POSTWORTH LTD T/A NCS v (1) MR T GREENAWAY (2) MR A LINES (3) MR D GREENAWAY [1999] UKEAT 781_99_0907

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 781_99_0907

Case No Appeal No. EAT/781/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

POSTWORTH LTD T/A NCSAPPELLANT

(1) MR T GREENAWAY (2) MR A LINES (3) MR D GREENAWAYRESPONDENT

Before

Mr Justice Morison

Date 9 July 1999

[1]APPEARANCES For the Appellants NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS OR RESPONDENTS For the Respondents MR JUSTICE MORISON (PRESIDENT) : This is an appeal which has come before the President at very short notice. The background to this appeal is as follows.

[2]There was a hearing at Reading on 8 June 1999 before Mr Edwards, sitting alone, on a preliminary issue as to whether the Applicants in question, Mr T.T. Greenaway, Mr A.P. Lines and Mr D.J. Greenaway, were employees of a company called Postworth Ltd t/a NCS. That company is an employment agency which is a wholly owned subsidiary of Tarmac. It has 50 clients and places workers with those clients who are in the construction industry.

[3]The Applicants had all been working for the Respondent company as scaffolders since 1991. They have brought complaints of unfair dismissal against the company and, as a preliminary issue, the Employment Tribunal considered, as I have indicated, whether they were employees and concluded that they were. That decision was sent to the parties on 18 June 1999 and in due course a Notice of Appeal was filed dated 6 July 1999.

[4]On 17 June 1999, the day before the decision was sent to the parties, the company requested the Employment Tribunal to adjourn the proceedings which had been fixed for Monday 12 July. They applied for that adjournment on the basis that they were intending to appeal the decision and would do so as soon as they received it.

[5]The application for an adjournment was refused in these terms:

"Your request for a postponement of the hearing listed for Monday 12 March 1999 has been refused. The Chairman is not prepared to vacate the hearing until he sees a Notice of Appeal."

[6]As I understand it a copy of the Notice of Appeal was sent to the Employment Tribunal and the Tribunal was requested on 8 July for a postponement of the hearing. The Regional Chairman considered that application, but saw no reason to grant it and confirmed the decision for the reasons already given.

[7]The lawyers acting for Postworth Ltd have filed a Notice of Appeal indicating that they wish the Employment Appeal Tribunal to overturn the refusal to postpone the case.

[8]There was further correspondence between the parties and I have two letters from the Employment Tribunal dated 9 July, that is today. The Chairman refused, again, the application for an adjournment of the merits hearing, on the grounds that it was in the interests of justice that the full cases be heard as soon as possible, when either party may wish to appeal against that later decision. If there is such an appeal then it can be heard at the same time as the appeal already before the Employment Appeal Tribunal, and copies of the exchange of correspondence being faxed to all concerned.

[9]The grounds for appeal dated 9 July 1999 are that it would be unnecessary to incur the Tribunal's time and costs of the substantive hearing if the EAT were to uphold the first appeal which has been lodged.

[10]All of the parties have to travel some distance to attend the hearing and the Applicants will need to take a day's leave from work, which is likely to be unpaid, and that the Applicants' representative had verbally confirmed, in a telephone conversation on 8 July, that he would put their consent in writing to the Employment Tribunal and the EAT. Unfortunately, however, it is said that the writer has been notified by the Applicants' representative's office today that he is out of the office and may not be in a position to confirm this consent in writing forthwith.

[11]Questions as to whether there should be an adjournment or not are always difficult and must be made on judicial grounds. Having read the terms of the judgment of the Employment Tribunal, which was made on the issue of whether the Applicants were employees or not, and having regard to the correspondence to which I have referred, I am not persuaded that the Chairman has erred in law in the exercise of his discretion.

[12]It seems to me that it would be desirable for one application to lead to one appeal. As things are constituted at the moment there is a danger, as the Chairman rightly pointed out, that this one case could lead to two potential appeals. It seems to me in those circumstances, he was well entitled to refuse to grant the adjournment. I support his decision on the grounds that it was one which he was entitled to make in the exercise of his discretion.

[13]The appeal is dismissed.