ITNET UK LTD v MR M FAGAN [2001] UKEAT 0719_01_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0719_01_2806Case No Appeal No. EAT/0719/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ITNET UK LTDAPPELLANTMR M FAGANRESPONDENT
Before
His Honour Judge Peter Clark Mr D J Hodgkins Cb Mr D J JenkinsDate 28 June 2001
[1]APPEARANCES For the Appellant MISS L CHUDLEIGH (Of Counsel) Instructed by: ITNET UK Ltd Laburnum House Laburnum Road Bournville Birmingham B30 2BD For the Respondent NO APPEARANCE ON OR ON BEHALF OF RESPONDENT JUDGE PETER CLARK This case is currently proceeding in the Stratford Employment Tribunal. We have before us today an appeal by the Respondent against the Employment Tribunal's refusal, most recently by order of a Chairman, Mr Cole, dated 29 May 2001, to postpone the substantive hearing of the case presently fixed for 26-31 July 2001.[2]The nature of the case as appears from the forms ET1 and ET3 is that the Applicant Mr Fagan brings a complaint of unfair dismissal and breach of contract against his former employer the Respondent.[3]The claim is based on an allegation of constructive dismissal. It seems that a complaint of sexual harassment was made against the Applicant by a temporary member of staff, Naomi Thomas. That complaint was farmed out to a third party, The Industrial Society, for Investigation. A report was prepared. It was then proposed that a disciplinary hearing should take place. Before it could take place the Applicant resigned, claiming constructive dismissal. The claim is resisted.[4]The listing history of the matter is as follows. The case was originally listed for 2 days during May 2001. It was common ground between the parties that 2 days would be insufficient time to dispose of the matter and that 4 days would be required. The hearing was postponed.[5]On 17 January 2001 the new dates in July were notified to the parties.[6]On 22 January Ms Dainter, the Respondent's Human Resources director, wrote to the Employment Tribunal, stating that those dates were not acceptable due to some of the Respondent's witnesses being on annual leave. She asked for alternative dates outside July and August. It now transpires that she had arranged 2 months leave for herself to take place during the months of July and August.[7]Further correspondence ensued and on 28 March a Chairman refused the Respondent's application for a postponement of the July dates. Ms Dainter wrote on 2 April, saying that the Respondent's key witness (it turns out herself) was unable to attend the hearing in July or August. The refusal to postpone was repeated by a Chairman, Mr J Leonard, by letter of 4 April.[8]On 13 April Ms Dainter wrote to the Employment Tribunal, suggesting that she give evidence from abroad by audio or video tape.[9]That application was turned down by the Regional Chairman Mr Lamb by letter dated 26 April and in any event there was strong objection from the Applicant's solicitors to any postponement by letter dated 1 May.[10]On 8 May Ms Dainter repeated her request for a postponement. On 17 May Mr Cole sought further information from Ms Dainter as to why she would be abroad during July and August. On 18 May the Applicant's solicitors wrote to the Employment Tribunal, resisting any application for the case to be taken out of the list for July.[11]On 23 May Mr Cole again directed that the case remain in the list. On 24 May Ms Dainter wrote to the Employment Tribunal, stating that as a result of family issues she would be taking 2 months leave of absence from the Respondent and would be looking after her family in the Balearics. She enclosed her flight ticket for departure on 30 June and return to the United Kingdom on 1 September, which had been issued on 11 January 2001.[12]On 29 May Mr Cole wrote finally, again refusing a postponement. His reasons were put in this way:
"A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay. A Chairman of the Tribunals, Mr Cole, refuses your request, for all the previous reasons presented on the case. He has no doubt the witness will be away and a return to the UK will be inconvenient to her. However, he is still not persuaded that "family commitments" should supersede the interest of justice or the hearing, as now listed, which must take precedence. Inconvenient as it may be, a temporary return to the UK may be required and is quite possible."
Against that ruling the Respondent now appeals.[13]It must be clearly understood that the Employment Appeal Tribunal has no general power of review over Interlocutory Orders of Employment Tribunals such as this, made under Rule 13(7) of the Employment Tribunal Rules of Procedure 1993. See Medallion Holidays Ltd v Birch [1985] ICR 578. We can only interfere where the order in question is Wednesbury unreasonable, that is, the Chairman has taken into account irrelevant factors failed to take into account relevant factors or has otherwise reached a perverse conclusion in the legal sense. See Carter v Credit Ltd [1979] ICR 908 approving the judgment of the Employment Appeal Tribunal in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778.[14]These principles are well-known and accepted by Miss Chudleigh, who appears on behalf of the Respondent in this appeal. In support of the appeal Miss Chudleigh takes 2 points. First, she submits that the reason given for refusing a postponement in March 2001 was demonstrably wrong. The reason then given was that notice went out on 17 January 2001 and to postpone it now would cause serious delay. She points out that in fact, notwithstanding a subsequent letter which suggested to the contrary, the Respondent below, Appellant before us had applied for an adjournment by letter dated 22 January and the Employment Tribunal had failed to deal with the matter for over 2 months.[15]Whatever complaint may be made about the delay in administration in the period 22 January to 28 March 2001 the fact is that events have moved on and we have to deal with the matter as it appeared before Mr Cole when he made his final order on 29 May. It seems to us that it is a relevant factor for that Chairman to take into account that if he were to allow the adjournment on 29 May, there having been no appeal against any of the earlier orders, then it would inevitably involve serious delay in re-fixing this 4 day case.[16]Based on a listing in July allotted in January 2001 it is reasonable to infer that a further 6 months would be required before the date could be re-fixed. It goes without saying that in reaching a conclusion in this case the Chairman was obliged to take into account also the interests of the Applicant who indicated his anxiety to get on with the case and the wider interest of justice which require that cases are heard as soon as reasonably practicable.[17]The second point taken by Miss Chudleigh in support of the general submission that the Chairman's conclusion was perverse in the legal sense was that the Respondent's key witness Ms Dainter was unavailable for the hearing as she would be abroad, as would another witness who was not named and we know not what evidence he or she will be able to give.[18]It has finally been explained to us the reason why Ms Dainter cannot return and indeed why she has taken 2 months leave of absence. We need say no more than that it is a perfectly understandable and legitimate domestic reason. What strikes us having read the pleadings in this case is the proposition advanced that Ms Dainter is a key witness in this case. We are simply not persuaded that that is correct. It seems that Ms Dainter arranged for the investigation into Ms Thomas' complaint and other matters which arose to be dealt with not in-house but by the Industrial Society and that on 29 May 2000 she suspended the Applicant.[19]It is alleged that suspension was without good cause but we are told that the contract of employment between the Applicant and the Respondent provided for disciplinary suspension with pay which was what happened in this case and there appears to be a complaint that the letter requesting the Applicant to attend the disciplinary hearing was sent by second class post so that it arrived less than 5 days before the date fixed for the disciplinary hearing.[20]In these circumstances we are quite unable to see why Ms Dainter's evidence cannot be given in written form if she is not able or prepared to return from Majorca in order to give evidence in this case.[21]Perhaps more worryingly the impression we are left with is that on the basis that she believed she would obtain a postponement Ms Dainter has not carried out the necessary preparation for this case to come to a hearing. If that is the position that is entirely a fault that lies with her.[22]Having considered the points made by Miss Chudleigh we are quite unable to identify any error of law in the Chairman's refusal to postpone this hearing and in those circumstances we must dismiss this appeal.