TILLINGBOURNE BUS CO LTD v MR P J NORSWORTHY [1999] UKEAT 749_99_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 749_99_2506Case No Appeal No. EAT/749/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TILLINGBOURNE BUS CO LTDAPPELLANTMR P J NORSWORTHYRESPONDENT
Before
His Honour Judge John Altman Mrs T A Marsland Mr T C ThomasDate 25 June 1999
[1]APPEARANCES For the Appellants MR J GAFF (Commercial Director) Tillingbourne Bus Co Ltd Littlemead Alford Road Cranleigh Surrey GU6 8ND For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT JUDGE JOHN ALTMAN: This is an appeal from the refusal of the Chairman sitting alone at the Employment Tribunals in the London South Region on 23 June 1999, to adjourn the hearing of the Originating Application of the Respondent listed for 28 June 1999. The reasons given for the refusal of a postponement are these:
"1 Prior to 15 June you had not applied for a postponement. ACAS is an entirely separate organisation. 2 Your letter of 1 June to this office was answered by ours of 14 June. 3 We have been unable to contact the Applicant to seek his views. 4 The Chairman now considers it too late prior to the hearing to order a postponement: see the warning on the Notice of Hearing."
The decision whether or not a Chairman should grant an application to postpone a hearing is recognised to be a exceedingly difficult decision indeed. It requires the weighing up of a number of often conflicting interests, and of course, it in reality often means that the decision will affect the final hearing, sometimes to the extent of pre determining that decision.[2]The history of the matter is that the Respondent alleged that he was dismissed on 4 January 1999. His Originating Application was received on 24 March 1999 only 10 days before the expiry of the 3 month time limit. The Appellant entered a Notice of Appearance in well under 2 weeks. At that time, they had been advised by the Federation of Small Businesses. The Appellants are in modern terms a medium sized business, but they have no experience whatsoever of proceedings before Employment Tribunals prior to this one. Having entered their appearance, they heard nothing from the Employment Tribunal for a period of 2 months. They had spoken to ACAS on a number of occasions, but had no response from them. On 24 May 1999, the Employment Tribunal sent out a Notice of Hearing. That Notice of Hearing carried the following statement, which follows what is called the Industrial Tribunal's Practice Direction 1, in the following terms:
"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."
The "practice direction" is in effect a guidance which was issued by the then President of the Employment Tribunals to Chairmen as to the approach that would be taken. It is not in the character of practice directions, which are regarded in some way as binding upon parties, and the notes to the practice direction make this clear.[3]We have been told this morning by Mr Gaff who has appeared for the Appellant that their firm telephoned after receiving the Notice of Hearing to point out the witness difficulties that they had. Those difficulties, as they have been notified to us are considerable, but I return to that later. On 3 June as a result of discussions the Appellants actually wrote to the Conciliation Officer at ACAS about the procedure, saying that they could not provide witnesses because of director's holidays, exceptional busy period for business, inability to free key staff early on Monday, that there could be cancelled bus services, but that any date after 27 July they could come. Mr Gaff tells us that he did not know that ACAS was an inappropriate body to talk to. He thought that they were involved in the Tribunal procedure and would assist and we can recognise that that is understandable for someone who is not experienced in the refinements of Employment Tribunal procedures.[4]On 1 June in the meantime, the Appellant had written to the Employment Tribunal seeking leave to amend the Originating Application. Mr Gaff recognises now with hindsight and the knowledge that he has acquired that he should also at that time have asked for postponement of the hearing, but he then thought that it was being dealt with at ACAS. Incidentally, on 14 June 1999, the Employment Tribunal replied some 2 weeks later granting the application, but by the time of the exchanges to which I now come, the Appellant had not received that letter. On 15 June, the Appellants wrote with some anxiety about seeking a postponement direct to the Employment Tribunals not having had any responses from ACAS. That letter as it happens, and as Mr Gaff did not realise, would have been received totally out of the blue at the Employment Tribunal. It refers to the letter of 1 June, to which he had not at that time received an acknowledgement or reply, which is quite correct. Mr Gaff pointed out that the evidence of Mr Bowler, the Managing Director, was crucial but he was out of the country on holiday which had been booked many months earlier. He pointed out that the company had tried to contact ACAS without success and that it would be a short time in which to arrange legal advice.[5]We cannot help noting that it was 5.37 pm on 23 June 1999, over a week later, that the Employment Tribunal replied refusing the postponement. Mr Gaff got that on arrival at work the following day and immediately entered the Notice of Appeal. What was not contained in the letter of 15 June was the extent of difficulty that the Appellants would experience were a postponement not granted. For the sake of completeness we have been told today that Mr Bowler who is the witness now abroad on holiday was a witness to the incident which led to the ending of the Respondent's employment. The other person involved is in fact the Duty Manager in the premises on the day. If he had to leave, the only person then left would be Mr Blackmore, and his presence as a manager would not comply with Transport Regulations, and the Respondents would risk in those circumstances criminal proceedings being taken by an apparently ever vigilant traffic commissioner. Mr Gaff himself had witnessed part of the final incident and would speak of earlier incidents and would have to come. Another witness was to be away on a long weekend, but we are sure that that was not critical.[6]The rules of procedure contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1, Rule 13(7) provides, "A Chairman may postpone the day or time fixed for or adjourn any hearing". That is the only regulatory provision and the Tribunal has a very broad discretion to act in each individual case in the interests of the parties. The principles to apply were set out in Jacobs v Norsalter Ltd (1977) ICR 189 in the following terms:
"We accept of course that the power must not be used arbitrarily or capriciously and must certainly not be used in order to defeat the general object of the legislation. But subject to that it seems to us that the [Chairman of the Employment] Tribunal has a complete discretion, so long as he exercises it judicially, to postpone or to adjourn any case provided there is good reasonable ground for so doing."
