MRS A HOLMES v MISS K J ROYAL [1999] UKEAT 705_99_1510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 705_99_1510Case No Appeal No. EAT/705/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A HOLMESAPPELLANTMISS K J ROYALRESPONDENT
Before
His Honour Judge J Altman Mr J A Scouller Mr N D WillisDate 15 October 1999
[1]APPEARANCES For the Appellant Mr N Giffin Employment Law Appeal Advice Scheme JUDGE ALTMAN: This is an appeal from the Employment Tribunal sitting in Exeter on the 2nd February 1999. It comes to us by way of preliminary hearing to determine if there is a point of law which warrants this matter being argued in full before the Employment Appeal Tribunal at a later date.[2]The claim before the Employment Tribunal was for non-payment of wages and holiday pay. The claim in respect of wages was effectively the backlog, so it is alleged by the Appellant, of money held back under the PAYE provisions in respect of the tax on the wages paid by her to the Respondent. The Respondent says on the contrary that was part of her nett income to which she was entitled.[3]The Employment Tribunal therefore had to determine whether the £180 that it was agreed the Respondent was entitled to by way of wage each week was the sum she was entitled to gross before deduction of tax or nett after deduction of tax. The Employment Tribunal have before it 2 contractual documents, the last of which in time said that it was £180 nett per week. There was also a claim for holiday pay which was resolved by the Employment Tribunal. The Appeal arises because the Chairman at the outset of the hearing refused an application for adjournment which had been brought on the basis that the Appellant's main witness Mr Ryder was at very short notice unavailable to attend the hearing, for reasons which we fully accept and which clearly could not have been notified to the other party or to the Tribunal before the time it was.[4]That witness Mr Ryder would have given evidence to do with the impact of tax on the £180 per week, not so far as it concerned the formation of the contract but so far as it concerned subsequent conversations between him and the Respondent in which he would have given evidence that she confirmed the original terms which, without too rarefied a view of the admissibility of evidence, it is said would have been telling evidence to clarify the arrangement that had been entered into between the parties. He did not give evidence about holiday pay and so his absence, except perhaps peripherally in relation to credibility, could not have greatly interfered with the ability of the Tribunal to deal with that issue.[5]It is suggested that the evidence of Mr Ryder was important and that the Appellant was denied a fair hearing because of the Chairman's refusal to adjourn the proceedings. The regulations which govern the procedure before Employment Tribunal's provide a permissive power in Regulation 13 (7) of the first schedule to the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993. That is a power to grant an adjournment . The principles to apply were set out as long ago as 1977 by Mr

Justice Phillips in the case of Jacobs and Norsalta 1997 ICR189 in which he said:

"We accept of course that the power under rule 13(7) must not be used arbitrarily or capriciously and certainly not be used in order to defeat the general object of the legislation. But, subject to that, it seems to us that the Employment Tribunal has a complete discretion, so long as it exercises it judicially, to postpone or adjourn any case provided there is good reasonable grounds for so doing and it must follow that by the same token he has an equivalent discretion to refuse to postpone or adjourn any case"
. Is there any material before us that the Chairman acted arbitrarily or capriciously?[6]Although it is not dealt with expressly by the Chairman he would have to weigh in the balance a number of factors. First, Mr Ryder could give relevant evidence. On the other hand the parties themselves were there, the day had been set aside and in the balance, the Chairman would have to weigh the fact that Employment Tribunals, like so many other institutions these days, have limited resources and must spread them so as to do justice between all parties that come before them, and not attribute too many days to one party which may be to the disadvantage of another. He would have to weigh in the balance the fact that if it was a former employee to whom this sum of money may well have been important and the potential prejudice caused by any further postponement of the receipt of money to which he may be entitled. We can see nothing whatsoever in the material before us upon which any argument can be based that the Chairman acted unfairly or capriciously or arbitrarily in refusing a postponement.[7]Employment Tribunals unlike the High Court or more formal courts, are designed to deal speedily and summarily with issues between parties in an informal way. In order for things to be done quickly and informally this may sometimes mean that they are not done with the completeness and perfection which time and expense could provide. But that does not mean to say that it produces an unfair trial. We can find no error of law whatsoever in the refusal of postponement in this case and accordingly we dismiss the appeal at this stage.[8]In conclusion, we are most indebted to Mr Giffin who has undertaken to represent the Appellant and has given freely of his time and considerable experience in order to do so. Whilst the Appellant has not succeeded she should know that she has been exceedingly well served and every point that could conceivably have been properly raised on her behalf has been raised.