1) MR P ETHERINGTON 2) MR S JAMES v OLDROYD PUBLISHING GROUP LTD [2001] UKEAT 154_01_0602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 154_01_0602Case No Appeal No. EAT/154/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) MR P ETHERINGTON 2) MR S JAMESAPPELLANTOLDROYD PUBLISHING GROUP LTDRESPONDENT
Before
Mr Recorder UnderhillDate 6 February 2001
[1]APPEARANCES For the Appellants No appearance or representation by or on behalf of the Appellants For the Respondent No appearance or representation by or on behalf of the Respondent MR RECORDER UNDERHILL QC There are two Applicants in these conjoined proceedings, Mr James and Mr Etherington, who are the Appellants in this appeal. They are both represented by a firm called Kerr-Smith Associates, who describe themselves as "Industrial Relations and Employment Law Advisers".[2]The Appellants each claim that they were unfairly dismissed and suffered unauthorised deductions of salary and breaches of contract. The nature of the applications need not be gone into any further than that, save to note that they would appear to involve some significant issues of fact.[3]The Appellants received from the Employment Tribunal on 10 January 2001 a Notice of Hearing at the Employment Tribunal in Liverpool for 7 February. The Notice of Hearing stated that the case had been given a maximum time allocation of 1½ hours for its disposal including remedy, if appropriate. It is not clear to us whether the Tribunal followed what used to be the procedure, in at least some Tribunals, of ascertaining before fixing a date whether there were any dates to avoid on the part of either of the parties. It appears from the correspondence that there had been some communication between the Tribunal and the Respondents' representatives, in which the Respondents had asked for the case not to be listed in late 2000, but we do not know whether the case would otherwise have been listed then.[4]On receipt of that Notice, Kerr-Smith Associates wrote to the Tribunal on 15 January 2001 stating that:
"the writer, as representative for the Applicants, is already committed to representation at another Tribunal on 7 and 8 February in Glasgow" and asking for another date. Details were given of dates to avoid in the next 3 months The letter also stated: "it is considered that 1½ hours may not be sufficient time allocation. It is felt that at least 3 hours will be necessary."
[5]The Tribunal replied on 23 January. The letter stated:
"A Chairman of Tribunals has instructed that I write and inform you that he does not agree to your request for a postponement. These cases started in August 2000, the time has come when they should be heard; that is the priority now. You should put in operation the arrangements you have in place to cover contingencies such as this. Asking for a postponement will not do."
[6]Kerr-Smith Associates replied on 26 January, taking issue with that response, stating that they had no:
"arrangements …… to cover contingencies such as this" and renewing their application. We need not set out the detailed terms of the letter, but it concluded by saying: "
The respondents now inform [us] that they intend to call three witnesses, and the evidence of one will be lengthy. Including the applicants themselves, there will be three witnesses for the applicants, and thus we anticipate that the hearing may not complete in half a day, and may not even complete within a day."[7]That letter received a short reply dated 30 January 2001:
"A Chairman has refused your request for a postponement of the hearing on Wednesday 7 th February 2001. He has said that there will have been enough time between mid January and 7 th February, the date of the hearing, to arrange for other representation. There still is. The question is not whether the appointment has caused any delay, nor indeed whether there has been culpable delay. The fact is that the time has come when the case should be heard."
[8]It is from that refusal to postpone the hearing, which is at present listed for tomorrow, that the Appellants appeal.[9]The jurisdiction to review an Order of the Tribunal of this kind is extremely limited; the guidance is helpfully summarised in Harvey at para T 759, but we need not set that out here. Our task today is made peculiarly difficult by the fact that this appeal is being heard at the very last possible moment and that we have no appearances from either party. The notification which we have now seen from the Respondent states that he does not intend to appear, but continues as follows:
"The Respondent has no wish to deny the Applicants a full and fair hearing at Employment Tribunal. However it is felt that the request for a postponement was made rather late in the day. A postponement will involve the Respondent in additional costs and disruption. As the Respondent's representative, I need a pre-hearing meeting with my client. This is arranged for 4pm on Tuesday 6 February in St Annes on Sea. I must therefore leave my office in Scarborough at 11.30 am. I am travelling by train and my departure cannot be delayed. Should a postponement be granted, the Respondent would wish to apply to the Employment Tribunal for the additional costs incurred in this matter."
We have had no explanation from the Appellants' representative as to why they have not appeared. We simply have the standard forms stating:
"I do not intend to be present at the hearing"
We were not aware that there would be no appearances until we had already started another case, and we have accordingly ended up hearing the matter at half past two. It goes without saying that the situation is extremely unsatisfactory. There is a good deal which we would have wished to establish from the representatives. However, we have felt obliged to deal with the appeal on the material available.[10]The reason given by the Tribunal for refusing the Appellants' request is, essentially, that the unavailability of a party's representative for the date fixed is not a good reason for an adjournment, and that if a clash of commitments occurs the party concerned will have to change representatives. We see nothing wrong with that approach in general, and it is particularly compelling if the parties were given an opportunity to state dates to avoid before the dates were fixed. In particular cases, a postponement may be necessary due to the unavailability of a representative which is genuinely unforeseeable or where there are exceptional circumstances which render it necessary in the interests of justice for the party to be represented by a particular representative. But generally an impossible situation would be created if the vicissitudes of diary management, in a small firm of representatives, were treated as a sufficient reason for adjourning cases once they had been fixed; parties have to be prepared to change representatives and, if necessary, to do so at reasonably short notice.[11]If this were the only point in the case, we would be very reluctant to interfere with the Tribunal's exercise of its discretion. However, there is another element here. The case was listed for 1½ hours only. Whether or not that was ever a realistic estimate, the information contained in Kerr-Smith Associates' second letter makes it clear that it is certainly not remotely realistic now to think that this case could be dealt with properly in that sort of timescale. That information about the length of the hearing became available after the Tribunal made its initial decision and was not addressed in the Tribunal's second letter. It is, we think, a sufficient reason for interfering with the Tribunal's exercise of its discretion.[12]We accordingly allow the appeal and would adjourn the date fixed for tomorrow. The matter will have to be dealt with in the usual way, by the Tribunal re-fixing a fresh date, having regard to realistic estimates as to the likely length of the case. The Tribunal will no doubt follow its normal procedures as regards ascertaining the availability of the parties' representatives, and we emphasise what we have already said: that the convenience of the representatives, whilst no doubt it is a proper consideration in fixing a date cannot be the decisive factor; and still less can it entitle a party to an adjournment of a date once fixed.[13]We repeat that this is not a happy situation. We have only very reluctantly intervened in the knowledge that it will cause disruption to the Tribunal, to the Respondent and, least importantly, to the Appellants themselves. But there is a real risk of an equally unsatisfactory situation if the case goes ahead tomorrow with a patently inadequate time estimate.[14]The Respondents have, as we have quoted, indicated that they may wish to apply for an order for costs. That is not a matter we can deal with, but nothing that we have said, on this occasion, should be taken as expressing any view that such an application would be inappropriate.