Norwich Airport Staff, Sports Social Club v Turner [1999] UKEAT 557_98_1901

EAT
Norwich Airport Staff, Sports Social Club v Turner
[1999] UKEAT 557_98_1901 · 1999-01-19

JUDGE H WILSON :

This appeal comes before the Tribunal, following leave, because of the matters set out by Judge Hicks in his remarks following the preliminary hearing.What happened was that a notice of hearing was sent to the Appellant on 18 June 1997, the application to the Industrial Tribunal having itself been issued some considerable time before that and initial notification having been given about four months after the issue of the application to Mr Jordan.Mr Jordan is the club treasurer of the Norwich Airport Staff, Sports and Social Club, the Respondents to Mrs Turner's application. He responded to the notification of hearing on 30 June, explaining that he was often called out at a day's notice and asking for a different date, namely, 7 and 8 August, when he certainly could attend. The Chairman dealt with that application for a change of date on 9 July, saying the hearing must take priority. Mr Jordan wrote again, on 10 July, referring to a telephone conversation with Mr Wilkinson, who wrote on behalf of the Regional Secretary of Employment Tribunals, repeating what he had said in his first letter. That letter was replied to by the Chairman, or rather the reply of 15 July, was signed by Mr Wilkinson on behalf of the Chairman, quoting what the Chairman had commented. Eventually, on 17 July, Mr Jordan received notification that he would indeed not be able to be present on the date in question because on that day he received a faxed copy of a flying programme which involved him.Mr Jordan had said in his letters from the outset that he "probably" would not be able to attend the hearing on the date given. Despite the fact that he was going by the invitation which was contained in the notice of hearing about applying for an adjournment, he at no stage - as he very candidly agrees today - gave the full grounds of the reasons why he was writing as he did. The form IT4, at paragraph 2, provides that:
"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 the notice. Any such application must be in writing and state the full grounds and any other available dates in the six weeks following the above hearing date."
The full grounds, as disclosed to us today, were that Mr Jordan was the honorary treasurer of the Respondent club and was the person who had had personal dealings with the matters which gave rise to Mrs Turner's application. He was also, from February 1995 until November 1998, an employed person required to go wherever he was required to go by his employers at little or no notice quite often. He was one of two full-time pilots who received little advanced warning of what their duties would be. He was not, therefore, a free agent who could organise his affairs to accommodate the date of the hearing that had been given. He says - and we have no reason to doubt it - that he including all this information in his telephone calls with Mr Wilkinson but he did not think that all that was relevant to put in the letters. Unfortunately, in our view, bearing in mind the wording of paragraph 2 on form IT4, it clearly was.In approaching this matter we are bound by what the Court of Appeal said in the case of Carter v Credit Change Ltd [1980] ER vol 1, 252. At page 256, Stephenson LJ referred to an earlier case in which the principle was laid down that the discretion whether to grant or refuse an application for an adjournment was that of the Chairman and not of the Employment Appeal Tribunal. Unless there was clear evidence that the Chairman, in exercising his discretion, had done so perversely or wrongly in law or, in exercising it, had left something out of account which he should have taken into account, there would be no ground upon which the Employment Appeal Tribunal could interfere with the way in which the discretion had been exercised. In particular, the fact that the Tribunal might have come to a different conclusion is wholly irrelevant.Having heard this matter, and having heard in some detail from Mr Jordan, he does not suggest that the Chairman was perverse. He probably thinks he came close to being that but, on the other hand, bearing in mind what the Chairman knew, we would say that he was not perverse, neither is there any error of law and, on what the Chairman knew from Mr Jordan's letters, we cannot say that the exercise of his discretion left out of account anything to which it should have had regard. Having said that, even if Mr Jordan's letters had been as comprehensive as it seems his telephone calls to Mr Wilkinson were, they would probably have led to other questions from the Chairman before he decided which way he would exercise his discretion, but that is by way of observation.So far as we are concerned the first hurdle which Mr Jordan has to surmount is that of satisfying us that the discretion left out of account something which should have been taken into account. Unhappily, he has failed to do that and therefore the appeal must fail.In passing, the other point made by Mr Linden, on behalf of the Respondent to the appeal, concerned whether the appeal was timeous: we have no doubt that the appropriate timing starts from the date when the extended reasons were received by the Appellant, the period is 42 days and Mr Jordan is clearly within that time limit.