These Tribunals are designed to operate speedily.

In those circumstances, we are unable to discern any error of law in accordance with the principles to which we have referred which would give us grounds for interfering with this Chairman's decision. Accordingly, we must dismiss this appeal.