The matter was also considered by the Court of Appeal in the case of Carter v Credit Change Ltd (1979) IRLR 361. In that case the Employment Appeal Tribunal had sought to provide a general guidance which limited the exercise of discretion when applications were made to postpone a hearing because there were proceedings pending in the High Court. The Court of Appeal said that such a restriction on the exercise of discretion in each individual case was not appropriate. In the words of Lord Justice Stevenson, "I would deplore any attempt to take from the Chairman of Industrial Tribunals the discretion which the rule gives them to decide what is best to do in each individual case in all the circumstances when faced with an application to postpone."[7]It seems to us, that the practice direction to which I have referred and the standard endorsement on the Notice of Hearing is just that, as soon as it is treated as anything more than one of the factors to take into consideration when dealing with an application to postpone. It is clear from the way in which the learned Chairman dealt with the application in this case, that on the face of his letter he did not exercise a broad discretion in the individual circumstance of this case, so much as view the individual application in the context of whether it fitted the narrow provision set out on the Notice of Hearing that notice must be given within 14 days. In those circumstances, it appears there is a risk that the warning on the Notice of Hearing becomes a general factor and restriction on the exercise of discretion and therefore inappropriately used if it is so treated. It is simply one factor to take into account.[8]What are we to do about it? We only have jurisdiction to deal with matters if there is an error of law. As was quoted from an earlier case in the Carter case to which I referred:
"Either we must find that the Tribunal or its Chairman has taken into account 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."
We recognise that delay defeats justice. The Employment Tribunals are designed to give rapid remedies. They were originally set up with reinstatement as the primary remedy and that can only ever succeed if proceedings are extremely quick. Secondly, we recognise that there is a need to balance the interests of justice, and taking a lead from the new civil procedure rules, we recognise that the interests of justice means the justice of all people appearing before Tribunals. If a case is taken out of the list too near to the hearing, a day is wasted which could have been assigned to parties in some other case whose hearing has been otherwise delayed.[9]The sort of factors that should be taken into account, we have no doubt, include first the conduct of the parties; have they generally complied with time limits? How much warning has been given in relation to their knowledge? Why did they not make the application earlier? Has the other party been granted similar indulgence? Secondly, what is the reason for the application and how pressing is it? Is there an important witness who cannot be present or can the evidence be agreed or submitted in writing? Could the case proceed with the proviso that if anything emerges which requires the witness who cannot be there, an adjournment part heard could be contemplated? Also, how long a postponement is being sought? Has the party furnished sensible availability details? Finally, and most importantly, what prejudice to the parties will be caused on the one hand if the postponement is refused and on the other if it is granted? In this case, the refusal of the postponement, we are satisfied, would hamper in a very damaging way the capacity of the Appellants to present their case at the final hearing. On the other hand the prejudice of delay in this case does not on the face of it appear to carry with it any obvious prejudice to the Respondent because it would be only for a matter of a few weeks.[10]In spite of what we have said about the practice direction to which I have referred, it is interesting to note that in the section that deals with postponements that practice direction states: "we will normally only postpone the hearing if something serious happens to prevent the attendance of someone whose absence would put either side at a serious or unfair disadvantage", and we cannot think of a better example of that than the non-availability of a crucial witness.[11]It is true in this case that the Appellant delayed in formally notifying the Tribunal, but it does not seem to us to be a fair response by the Chairman to blame the Appellant for contacting ACAS as being a separate organisation because one can understand the confusion that an Appellant would have.[12]The next point that is made by the Chairman, was that no postponement had been applied for before 15 June. That is true. There was a fundamental misunderstanding, which we have heard this morning, which was not before the Chairman, which is that Mr Gaff read the notice as if he was required to make an application not less than 14 days before the date listed for hearing, not the date of the notice. This is understandable and unfortunate. The second ground for refusal, namely that the Tribunal replied to the Appellant's letter of 1 June by 14 June does not seem to us to be relevant at all. Although by the time that letter refusing application on 23 June was sent, it was in reply to the Appellant's letter of 15 June, by which date they had not received the letter written the day before in any event. Thirdly, the Employment Tribunal says they were unable to contact the Respondent. That may account for the delay in replying to the application for postponement but it can hardly be laid at the Appellant's door as a reason for refusing his request that the Tribunal was unable to contact another party. Finally, and it seems to us the only ground upon which, in the end, the Tribunal really relied, was that it was too late in accordance with the terms of the Notice of Hearing.[13]Two factors are not referred to in that refusal. First of all, there is no consideration of the reasonableness of the Appellant's notifying the Employment Tribunal at that stage of the holiday absence of a critical witness and secondly, the Chairman failed to consider the prejudice that would be caused to the Appellant in being unable to call that witness at the main hearing when balanced against any prejudice that might be caused to the Respondent. In those circumstances it seems to us that there was an error of law on the part of the Chairman who is not named in the letter, in failing to consider those facts, which it seems to us were essential.[14]We have spent some time in dealing with this case because it seems to us that it is important to underline the difficulty which we recognise that Tribunals face when having to deal with applications of postponement. We happily in the Employment Appeal Tribunal only deal with these matters very rarely. The Tribunals have to deal with them day after day, but they are very difficult and they require a very balanced exercise of discretion in each case and it is perhaps helpful occasionally to be reminded of the principles which lay behind them. Accordingly, because of the errors of law to which I have referred, we have determined to allow this appeal and direct that the hearing of 28 June be postponed. We also direct that within 5 days of today's date, that is 30 June 1999, the Appellant notify the Employment Tribunal of any dates, in writing, during the next 3 months that would be inconvenient for the listing of this case and giving general reasons in relation to any such dates.