COSTAIN GROUP PLC v MISS A DYTE [2000] UKEAT 867_00_2707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 867_00_2707Case No Appeal No. EAT/867/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COSTAIN GROUP PLCAPPELLANTMISS A DYTERESPONDENT
Before
His Honour Judge Peter ClarkLord Davies of CoityDate 27 July 2000
[1]APPEARANCES For the Appellant MR S MOBBS (HR Officer) For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT JUDGE PETER CLARK : In this case, presently proceeding before the Leeds Employment Tribunal, the applicant, Miss Allison Dyte presented her complaint of constructive unfair dismissal on 31 March 2000. She was employed by the respondent, Costain Group Plc, as an Area Accountant from 4 August 1986 until her resignation effective on 28 January 2000. The claim is resisted, the respondent having entered a detailed Notice of Appearance on 20 April 2000.[2]The case was originally listed for hearing on 24 July 2000 by a Notice dated 5 June. Following receipt of that Notice the applicant's solicitors wrote to the tribunal on 14 June seeking a postponement on the grounds that the solicitor in that firm with conduct of the appellant's case, Mr Crossling, would be unavailable for the hearing fixed for 24 July.[3]By a letter dated 15 June the tribunal responded. A Chairman, Mr Grazin, had granted the postponement. Without reference to the respondent a new Notice of hearing was enclosed with that letter. The new date of hearing was to be 7 August.[4]This time the respondent applied for a postponement. Their representative, Mr Mobbs, wrote on 29 June by fax, stating that one of the respondent's principal witnesses, Mr Martin Hunter was unable to attend the hearing on 7 August due to a previously arranged business meeting. Mr Mobbs gave dates to be avoided in August and September.[5]The tribunal replied on 3 July 2000. The respondent's application had been put before a different Chairman, Mr Simpson. He gave the following direction:
"The fact that the listed date is not convenient is not a ground for postponement. Tribunal hearings are judicial proceedings which should be afforded priority over other commitments."
[6]Mr Mobbs wrote again on 4 July. He gently pointed out that the applicant's application for an adjournment on the basis that her solicitor was unavailable had been granted but the respondent's application on the grounds that a material witness had a previously arranged business meeting was not. The approach of the two Chairmen involved was inconsistent. Costain's right to a fair trial was being infringed. The tribunal was asked to reconsider. Failing an adjournment the respondent sought extended reasons for the "decision" with a view to a possible appeal to this appeal tribunal.[7]On 7 July the Tribunal replied on behalf of Mr Simpson. He said:
"A direction is not a decision for which reasons, be they extended or summary are given other than those already set out in my earlier direction."
Pausing there, it is correct that there is no obligation on the Employment Tribunal or a Chairman to provide reasons for an interlocutory order, not being a decision within regulation 2(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 , under rule 10 of the Employment Tribunal Rules of Procedure contained in schedule 1 to the regulations.[8]Against Mr Simpson's order Costain now appeal. Mr Mobbs recognises realistically, the difficulty in appealing postponement orders. see Carter v Credit Change Ltd [1979] IRLR 361. It is for the appellant to show that the Chairman reached a conclusion which was Wednesbury unreasonable.[9]He points to the contrast between the orders made by Mr Grazin and Mr Simpson, referring to the tribunal's guidance notes, which state that non-availability of a particular solicitor is not normally a sufficient reason for postponing a hearing.[10]It must also be said that the applicant's solicitors do not oppose this appeal.[11]We have considerable sympathy for the position in which the respondent finds itself. Nevertheless, there are two points which strike us and which we put to Mr Mobbs. First, tribunal Chairmen have a wide discretion in these matters; one might allow a postponement, another not. Neither approach will necessarily be wrong in law. Contrasting tribunal decisions are permissible: see Gilham v Kent County Council (No.2) [1985] ICR 233, 240, per Griffiths LJ. What happened in this case may not appear to be fair, but that does not of itself amount to an error of law.[12]Secondly, we must approach this appeal on the basis of the material before the Chairman, Mr Simpson. It is, we think, not insignificant that in her Originating Application the applicant mentions three employees of Costain. In the Notice of Appearance Mr Mobbs mentions those same three employees plus two others. They do not include Mr Martin Hunter. We are told today that Mr Hunter is the Finance Director of Costain, that he is due to attend a high level internal meeting on 7 August and as to the materiality of his evidence, we are told that it was Mr Hunter who decided on the reorganisation which ultimately the applicant contends led to her resigning in circumstances amounting to constructive dismissal. None of this detail as to Mr Hunter's evidence was given at the time of the application for postponement made to the tribunal. We think it vitally important that parties applying for a postponement should set out in particular detail their grounds of application. We refer to the tribunal's guidance relied on by Mr Mobbs. It states:
"Postponement requests must be in writing and include full reasons."
[13]In these circumstances we are not persuaded that the Chairman, Mr Simpson, fell into error as a matter of law in refusing the respondent's postponement application. It follows that we are unable to interfere with the exercise of his discretion.[14]Finally Mr Mobbs raised a possible argument, under Article 6 of the European Convention on Human Rights, the right to a fair trial. However, in submission this morning he has indicated to us that that point adds nothing to the submissions earlier made and rejected by us. Accordingly, this appeal is dismissed.